OVERSIGHT HEARINGS ON BUREAU OF
ALCOHOL, TOBACCO AND FIREARMS
-----------------------------------------------------

HEARINGS BEFORE A SUBCOMMITTEE OF THE COMMITTEE
ON APPROPRIATIONS UNITED STATES SENATE
NINETY-SIXTH CONGRESS
FIRST SESSION

Printed for the use of the Committee on Appropriations

SPECIAL HEARING
Department of the Treasury
Nondepartmental Witnesses

U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 1979

CONTENTS

WEDNESDAY, JULY 11, 1979

Nondepartmental witnesses:
National Rifle Association................................. 1
New Hampshire gunsmith..................................... 20
Phoenix. Ariz., gun dealer................................. 32
Firearms retailer and wholesaler.......................... 185
Florida gun dealer........................................ 167

THURSDAY, JULY 12, 1979

Nondepartmental witnesses:
Jackson's. Inc., Federal firearms licensee............... 190
Citizens Committee for the Right To Bear and Keep Arms... 199
Department of the Treasury:
Bureau of Alcohol, Tobacco and Firearms.................. 357

OVERSIGHT HEARINGS ON BUREAU OF ALCOHOL, TOBACCO AND FIREARMS

WEDNESDAY, JULY 11, 1979

U.S. SENATE,
SUBCOMMITTEE ON TREASURY, POSTAL SERVICE
AND GENERAL GOVERNMENT COMMITTEE ON APPROPRIATIONS,
Washington D.C.

The subcommittee met at 10:05 a.m., in room 1318, Everett
McKinley Dirksen Office Building, Hon. Dennis DeConcini presiding.
Present: Senators DeConcini and McClure.

NONDEPARTMENTAL WITNESSES

NATIONAL RIFLE ASSOCIATION

STATEMENT OF NEAL KNOX, EXECUTIVE DIRECTOR

ACCOMPANIED BY:
JIM FEATHERSTONE, DIRECTOR, LEGAL DIVISION
MIKE ACREE, FORMER COMMISSIONER OF CUSTOMS

SUBCOMMITTEE PROCEDURE

Senator DECONCINI. The Appropriations Subcommittee on Treasury, Postal Service, and General Government will come to orderat this time.

First, I want the record to show my appreciation to Senator Lawton Chiles and the staff of the committee for their assistance in this effort. This is an informational hearing on the BATF and its involvement in the registration of arms stemming from controversy that arose last year regarding their budget, and their efforts to move in the direction that some might believe was an effort toward the registration of individual arms.

Today we will have testimony from the Director of the Bureau of Alcohol, Tobacco and Firearms and also the Assistant Secretary of the Treasury. We will also hear from individual citizens who have been involved with different problems relating to the BATF.

The National Rifle Association will testify.
Our first witness this morning will be Neal Knox, executive director of the National Rifle Association.
Mr. Knox, will you come forward.

INTRODUCTION OF ASSOCIATION

Mr. KNOX. Thank you, Mr. Chairman. I am accompanied this morning by Jim Featherstone, who is our director of the legal division, also our executive counsel. Jim is the former Deputy Assistant Secretary of the Treasury. I am also accompanied by Mr. Mike Acree. Mike is former Commissioner of Customs, has had some 40 years in law enforcement mostly with the Treasury Department and Mike has served as an investigator for us.

Senator DECONCINI. What was the second name?

Mr. KNOX. Acree; A-c-r-e-e. The purpose of their being here would be to answer any questions that the chairman might have. I appreciate very much the opportunity to testify on behalf of the National Rife Association. We are composed of some 1.2 million members nationwide, primarily engaging in the various shooting sports, hunting, and firearms collecting.

For a number of years we have sought redress for a variety of forms of persecution, often involving outright violation of the law, by the Bureau of Alcohol, Tobacco and Firearms.

We believe that when the full picture is seen by the Congress, it will become apparent that the BATF has become a rogue agency, one which has gone completely outside the limitations of statute, regulations, or lawful authority. When challenged about its behavior, the BATF's response has been to seek to improve their relations with the Congress by hiring new congressional liaison officers, which number equals the lobbyists we have.

A few of the victims of BATF abuses are here today. They will tell the basic story of their particular problems, but they are merely the tip of the iceberg.

They will indict this agency for entrapment of law-abiding citizens and the ruining of their lives through unwarranted
publicity generated by the BATF generally-but not always-accompanied by felony prosecutions. They will indict it for
devoting its energies to the persecution of law-abiding citizens, while almost completely neglecting genuine criminals.

They will indict it for engaging in a variety of illegalities ranging from physical brutality to perjury, to illegal searches. And when we remember that for every case of these witnesses them may be hundreds of other such cases-we know of many-the picture becomes dire.

Until recently, much of BATF's manpower was devoted to alcohol taxation enforcement. But with the increase in the price of sugar, moonshining has gone out of style and the BATF has concentrated its enforcement efforts upon lawful firearms uses. Rather than to go into the proper area of enforcement against criminal misuse, they have focused on arrest of the law-abiding citizen.

While we have no love for the evil way in which this agency has enforced the firearms law, we believe that any other agency assigned to enforce such a poorly written law as the Gun Control Act of 1968 would face enormous temptations to behave in much the same manner. The Federal laws are surprisingly limited in theireffect upon the criminal misuse of firearms. The few sections of the law which might be effectively used to reduce criminal violence, such as the provision prohibiting convicted felons from possessing firearms or the provisions providing stiff punishment for possession of machineguns or sawed-off shotguns, those provisions are not enforced.

