Posts Tagged ‘appeal’

Court to rule on federal sex offenders law

June 25, 2009

WASHINGTON – The Supreme Court will decide the constitutionality of a federal law that permits sex offenders to be kept behind bars after they complete their prison terms.

The justices, acting Monday, say they will consider the Obama administration’s appeal of a lower court ruling that invalidated the law.

The 4th U.S. Circuit Court of Appeals in Richmond, Va., ruled in January that Congress overstepped its authority when it enacted a law allowing for indefinite commitment of people who are considered “sexually dangerous.”

In April, Chief Justice John Roberts granted an administration request to block the release of up to 77 inmates at a federal prison in North Carolina. These were people whose prison terms for sex offenses were ending. The justice’s order was designed to allow time for the high court to consider the administration’s appeal.

The challenge to the law was brought by four men who served prison terms ranging from three to eight years for possession of child pornography or sexual abuse of a minor. Their confinement was supposed to end more than two years ago, but the government determined that there would be a risk of sexually violent conduct or child molestation if they were released.

A fifth man who also was part of the legal challenge was charged with child sex abuse, but declared incompetent to stand trial.

Civil commitment was authorized by the Adam Walsh Child Protection and Safety Act, which President George W. Bush signed in July 2006. The act, named after the son of “America’s Most Wanted” television host John Walsh, also establishes a national sex offender registry, increases punishments for some federal crimes against children and strengthens child pornography protections. Those provisions are not being challenged.

State laws allowing civil commitments of sex offenders also are unaffected.

The case will be argued in the court’s next term, which begins in October.

The case is U.S. v. Comstock, 08-1224.

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Supreme Court Won’t Hear Appeal of Former Border Patrol Agents

March 23, 2009

AP

WASHINGTON – The Supreme Court has refused to hear an appeal from two former Border Patrol agents convicted of shooting a fleeing drug smuggler and trying to cover it up.

The high court refused to consider an appeal from Ignacio Ramos and Jose Compean.

The former agents were convicted in 2006 of shooting Osvaldo Aldrete Davila near El Paso on the Texas-Mexico border. Investigators said the agents never reported the shooting and tried to cover it up by picking up several spent gun shells.

Both former agents said they thought Aldrete was armed.

Their conviction had been affirmed by the 5th U.S. Circuit Court of Appeals in New Orleans. They served two years in prison before getting their 10-year sentences commuted by President George W. Bush.

 

Gun trial witness: Feds out for ‘vengeance’

February 1, 2009
Posted: January 31, 2009
10:55 pm Eastern

 

By Bob Unruh
© 2009 WorldNetDaily

 

An expert who testified against the government in a disputed Wisconsin gun case involving what the defense has described as a “broken” gun says federal agents ever since have been retaliating and the government’s actions are costing his business hundreds of thousands of dollars.

“I am a witness in a still pending case, and I am being ‘leaned on,'” Len Savage, of Historic Arms LLC, told WND. “This is not the first time ATF has taken out vengeance during a court case.”

The dispute stems from Savage’s testimony during a Wisconsin gun dispute. There a man loaned out a gun, it fired several shots at one time at a gun range, and the federal government prosecuted him for transferring a “machine gun.”

Savage’s testimony contradicted government opinions that the gun was, in fact, a machine gun, because the type of rifle was known to have a problem with misfiring. The defendant, David Olofson, nonetheless, was convicted and his case is on appeal.

The agent whose opinion Savage had contradicted, Max Kingery, shortly after was assigned by the federal Bureau of Alcohol, Tobacco, Firearms and Explosives to review a gun part that Savage was proposing to build and sell as part of his business.

The government’s review involved Savage’s part, a conversion unit intended to allow a small number of owners of a specific type of legal machine gun to be able to shoot ammunition costing 1-2 cents per bullet rather than 25 cents.

But the agent added several pieces of metal, some chain, some wires and some duct tape to the conversion unit, allowing it to fire, and then classified the conversion unit itself as a machine gun.

“Max Kingery was assigned to evaluate the submitted product from my company. He is the one who contrived the test, and made the determination,” Savage told WND.

But he said he’s not going to let the decision go unchallenged, and he’ll contest the government’s opinion at a trial over its “arrest” of the gun part in question.

That case now has become formal, with the filing of documentation in federal court in the Northern District of Georgia and naming as a defendant “One Historic Arms Model 54RCCS ‘7.62x54R Caliber Conversion System’ machine gun, Serial No. VI.”

“Plaintiff requests that the court issue a warrant and summons for the arrest and seizure of the defendant property; that notice of this action be given to all persons known or thought to have an interest in or right against the defendant property; that the defendant property be forfeited and condemned to the United States of America…” the government’s civil filing claims.

Several WND messages left with two different offices of the federal agency over a period of two days requesting a comment were not returned.

“Don’t forget the guy who did the evaluation is the guy I testified against four months previously,” Savage said. “That’s impropriety.”

He said, in fact, if anyone made a “machine gun” in this case, it is the government, since its agents added the materials needed to make the conversion unit fire a bullet.

