DECLARATION OF NOEL E. NAPOLILLI
I, Noel E. Napolilli, make the following declaration pursuant to 28 U.S.C. § 1746.
1. I am a federally licensed firearms dealer and was a special occupational taxpayer under 26 U.S.C. § 5802 doing business as Nap Armaments, 251 Napolilli Lane, Fairbanks, Alaska 99710, until 1995. I originally received my first license in 1971. I am a retired public high school teacher and coach of 28 years. I am an honorably discharged veteran of the Missouri National Guard, a licensed pilot, a licensed merchant marine captain, and was a member of the Fairbanks auxiliary police and the Alaska State Defense Force, with the rank of major.
2. In the early 1980s I was a partner in a partnership which was itself a federally licensed firearms dealer and special occupational taxpayer, authorized to deal in firearms governed by the National Firearms Act of 1934, 26 U.S.C. § § 5801-5872 (hereafter IINFAII), such as machineguns and destructive devices. During that period the partnership purchased on my behalf a German MP-40 machinegun (Serial No. 4212) from Specialty Arms of Springfield, Ohio, a now defunct concern. The Bureau of Alcohol, Tobacco and Firearms (hereafter "BATF") approved the Form 3 transfer from Specialty Arms to the partnership at that time and re-registered the gun in the name of the partnership. The gun was shipped to us.
3. In mid-1985 the partners decided to dissolve the partnership and we submitted BATF transfer forms to transfer the partnership inventory to the various partners. Some 32 BATF Forms 3 were submitted to BATF to transfer and re-register various guns to me as an individual special occupational taxpayer. All 32 transfers were approved including one for the MP-40 in question, and I took sole custody of those firearms, entering them in my bound book.
4. In September of 1991 BATF conducted a compliance inspection of my firearms business. The inspector began by comparing my on-hand inventory with a computer print-out of NFA firearms shown as being registered to me in the national registry. That comparison showed me to be in possession of four machineguns not shown to be registered to me, a serious federal felony if true. I was a part-time, low-volume dealer who does not transfer many NFA firearms (less than six per year on average). The discrepancy in the inspector's print-out was thus not due to turnover in my inventory. In fact, the four unaccounted-for guns had been registered to me and in my possession for several years.
5. I was able to produce original BATF-approved Forms 3 for all four guns showing them legally transferred to and registered to me and BATF ultimately agreed that three of the four were registered to me. BATF has never revealed how or why three of the guns were ultimately determined to be registered to me or why their print-out failed to reflect that fact. Form 3 transfers are obtained by the transferor submitting counterpart original forms to BATF. If the transfer is approved, one approved original form is retained by BATF and the other original is returned to the transferor for transmission to the transferee along with the gun.
6. With respect to the fourth gun, the MP-40, which I submitted to BATF for examination, BATF initially took the position that my registration form must be a forgery (apparently because it was a Xerox copy of an original -- a fact I had never noticed before since receiving it from the partnership in 1985 in a package containing 31 other original Forms 3 which were all approved at the same time). When BATF sent the form to its laboratory, it was determined that it was not a forgery, but a Xerox copy of an authentic original. A true copy of that laboratory report is attached as Exhibit 1. BATF has never accounted for the original from which the Xerox copy must have been made, nor revealed why the partnership was unknowingly sent a Xerox copy of that original in 1985 instead of the original that should have been sent according to Treasury Regulations.
7. Confronted with apparently irrefutable proof that the gun was lawfully registered, even though their records apparently neglected to show that fact, BATF then switched theories and contended that the gun must have originally been registered as a "remanufactured" gun, and because it showed no signs of welding it must have originally been registered under false pretenses and was therefore contraband. No further argument was raised that it was not registered to me and no explanation was ever forthcoming as to why the national registry apparently showed no evidence of the gun at all.
8. My attorneys and my congressional delegation pointed out to BATF that (1) "remanufacturing" was not the only legal way the gun could have been originally registered; (2) only the original registration (by a defunct Ohio company) would show how the gun was registered, and therefore whether the registration was false; and (3) BATF had apparently lost or destroyed the very documents which would settle the issue.
9. BATF remained both adamant and obstinate. It never conceded that it must have lost or destroyed the original registration (and all subsequent transfers). It never acknowledged that it had falsely suspected me of forgery. It would never acknowledge that my "unforged" transfer form had to be a copy of an authentic original transfer form. It never revealed why the partnership had been sent a Xerox copy of the form rather than the original. Instead it seized and kept (and presumably destroyed) my valuable machinegun.
10. I brought a lawsuit for the return of my gun but with the Waco and Ruby Ridge tragedies happening at that time, the fear of BATF was paramount in my mind. This, added to the cost, strain and pressure of dealing with an unresponsive government which obviously considered me a liar and forger became too much and I ultimately put an end to it by dismissing my suit.
I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on September 3 , 1998.
NOEL E. NAPOLILLI