Amazingly, BATF has issued instructions to its agents not to prosecute cases which are prosecutable under State laws-a policy which has resulted in violations of Federal gun laws by hardened, violent criminals being ignored by U.S. officials,
even when those criminals had received leniency from State courts.

The BATF has concentrated its enforcement efforts upon technical violations, all of which are Federal felonies, by normally law-abiding citizens, because even those cases are too infrequent to necessitate such a large agency, BATF has justified its existence by artificial inflation of arrest statistics for Federal gun law violations and crime gun seizures through entrapment schemes and other abuses. The witnesses will mention some of the various types of abuses that we have encountered.

There are basically three types.
The first type is dealing without a license. That is due to section 923(a) of the Gun Control Act not defining what does
constitute "engaging in the business without a license," which is prohibited. I tried to get the Treasury Department to define that at the time the Gun Control Act was going into effect, and I had nothing but trouble, nothing but opposition from Treasury.

They said that they needed vague wording in order to enforce the law, to have maximum discretion. As has so often happened when an agency is given discretion, it uses that discretion with indiscretion. There is no way, and there never has been any way, by which a firearms collector may know when that which he considers his hobby will be termed "dealing without a license" by the BATF, or when he may have his guns seized and face felony charges. It is a Catch-22 situation.

While an individual collector may be charged for dealing without a license, the person doing exactly the same thing may be
told he cannot have a license because he doesn't qualify. At the same time, BATF is actively discouraging the number of licensees. They have a policy, announced in 1975, of reducing the number from some 159,000 to around 30,000, according to the then Director.

The problem is that some people collect guns in the same way other people collect Ming vases, but Ming vases don't come under Federal law. When the guy who is a collector goes out he may be collecting a real fine, particular type of firearm, or he may be collecting a hodgepodge of guns, because his goal is outwitting his fellow collectors. He will try to go in like a guy swapping a pocket knife and winding up with a race horse. He will go in with a bolt-action .22 rife and hope to come out with a $5,000 Purdy shotgun. It doesn't happen very often, but he has a lot of fun trying.

This kind of collector is very easily set upon by BATF agents who can buy a gun from him, and another agent later can buy
another gun and then charge him with dealing without a license. It may be at a gun show, or swapping and trading around the city where he lives. When BATF comes in, they talk about a "cache of weapons" or an "arsenal of arms" that they seize. When that happens, this guy is discredited. The community wonders about him-"I never knew my friend Joe is running guns to the underworld," but that is what the press says.

We don't have time to talk about all of the problems we have encountered. But I hope that you will go into some of these
things, talk about what the problems are with the law, and how the law is enforced. We have today just a few types, I would like to mention one of the examples, the "straw man" sale, as it is popularly called.

In this form of entrapment, a licensed dealer refuses to sell a firearm to a BATF agent or paid operative who cannot legally make a purchase-he is usually a resident of another State. Then a second agent, with proper credentials, the straw man, makes the purchase for the nonresident. The agent then brings charges against the dealer.

Another category of abuse-and we would think this category would particularly be enforced property against terrorists-is the enforcement of title II, which is the section against cannons, full automatic weapons, and the like. Even in this exotic field the Bureau has managed to abuse its powers on a regular basis.

Shortly after the Gun Control Act went into effect a special agent-in-charge I knew in Boston tried to bring charges against the city of Boston for failure to have registered destructive devices-that is, weapons-with more than a half-inch bore: to wit, the 16-inch guns from the battleship Massachusetts, which Is a city park.

We had deactivated machineguns taken from the NRA museum. Some of those the Smithsonian said they would like to have. BATF would like to have them obviously for its own collection. We know of VFW halls and American Legion halls across the country that have had cannons and machineguns taken from them, as if these were dangerous weapons likely to be used in some kind of horrible crime.

If any other law enforcement agency were to behave as the BATF has behaved, American civil libertarians would be vociferously demanding that those agencies and the law that makes this possible be hauled before the courts and Congress and the law be changed.

But because this agency is responsible for gun laws and because many of BATF's abuses are against gun owners, many of those civil libertarians are willing to adopt an attitude of selective civil rights. I submit, Mr. Chairman, firearms owners did not give up their civil rights as of the time they bought a firearm.

I further submit that BATF has used funds made available by the Congress, after approval by this committee, to systematically abuse American citizens. I urge you to launch a full-scale investigation of the activities of BATF, to publicize the results, and call to the attention of your colleagues the sections of law which have allowed this agency to misuse the funds which Congress has authorized.

With our limited access to the internal flies of BATF, we have uncovered an institutionalized pattern of abusive behavior by the Bureau of Alcohol, Tobacco and Firearms. We have discovered a woeful lack of proper supervision, a lack of proper law enforcement, and a resultant awesome waste of the taxpayers' dollars. We have discovered outrageous destructions of the lives, livelihoods, and well-being of countless respected, law-abiding citizens. Only a fraction of our evidence can be presented during these hearings, but I urge you to fully explore the activities of this agency, and offer the help and assistance of the NRA and its membership, who have most frequently been the victims of this rogue agency, and the travesty of law under which they function.

Thank you, Mr. Chairman. I would be glad to respond to any questions.