“I didn’t submit it with those parts,” he said.

He said he had proposed building about 350 of the units to sell to customers who already have been approved by the government to have and use the type of machine gun they would fit. But the government’s decision to add parts and define it as a machine gun stymies not only that plan, but apparently is costing him possession of the unit he submitted for examination.

Savage told WND the logic behind the addition of the parts and then the determination the conversion unit is a machine gun doesn’t follow.

“If you tie a string on both triggers of daddy’s double barreled [shotgun] then that would be a machine gun too,” he said, citing the government’s definition of anything that causes multiple shots with a single trigger action.

He said the government did, in fact, make just that determination, but eventually backed away partly.

In 1996, the Firearms Technology Branch of the federal agency determined that “a 14-inch long shoestring with a loop at each end” when attached to a rifle “caused the weapon to fire repeatedly until finger pressure was released from the string.”

“Because this item was designed and intended to convert a semiautomatic rifle into a machine gun, FTB determined that it was a machine gun…,” the agency confirmed in a 2004 letter.

However, in 2007, it followed, “Upon further review, we have determined that the string by itself is not a machine gun, whether or not there are loops tied on the ends. However, when the string is added to a semiautomatic firearm … the result is a firearm that fires automatically and consequently would be classified as a machine gun.”

Savage said such logic should apply in his case, because his conversion unit – without the addition of the extra materials added by the government – doesn’t fire.

He said the government is in the processing of “arresting” the conversion unit, and then a trial will be scheduled for a determination. The government wants ownership of the unit as well as its costs in the case.

Savage wants a determination that his unit is a repair part or conversion unit.

And he said if the government wins its argument, there will be further complications, since the agency has made conflicting determinations in the past.

Specifically, he said, the AFT has ruled that for MAC type machine guns, the upper portion “that contains the bolt, recoil system and barrel … to be a ‘gun part,’ not even a firearm.”

“All of these without exception would fail the ATF’s contrived test,” he said. “If I took the tape and zip tie route that ATF demonstrated in detail and put that on the stock unit, I have a zip gun, just as illegal.”

“This ‘test’ will turn any upper that has a feed device into not only a firearm, but a machine gun,” he said.

Savage’s testimony in the Olofson case, in Berlin, Wis., harshly criticized the government’s weapons testing procedures. In that case, the defendant was convicted and sentenced to 30 months in jail for loaning a rifle that misfired, letting off three bullets at one time.

The government then classified it a machine gun, and convicted Olofson of “transferring” such a weapon. He surrendered to federal authorities and is serving his term, prompting the Gun Owners of America to issue a warning about the owner’s liability should any semi-automatic weapon ever misfire.

“A gun that malfunctions is not a machine gun,” Larry Pratt, executive director of GOA, said at the time. “What the [federal Bureau of Alcohol, Tobacco, Firearms and Explosives] has done in the Olofson case has set a precedent that could make any of the millions of Americans that own semi-automatic firearms suddenly the owner [of] an unregistered machine gun at the moment the gun malfunctions.”

When U.S. District Judge Charles Clevert imposed the sentence, a commentary in Guns Magazine said, “It didn’t matter the rifle in question had not been intentionally modified for select fire, or that it did not have an M16 bolt carrier … that it did not show any signs of machining or drilling, or that that model had even been recalled a few years back,” said

“It didn’t matter the government had repeatedly failed to replicate automatic fire until they replaced the ammunition with a softer primer type. It didn’t even matter that the prosecution admitted it was not important to prove the gun would do it again if the test were conducted today,” the magazine said. “What mattered was the government’s position that none of the above was relevant because ‘[T]here’s no indication it makes any difference under the statute. If you pull the trigger once and it fires more than one round, no matter what the cause it’s a machine gun.’

“No matter what the cause.”

Savage had told the agency in an earlier letter the decision to install the additional parts on his conversion unit “in order to induce full auto fire [is] clear and reliable evidence that they were contrived to deny my constitutional rights.”

He said during an interview with Jews for the Preservation of Firearms Ownership that Olofson had been instructing a man in the use of guns, and the student asked to borrow a rifle for some shooting practice.

“Mr. Olofson was nice enough to accommodate him,” Savage said. So the student, Robert Kiernicki, went to a range and fired about 120 rounds. “He went to put in another magazine and the rifle shot three times, then jammed.”

He said the rifle, which was subject to a manufacturer’s recall because of mechanical problems at one point, malfunctioned because of the way it was made.

Savage said once the government confiscated the gun, things got worse.

“They examined and test fired the rifle; then declared it to be ‘just a rifle,'” Savage said. But when agents demanded another test, a different ammunition was used and the result was a machine gun classification.

David Codrea, in the Gun Rights Examiner, wrote, “Given enough added parts that are not part of the submitted design, I know a lot of people who could turn a banana into machine gun.”

“Why are they doing this, especially since many other caliber conversion uppers exist that are not so classified? Will this area be revisited? Or is this payback for Savage testifying on behalf of David Olofson and in other cases?”