When Is A Gun A Gun?

A few months ago a fellow service member in my JAG unit reached out to me.  He handles criminal defense in his civilian practice and focuses primarily on federal cases.  While he is familiar with firearms, he is not a “firearms attorney” per se, but the case he was handling had firearms-related issues as the gravamen of the government’s allegations.  Specifically, it dealt with a charge that the two codefendants were “engaged in the business” of manufacturing firearms without possessing an FFL.


They weren’t.  


More specifically, and, in my opinion, more troubling… the government was completely aware they weren’t, but charged them anyway.


The case has now concluded so I can discuss my connection to it, but I am disgusted at the outcome.  I get it, I know why the defendants ultimately took a plea, but it sickens me nonetheless.  My own involvement with the case, specifically as it relates to the AUSA (Assistant U.S. Attorney) has some annoying anecdotes as well… ironically as it relates to this blog, and evidently what the U.S. government (or at the very least what this particular AUSA) thinks about my blog.  


When Jerome (my colleague) reached out to me, he was confused as to what type of activity his clients were actually doing.  After hearing what they did, I told him I did not believe they had broken any law.  I suggested that he file a demurrer in the case.  


Here is a brief breakdown of the facts:  


The defendants owned a cerakoting facility in L.A. in 2015.  Most of what they cerakoted were not firearms.  (This was new to me… in our world cerakoting is almost exclusively associated with firearms, but I learned that many products… lighters, baseball bats, car parts… are cerakoted.)  One of their employees was a “gun guy” and suggested that they also sell 80% lower receivers for cerakoting.  He explained (correctly at the time) that the “thing” they were selling was just a chunk of aluminum and totally unregulated.  A machine shop down the street had a program where the owner of the 80% could come in, “push the button” on the machine, and have it milled out to a complete lower.  Under federal law at the time, you were allowed to build your own firearms without a FFL, and it could be unserialized.   Once the weapon was made to 100%, it became, under federal law, a “firearm”… before that, it was just a chunk of metal.  


The client would then bring the now completed lower back to the defendants, and they would cerakote it.  Totally cool, and nothing illegal about it.


Then that “gun guy” employee suggested that for some clients who really did not know how to build out an AR-15, they could buy the unregulated internal parts, the completed upper, and the stock, and cerakote the whole enchilada for them.  


Again… totally cool.


Finally, he suggested they offer the service of snapping the parts together.  This was also, in my opinion, totally fine… but evidently not in the eyes of the ATF.


The ATF sent in an undercover agent (actually three undercover agents) and had the defendants build out the AR-15s.  The undercover agents tried to persuade the defendants to mill out the lower receivers for them instead of doing it themselves (entrapment?).  The defendants refused.  They told the agents they would have to do that themselves for the transaction to be legal.  The agents did, the parts were ordered, snapped together, and the defendants were promptly arrested.  


The ATF, and by extension the AUSA, claimed they were manufacturing firearms without an FFL.  




The “firearm” on an AR-15 is the lower receiver.  That is it.  Snapping the parts together does not make it a “super duper” firearm.  In fact, the government’s position really made no sense.  Either the lower was a firearm, or it wasn’t.  (There was even an argument to be made that the code was so vague and ambiguous as to what a lower receiver is, that it essentially made that aspect unenforceable.)


Regardless, Jerome asked me to join the case as a consultant.  This morphed into being named as an expert witness.  


That is the aspect I want to discuss briefly.  


An expert witness is not supposed to opine on the law.  That is the purview of the judge.  The expert witness’s testimony is supposed to be limited to his expertise.  I narrowly tailored my report to what the ATF and, by extension, the U.S. Code defined as a firearm and what was not.  


As we prepared to go to trial, the AUSA filed a motion seeking to have me excluded as a witness.  


His motion ran 25 pages and he bitched about the fact that I was first and foremost a defense lawyer and, therefore, biased.


Let’s pause at this juncture.  


His own proffered expert witness was an ATF agent, an agent of the state who has a vested interest in keeping his job as an ATF agent.  That expert is not biased????  


OF COURSE I AM BIASED, MORON!!!  That is the whole point of having an expert witness!  The one caveat to me is that I am a lawyer, and have sworn an oath that not only binds me to protecting and defending the Constitution, but unlike the prosecution witness who could only be theoretically fired, I could lose my license to practice law!  


The second, and more troubling, thing the AUSA brought up was this:  my blog.  He went through the blog… (yep… the whole thing) and said in the court pleadings that my blog showed an inherent distrust and dislike of government.  


This is how he was going to try to have me dismissed.  


Yes… I fully admit, I do have an inherent distrust and dislike of government.  We all should.  In fact, by the very nature of his argument it suggests that he, himself, does not, which I find to be incredibly troubling.  Our Constitution (which he himself also swore to uphold) is based on a foundational distrust of government.  If he, as he himself suggests, does not share this view, that might infer that he is violating his own oath… but hey… if all you have is lemons, right?  This was the best he could do, I guess, to get me disqualified.  


Fortunately, the federal judge would have none of it and dismissed the fed’s motion.  I was in…well sort of.


A couple of days later the AUSA made an offer for a sentencing guideline that the defendants did not want to pass up… so, against my advice to counsel (remember, I was just a consultant and an expert witness… not the attorney) the defendants capitulated.  I get why they did it, and if I had been their attorney I might have suggested taking the deal too.  But I wasn’t.  I was a pure academic in the matter, and it pissed me off.  


The reason I write about this has to do with a common refrain I get from clients at Artemis.  


“If I do ‘x’, will that get me prosecuted?”


“How do I avoid doing anything illegal if ‘x’ happens?”  


As the case above illustrates, it is virtually impossible for me to answer those questions.  The defendants here literally did NOTHING ILLEGAL!  The feds wanted to use them as pawns to create a theory that snapping together unregulated parts onto an already established firearm was the equivalent to manufacturing a firearm.  


Yes, the AUSA was correct… I am antagonistic towards the government.  I believe that their actions warrant that level of distrust.


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Comments (5)

  • Dave Belovsky Reply

    As always Steven, Another great read

    08/24/2022 at 08:30
  • Robert Hagler Reply

    I am also disappointed with the government for their actions in many instances, but I am not surprised anymore. There is a dark cloud looming over America as demonstrated by these very type of actions, and circumstances you are describing. Thankfully, we still have quality people with education, to fight back against the absurdities of the day. Keep up the good work Steven. You are fighting the good fight. If we all do our part, maybe things can be changed. I hope so. Honestly, I am beginning to wonder how 87,000 new IRS agents are going to work out? There is a firearms nexus there as well. But that is another story.

    08/24/2022 at 09:34
  • Ted Lavino Reply

    Thanks Steve – well said! New to your organization, but such clear and precise thinking is just what this country needs. The flip side (I believe), of the Polymer80 search that ATF conducted…

    08/24/2022 at 10:19
  • Olaf Kilthau Reply

    I hope the AUSA read this blog! I’m curious if the AUSA’s position would be different if advancement wasn’t based on convictions.

    08/24/2022 at 10:54
  • Kenny Stuart Reply

    As our government, both fed and state, deliberately enact policy, and make use of false and nonsensical assertions, which are blatantly unconstitutional to the casual observer, how can we come to any conclusion other than that they cannot be trusted?

    08/25/2022 at 10:15

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