Senator DECONCINI. Mr. Knox, thank you very much for your testimony. Your prepared statement has been received and, without objection, will appear in the record at this point.

[The statement follows:]

STATEMENT OF NEAL KNOX

Mr. Chairman, members of the Committee, I am Neal Knox, Executive Director of the National Rifle Association Institute for Legislative Action. The NRA is composed of 1.2 million members nationwide, primarily engaging in the various shooting sports, hunting and firearms collecting. For a number of years, our members have sought redress for a variety of forms of persecution -- often involving outright violation of the laws -- by the Bureau of Alcohol, Tobacco and Firearms. I must express our deep thanks to this Subcommittee for arranging to hear from a few of the many individuals who have been wronged by that Bureau.

We believe that when the full picture is seen by the Congress, it will become apparent that the Bureau of Alcohol, Tobacco and Firearms has become a "rogue' agency, one which has gone completely outside the limitations of statute, regulations, or lawful authority. When challenged about its behavior, the BATF's response has been to conceal or gloss over their gross errors, and to embark upon Public relations efforts instead of correcting fundamental problems. For example, their apparent response to NRA's statements of intention to pursue the abuse question, and the decision of this and other Committees of the Congress to investigate the matter, has prompted BATF to hire its own Congressional liaison director.

They reportedly are seeking four congressional liaison officers to work under him. We would have hoped they would have improved their procedures in response to the complaints; instead they are seeking to improve their relations with the Congress in the hope that they might forestall any real changes in their activities.

A few of the victims of its enforcement practices will present for you here an indictment of the Bureau.

They will indict it for-entrapment of law-abiding citizens, and the ruining of their lives through unwarranted publicity generated by the BATF usually -- although not always --accompanied by felony prosecutions.

They will indict it for devoting its energies to the persecution of law-abiding citizens, while almost completely neglecting genuine criminals.

They will indict it for engaging in a variety of illegalities ranging from physical brutality, to perjury, to illegal searches.

And when we remember that for each of these witnesses there may be hundreds of other cases in which the same activities have been utilized, the picture becomes dire indeed.

As a preface to a discussion of the abuses themselves, some background is essential. The Bureau of Alcohol, Tobacco and Firearms had its origin in enforcement of the alcohol taxation and later prohibition laws. Until 1969, it remained a subdivision (the Alcohol and Tobacco Tax Unit) within the Internal Revenue Service. In 1969, firearms were first mentioned in its letterhead, as it became the Alcohol, Tobacco and Firearms Division of the IRS. In mid-1972, partially in an effort to improve its law enforcement performance, it was made a full Treasury bureau under its present title.

Throughout this period the Bureau and its predecessor agencies continued to expand in size and power. Like any other governmental agency, its employees had a vested interest in increasing the size and power of the Bureau, which expanded their own power and potential for promotion.

The Bureau was faced with a significant problem, however. Until recently, much of its manpower was devoted to alcohol taxation enforcement, pursuing illegal moonshiners. Lately, the skyrocketing price of sugar has virtually driven the moonshiner out of business. The number of illegal stills raided fell from 15,000 in 1956 to less than 3,000 in 1972, and plummeted to only 361 in 1978.

Trapped between the obsolescence-of its traditional enforcement function, and the desire to expand manpower, budget, and powers, the Bureau chose the role of creating artificial criminals within the scope of its firearms enforcement function. Since undercover penetration of genuine firearm criminals – organized crime, radical groups, black market operations, and so forth -takes much time, expertise and training generally lacking within the Bureau, and a considerable amount of agent risk, the Bureau chose to ignore such an effort. Instead, it focused upon the harassment of law-abiding citizens.

In doing so, this agency, created and funded by the American people, callously chose to advance its own bureaucratic prestige at the price of ruining the lives of hundreds or thousands of law-abiding American citizens.

While we have no love for the evil way in which this agency has enforced the firearms law, we believe that any other agency assigned to enforce such a poorly written law as the Gun Control Act of 1968 would face enormous temptations to behave in much the same manner. In essence, the federal firearms laws are surprisingly limited in their effect upon the criminal misuse of firearms. The few sections of the law which might be effectively used to reduce criminal violence --such as the provisions prohibiting convicted felons from possessing firearms, or the provisions providing stiff punishment for possession of machine guns or sawed-off shotguns -- are not enforced.

Amazingly, BATF has issued instructions to its agents not to prosecute cases which are prosecutable under state laws -- a policy which has resulted in clear-cut violations of federal gun laws by hardened, violent criminals being ignored by U.S. officials, even when those criminals had received leniency from State courts.

Instead, the BATF has concentrated its enforcement efforts upon technical violations (all of which are federal felonies) by normally law-abiding citizens. Because even those cases are too infrequent to necessitate such a large agency, the BATF has justified its existence by artificial inflation of arrest statistics for "federal gun law violations' and "crime gun seizures" through entrapment schemes and other abuses.

We would here like to discuss, very briefly, three major forms of abuse which have been uncovered in a large number of Bureau cases. These major categories by no means constitute the entire list of Bureau abuses; but they are abuses which have occurred on a widespread scale and which moreover represent types of cases illustrated by the victim-witnesses which this Subcommittee will be able to hear in the limited time available. By no means can these be accounted for as aberrations by individual agents or offices; these three forms have been reported from coast to coast, and can only represent institutionalized BATF practice.

The first type involves the "dealing without a license" entrapment. This manner of entrapment is primarily aimed at firearm collectors who are not licensed as dealers in firearms. The problem is that Section 923 (a) of the Gun Control Act states that no Person shall "engage in business" as a firearms dealer without a license to do so. But there is no definition of what constitutes engaging in business.

This problem did not begin with the Gun Control Act of 1968; it also existed in the Federal Firearms Act of 1938. About 1965, when I was a newspaper reporter and freelance magazine writer, I reported upon abuses in Louisiana and elsewhere by the then-ATTU, which was threatening or filing charges against individual collectors for engaging in the firearms business without a license -- without defining what constituted firearms dealing. The same situation, based on an incident in South Carolina, resulted in the lead article in the first issue of Gun Week newspaper in October, 1966.

When I asked the ATTU for a precise definition of "engaging in business," I was referred to a court decision involving the sale of alcohol, in which the court held that a single sale was adequate evidence of being a dealer in alcoholic beverages. Of course, the situation between making a sale of a bottle of liquor and a sale of a firearm is totally different. Liquor is sold, and consumed; only in the case of relative rarities, such as individuals who collect vintage wines, is a bottle of alcohol sold more than once. However, a firearm may be purchased from a dealer, used for years, sold or traded to someone else, and again used for years before again being sold, ad infinitum.

I testified before both a House Committee and a Senate Committee concerning legislation that eventually resulted in the enactment of the Gun Control Act of 1968; in each of those statements, and in many private communications and discussions, I attempted to establish a definition of "engaging in the business" within the proposed new gun law. All such efforts were blocked by Treasury, on the grounds that they needed vague wording in order to give them the ability to enforce the law with maximum discretion; Congress complied. As so often occurs when an agency has too much discretion, it uses too little discretion.

There is no way, and there never has been any way, by which a firearms collector may know when that which he considers his hobby will be termed "dealing without a license" by BATF, or when he may have his guns seized and face those felony charges.

While an individual collector may be so charged, he is not able to obtain a license in order to safeguard himself for the simple reason that BATF actively seeks to discourage such licensing, both by counseling applicants that they do not need a license to collect and sell from their collection, and by outright harassment of persons who have obtained a license. This discouragement and harassment is undertaken pursuant to a policy the Bureau announced in 1975, of reducing the total number of licensees from 159,000 to only 30,000 since the bulk were not "bona fide" licensees.

It should be noted that at the time the Gun Control Act was under discussion, there were approximately 100,000 firearms licensees, and the principal promoters of that bill -- including the Treasury Department -- argued that a properly drafted new law would reduce the number of licensees to those who were "bona fide"- dealers. But when the Gun Control Act was passed, it contained a section which required a dealer license from all persons who distribute ammunition -a new requirement, meaningless from the law enforcement standpoint, but which greatly increased the numbers of licensees.

During debate on the 1968 Gun Control Act, Congress recognized that some people collect guns, in the same way that others collect Ming vases. While some gun collectors may have exceedingly fine collections, concentrated on a particular maker of firearms or a particular period of history, others may have a "hodgepodge" of modern and antique firearms, with no particular theme evident. With the latter type of-collector, the enjoyment of the hobby lies in buying, selling and trading, in order to outwit other collectors. The hoped-for goal of such a collector is to begin the day with a $5 bolt-action .22 rifle, and to conclude the day, after a lengthy series of complex trades, with an extremely fine, and valuable, antique firearm, or an expensive modern firearm.

Such a collector isn't likely to care what he has acquired, just so that which he has acquired is more valuable -- at least in his eyes -than what he brought to the gun show. Such a collector is extremely vulnerable to BATF persecution, for he may sell firearms to two or three agents, even at different gun shows, without realizing that he is being set up for a well-publicized raid, with all of his collection seized -- although BATF press releases will call it a "cache of weapons" or "arsenal," and often imply that he is running guns to the underworld.

The collector regards himself as a collector, not as a dealer. He has no business premises. He does not advertise his firearms for sale. He has no franchises and no arrangements with wholesalers. Although he may sell an individual firearm for a higher price than he gave in acquiring it, rarely will his total "profits" equal his costs of travel to gun shows, display tables, and related paraphernalia necessary to the conduct of his hobby. Further, it is an extreme rarity if all such "profits" do not go into upgrading his personal collection.

As far as the collector is concerned, he is selling items of his personal property purchased by him for his own collection or personal use. Such firearms are sold to federal undercover agents only because the agents approached him without his solicitation, and offered him a high price.

While BATF may secure an indictment against him for a federal felony violation, we have uncovered numerous cases where firearms were seized, but no charges were filed. If the collector sought the return of his property, BATF would tell him that federal felony charges would be brought, posing the specter of time-consuming and expensive legal proceedings which might exceed the value of the firearms seized, and the possibility of a felony conviction which would deny his possession of any firearm for the rest of his life. This practice could be called using the federal law for extortion - - but we call it stealing.

However, by this means, BATF creates a statistical criminal, adding an arrest and the confiscation of perhaps 100 firearms to their office reports. As some of you may have noted in the dialog of the "Rockford Files" which ran last Friday night on NBC television, never has any law enforcement agency been so noticeably preoccupied with statistics as BATF.

The price to the citizen is enormous, of course. Even if acquitted, he generally finds himself and his family financially ruined, paying out $5,000 or more for legal representation. In many cases, even after an acquittal, the Bureau still retains his firearms and announces its intention to destroy them or keep them for its own museum. Thus he is faced with additional legal expense -- and in many cases a delay of two to three years -- in order to secure the return of his firearms after acquittal.

In several cases and the Committee will hear the testimony of one of these the agents showed their distaste for a citizen who secured an-acquittal (or a rejection of the case by the prosecuting attorney) by deliberately damaging the firearms prior to their return. We do not believe that the Congress, in authorizing the Bureau to enforce this particular statute, intended public monies to be expended on such questionable behavior, on the harassment of law-abiding citizens and the confiscation or governmental vandalism of private property.

A second form of very popular BATF abuse consists of what we know as the "straw man" sale. This form of entrapment is specifically designed to drive a law-abiding licensed dealer out of business. It is extraordinary in that its sole utility is against a dealer who has refused to make what he believes to be an illegal transaction. In this form of entrapment, a licensed dealer refuses to sell a firearm to a BATF agent or paid operative who cannot legally make a purchase -- usually a resident of another state. Then a second agent, with proper credentials -- the "straw man" -- makes the purchase "for" the non-resident. Agents then bring charges against the dealer.

This form of entrapment originated in South Carolina in 1975, when the Bureau drove 37 licensed dealers out of business in this manner. From there, it spread to such diverse states as Virginia, Wyoming, Maryland, Florida, Colorado, and Arizona, as various local offices realized that it was an efficient way to generate a large number of spectacular arrests with comparably little work and virtually no risk. Agents who might have been expected to be out dealing with the black market or organized crime cheerfully undertook mass arrests under this doctrine, directing their efforts specifically against licensed dealers who declined to sell to non- resident, illegal would-be purchasers.

Here, also, the vindictive nature of some agents shows itself. When A. W. Phillips, a respected citizen and licensed dealer in Parksley, Virginia secured a directed verdict of acquittal (the federal judge noting that it was only the second such directed verdict he had given a defendant in 17 years on the bench) the Bureau agents revoked Phillips' firearms license based upon exactly the charges for which the judge had ruled that no case existed. They also, as in so many other cases, deliberately undertook to damage firearms confiscated from him, prior to returning them.

I should stress that this form of behavior is not common to all agents. Both BATF agents and former agents have described to me what they call BATF "Gestapo tactics." Such responsible BATF agents, who at one time seemed to have been predominant in the Agency, and still predominate in some areas, often either transfer out of the Agency, or are pushed out by a new breed of "swashbucklers" who have either never read the "Findings and Declaration" at the beginning of the Gun Control Act, or else they simply ignore both the intent of Congress and the Constitutional safeguards against police abuses.

A third major category of abuse consists of abuses in the enforcement of the Title II portion of the statute -chiefly fully automatic weapons and "destructive devices" such as bombs or large- bore cannons. One might suspect that, of all statutes, the Bureau would at least manage to enforce these provisions against radicals or organized crime. But even within this exotic field, the Bureau has managed to abuse its powers on a regular basis.

Shortly after the Gun Control Act went into effect, the head of the BATF office in Boston made headlines when he attempted to file charges against the City of Boston for not registering "destructive devices' with more than a half-inch bore: to wit, the 16-inch guns on the battleship Massachusetts, which had been made a city park. However, smaller cannons and deactivated machine guns (which the Congress recognized, but BATF refuses to) have been seized from American Legion halls and museums across the country -- including seven deactivated firearms seized by BATF from the NRA museum just last year, a case still in the courts.

In the case of David Moorhead, Title II charges were brought against a young man disabled in Vietnam, trained as a gunsmith by the Veterans Administration, and established in the firearms business with the help of a Small Business Administration loan. As an indication of Mr. Moorhead's respect for the law, he had turned in a BATF informant who had proposed an illegal transaction. The firearm which Moorhead owned, which BATF contended should have been registered as an automatic weapon, was not capable of automatic fire, for all automatic fire mechanisms had been removed, and the openings where they would have been fitted were welded shut. This made no difference to the Bureau, which nonetheless sought to imprison Mr. Moorhead for ten years. Fortunately, the federal judge in that case directed a verdict of acquittal (noting that this was the first time he had done so in his career on the bench) and apologized to Moorhead for the actions of the BATF agents.

Others victims of this type of entrapment were not so fortunate. In three cases, for example, the Bureau successfully contended that a "practice grenade" which is designed not to explode, but only to generate a small puff of smoke and a loud pop, constituted a "destructive device." The reasoning was that the casing, if filled to the brim with black powder, could be made to explode and that therefore any person who owned black powder for loading muskets and owned a practice grenade at the same time, owned "components" which could be assembled into a destructive device. Of course, the same thing could be done with an empty beer can and black powder. One of the victims of such a charge was sentenced to 16 years in a federal prison.

Such extremely broad interpretations of "destructive device' are made possible by provisions in the law which allow common components to be considered the same as an assembled device. These sections of the Gun Control Act were written in response to public concern about the use of "Molotov Cocktails" in the riots of the 1960's, and which consisted only of a bottle, gasoline, and a rag wick. Since any household contains such "components" for a destructive device, BATF can cite grounds for entering and searching any home in the United States -- or for arresting any citizen in his home or car.

There is no more classic case of BATF's using the law in such a fashion to cover improper activities than the raid upon the home of Kenyon Ballew in 1971. After raiding the wrong apartment, agents and the officers accompanying them using a daylight hours search warrant, burst into the Ballew home at 8:30 PM, unnecessarily using a battering ram to gain entry. Ballew, confronted by scruffily dressed, non-uniformed BATF agents and local officers his wife scantily clad and screaming for police grabbed a cap and ball revolver of antique design -- and was shot in the head and disabled for life.
The BATF used the excessively broad provisions of the Gun Control Act to justify the raid, contending that although Ballew did not have the hand grenades they expected to find, he did have a practice grenade which could serve as a container for the black powder used in-his cap and ball revolver. Despite the outrageous abuses involved in the Kenyon Ballew raid, the BATF agent in charge was promoted shortly thereafter.

This was the first well-publicized example of the manner in which BATF operates. Little has changed since that time, despite numerous complaints from the firearms community and equally numerous promises of reforms from the government. No amount of promises, of cosmetic "reforms," can solve these serious problems.

If any other law enforcement agency were to behave as the BATF has behaved, American civil libertarians would be vociferously demanding changes in both the agency and in the law which makes its abuses possible. But because this agency is responsible for enforcement of federal gun control laws, and because most of the BATF's abuses are against gun owners, many civil libertarians are willing to adopt an attitude of selective civil rights. I submit, Mr. Chairman, that firearms owners did not give up their civil liberties as of the moment they purchased a firearm.

I further submit, Mr. Chairman, that the BATF has used funds made available by the Congress, after the approval of this Committee, to systematically abuse American citizens. I urge you to launch a full-scale investigation of the activities of the BATF, to publicize the results, and to call to the attention of your colleagues the sections of law which have allowed this agency to misuse the funds which the Congress has authorized.

With our limited access to the internal files of BATF, we have uncovered an institutionalized pattern of abusive behavior by the Bureau of Alcohol, Tobacco and Firearms; we have discovered a woeful lack of proper supervision, a lack of proper law enforcement, and a resultant awesome waste of the taxpayers' dollars. We have discovered outrageous destructions of the lives, livelihoods and well-being of countless respected, law-abiding citizens.

Only a fraction of our evidence can be presented during these hearings, but I urge you to fully explore the activities of this Agency, and offer the help and assistance of the National Rifle Association, and its members, who have most frequently been the victims of this rogue agency -- and the travesty of law under which they function.

[end of prepared statement]

Before I get into some questions, let me reiterate my reason for these hearings. The result of these hearings, for those that don't know, came from allegations presented to me by a number of Arizona constituents, some of whom are here today, also from members of your national organization, the National Rifle Association. It is their contention that the BATF has, in certain instances. exceeded its authority in enforcing the Gun Control Act of 1968. More importantly, these individuals claim that the BATF has evolved a pattern of violation of their right as American citizens to own and bear arms.

While the purpose of this hearing is to determine whether the allegations against the BATF have merit-and BATF will be given full opportunity at the end of the witnesses that you have suggested to respond-I would like to make it clear that this Senator is deeply concerned that any agency of the Federal Government might infringe upon any of our fundamental constitutional rights.

While I recognize that there is considerable controversy in this country over the issue of gun ownership and gun control, it should not be the implicit or explicit policy of any agency of the Federal Government to determine for itself that one constitutional right is less fundamental or less important than another. I believe that the Constitution gives every American the right to own and bear arms. That right is contained in the same document that guarantees our right to freedom of expression and due process of law. Consequently, it is the duty of every Federal agency-and especially law enforcement agencies to protect these rights.

Thus, if the hearings we are conducting this morning convince this subcommittee that indeed the BATF has engaged in a pattern of violation of the rights of gun owners, I will propose legislation to rectify the situation. If, however, the allegations prove to be isolated incidents of individual agents, I hope that the new leadership of the BATF will make the appropriate commitment to this subcommittee, to the public, and to the American people to insure that future incidents do not occur.

Let me also state at this point that I have considerable respect for the BATF. It is an organization which has served this Nation in one form or another for almost 200 years. On the whole, my experience with BATF agents while I was a county prosecutor was extremely positive. Thus, it is not my intention to denigrate the excellent work they have done in the enforcement area, outside of the incidents that will be brought out and have been referred to thus far. My purpose in conducting these hearings is to explore one limited area of BATF activity that has generated the present controversy. More importantly, I am hopeful that the net result of this morning's hearing will be a resolution of the existing difficulties.

My experience with the BATF has not been in the area you mentioned, Mr. Knox, of harassment, and that is what prompted these hearings. My experience with the BATF has been working along the border of the Southwest and effectively curtailing a large number of illegal guns that flow to the Republic of Mexico, violating their laws as well as those of the United States. But I realize that any law enforcement agency, whether it is State, county, city, and certainly a Federal agency, cannot go beyond the Constitution. And I am extremely fearful that based on the evidence that has been brought to my attention, the BATF has taken such action.

I hope that the testimony this morning will be adequate for this committee and for the Senate to form some policy to restrict not only the BATF, if necessary, but other Federal agencies, from exerting their unmandated authority, of violating constitutional rights to bear arms.

With that I will ask Senator McClure, who is with me today in them hearings, if he has any comments. He has been a leader in the protection of people's constitutional rights to bear arms.

Senator MCCLURE. Thank you very much, Senator DeConcini. First, let me thank you for calling these hearings, giving the people who are concerned the opportunity to be heard and focus on what I think has been a problem, and has been a growing problem. I appreciate the tone of your statement this morning. I think it might be well at the outset to identify a couple biases of my own.

First of all, I started out in law enforcement. My first job after I got out of law school was as a county attorney. I prosecuted a good many criminals in my life and worked with a good many law enforcement officials in doing that. I suspect in having started that way I start with a bias in favor of good, strict, tough, hard-nosed law enforcement. But at the same time that I have that beginning bias, I also have a very strong commitment to perhaps the most sacred rights guaranteed to us by the Constitution, which are those that provided-indeed, assure- protection from a repressive government.

The men who drafted our Constitution knew only too well what it meant to live under such a repressive rule, and thus took great pains to see that the same did not occur again. The Preamble of the Constitution itself states, among other things, that the Constitution was necessary in order to "secure the blessings of liberty to ourselves and our posterity * * *."

Not satisfied that such liberties were adequately specified in the original document, the constitutional authors also proposed-and the several States quickly ratified-the first 10 amendments to the Constitution we know as the Bill of Rights. Included among these rights are the right to keep and bear arms-amendment II-the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures-amendment IV-the right not to be deprived of life, liberty, or property without due process of law-amendment V-and the right of not having private property taken for public use without just compensation-amendment V.

As our population has grown and our society in general changed over the past 191 years since ratification of the Constitution, it has become easy to forget such basic civil liberties. Yet, as representatives of the people, it seems to me to be one of the basic duties of government to continually remind the citizenry that these liberties do exist and should in fact be exercised. Moreover, it is the responsibility of government to vehemently defend these liberties for each and every citizen, regardless of the cost.

When this is not done, then the Government of this great Nation will itself be responsible for destroying the very foundation on which it was established. I have prefaced my opening remarks in this way because of the deep fears I hold that these rights-these sacred rights-are maliciously being breached on a nationwide basis by the governmental organization we know as the Bureau of Alcohol, Tobacco and Firearms. Given the responsibility of enforcing the Federal laws governing these three items, overwhelming information has been brought to my attention over the past several months which indicates that, rather than concentrating on finding and stopping the lawbreakers that pose a real threat to our society, the BATF has lately taken to utilizing self-made regulations, vague statutes, and a little old-fashioned entrapment in converting law- abiding citizens into criminals.

This information includes reports of innocent citizens being threatened, abused, arrested, and even wrongfully beaten by BATF agents. It includes reports of valuable gun collections being seized, purposefully damaged or destroyed, and never returned to the rightful owner, even though convictions-or even initial prosecutions-were never obtained. I might add that the information in my possession includes everything from citizen's testimony sworn under oath to BATF's own documents retrieved through the Freedom of Information Act.

Although it is not necessary to delve into particular cases at this time, it may be useful to pursue for a moment the intent of the Gun Control Act of 1968. From its very inception, Congress purposefully granted very limited authority under the act. It was not intended to impose a comprehensive national system, but rather to permit the details on who should own a firearm and under what conditions to be left to the State and local authorities. The primary purpose was to prohibit mail order sales, which was done, but which requires almost no persons for enforcement since violation is inherently obvious, as by distributing catalogs or running advertisements, and thus there is virtually no violation.

A secondary purpose was to limit interstate transfers which might used to evade local laws. But the potential for bona fide enforcement at the Federal level is almost nonexistent here. The BATF's own study-CUE-showed that most of the firearms traveling interstate were not being shipped as part of any organized criminal black market. Rather, they traveled because an individual might have bought one when he lived in Florida and 5 years later moved to New York, taking it with him. The study found that very few of the firearms which moved interstate did so by passing through any manner of illegal market.

Thus, there is little room for Federal enforcement here. The act also made it a Federal law offense for certain categories of persons- chiefly convicted felons-to purchase a firearm, but this is already illegal under the laws of every State, and the BATF has, for this reason, refused to prosecute any but the most aggravated felons in possession cases. Thus, we really have a law with very little potential for Federal enforcement.

Yet, it is my understanding that the BATF now has approximately 1,500 agents devoted to criminal firearms enforcement which leads me to wonder if the BATF, rather than rid the Nation of dangerous criminals, has a pressing need to fabricate cases in order to expand its own size. I might add that the BATF, like so many other governmental agencies, seems like a living organism-it will likely never consciously permit itself to be reduced or killed off, but will seek to grow and expand its jurisdiction.

The charges leveled at the BATF, many of which are extremely serious, have mounted to the point that Congress can no longer avoid the issue. It is of dire importance that we once and for all wade deeply into the matter and sort out the fact, and, where necessary, take swift and meaningful measures to remedy the situation. It is not likely we will get all the answers today or tomorrow, and I, for one, intend to keep digging until the whole truth is exposed for all to see.

As I mentioned earlier, we are dealing here with the most sacred of civil liberties granted-or perhaps I should say guaranteed-by our Constitution. These must, at all costs, be protected.
Thank you, Mr. Chairman.

Senator DECONCINI. Thank you, Senator McClure. I want to thank you also for the assistance of your staff in helping us prepare the witness list. We noticed in the attempts to put this together a great reluctance on the part of a number of witnesses to come and testify. I want to thank the National Rifle Association for its assistance in this matter. I am not in a position, as I was as a county prosecutor, to give anyone immunity for any statements they may make. But I can assure those who will testify today that if, in fact, they feel that any harassment is developed as a result of their testimony, that there will be at least one strong voice-and I am sure Senator McClure and others will join-in exerting whatever pressure is necessary to see the individuals who have taken time and courage to testify today on specific allegations of abuse by BATF are not harassed or bothered.
At this time we will commence with the individual witnesses. Mr. Knox, if you care to stay, we are pleased to have you there, whatever your feelings are. Do your colleagues care to make any statement at this time?

Mr. KNOX. Neither of them have a comment to make, Senator. I appreciate very much the comments of each of you. I will be in the audience, I don't see any sense in my staying at the table. I will be glad to answer any questions.

Senator DECONCINI. We may ask you questions after we listen to the witnesses.

Senator MCCLURE. I do have a couple questions I would like to ask of Mr. Acree. He has made no statement here this morning, but I know of the background and study that he conducted. Mr. Acree, have you given for the record anything of your background?

Mr. ACREE. No. Mr. Knox, in introducing me to the committee, did mention I am a retired U.S. Commissioner of Customs. After 40 years of Federal service, I retired in May of 1977, some 25 of which were as Assistant Commissioner, Division Director, as a career employee. In that sense, I was depicted as a dean of Treasury law enforcement at the time of my voluntary retirement in May of 1977.

I did enter into a contractual arrangement with the National Rifle Association in May of 1978, to make for them what they requested be an impartial, objective, unbiased analysis of a substantial number of investigative cases, both open and closed, in several Federal judicial districts, both at the district court level and U. S. magistrates' offices in those jurisdictions. I have supplied that data through the National Rifle Association.

Senator MCCLURE. Where were those studies conducted, in what States?

Mr. ACREE. In the district of Maryland, in Baltimore; in the eastern district of Virginia, located in the Alexandria, Richmond office, Norfolk offices, and in the western district of Virginia, located in Roanoke and one or two other locations in the western part of that particular State. In addition, we have also documented in investigative procedure specific cases of allegations that have been brought to the attention of the National Rifle Association. to interview people, to learn from them exactly, precisely what had happened in the circumstances that they were alleging abuse, improper handling, or having been harassed by agents at Alcohol, Tobacco and Firearms.

Senator MCCLURE. Mr. Acree, in 40 years of work with Customs, IRS, and dealing in these areas of law enforcement, I assume you have had occasion to be in contact with organized crime, purposeful criminals, innocent victim innocent persons caught up in an unwitting violation of law.

Mr. ACREE. Senator, in my career I guess I have covered the entire gamut you have mentioned, plus a few others I can think of.

Senator MCCLURE. You learned somehow in that process to get a feel for the kind of people you have dealt with: whether these people intended to violate the law, whether they are trying to get away with something, whether they knew and were purposeful in their actions, or whether they unwitting or innocent, do you not?

Mr. ACREE. Yes sir; you do.

Senator MCCLURE. In your examination of the kinds of cases prosecuted in these Maryland and Virginia areas that you refer to, what was your finding with respect to the kind of people that had become involved in the BATF prosecutions?

Mr. ACREE. Senator, I don't have my statistical data immediately available. I didn't anticipate providing with the level of specificity I would like. However, based on my recollection of the hundreds of cases that we reviewed in the jurisdictions and points I mentioned, I would say that, conservatively, 75 to 80 percent of those cases were individuals that, in my judgment, would not have fallen into the hands of the law, so to speak, had they not been enticed, inveigled, encouraged to violate some provision of law with which I am personally satisfied they were totally unfamiliar with. I found, in the main, those individuals were blue-collar workers, truck drivers, farmers, individuals that simply were not sophisticated enough to understand the technicalities of the Gun Control Act and how they may unwittingly cross the line in terms of unwittingly violating a provision of the statute, as I said, concerning which they had absolutely no idea whatsoever.

Senator MCCLURE. Mr. Acree, a very familiar problem in law enforcement is getting evidence on what law enforcement officers come to believe to be criminals or people involved in criminal activity. You know it is happening, but you don't have proof or you don't have proof that is good enough to take to court. In the search for good evidence, oftentimes you try to construct something that you can track through so that you then have evidence that you can present in court that will stand up. There is a fine line that is drawn by the courts and by appropriate good law enforcement, between creating those circumstances, conducting that surveillance and what the law calls entrapment, where you create the crime, induce the crime in order to be able to prosecute the criminal. The courts throw out entrapment cases, do they not?

Mr. ACREE. Yes; they do.

Senator MCCLURE. But there is a very close margin sometimes between what Mr. Knox has described as the so-called straw man case and the entrapment case. You indicate that the great majority of these people were people who would not normally have fallen into the clutches of the law. I think Mr. Knox used the term they were "inveigled" into actions which were technical violations of the law so they could be prosecuted. Is that the pattern you found in your investigation ?

Mr. ACREE. That was substantially the pattern I found during the caw analyses that we conducted, Senator McClure; yes.

Senator MCCLURE. I am concerned, because I have not had the opportunity in my work to work with BATF, as Senator DeConcini did in Arizona. But I have worked with a lot of law enforcement agencies-local State, and Federal-and I have had almost a high regard for 99 percent of the people with whom I worked. I was proud to be associated with them and wanted to assist them in the work that they were doing, because I believe too in what they were doing. The thing that has concerned me in what I see emerging in the area of enforcement of the 1968 Gun Control Act by the Bureau of Alcohol, Tobacco and Firearms is something I am, very frankly, not proud of.

Do you have any feeling as a long-time law enforcement official, Of what these actions are? Do they characterize good law enforcement?

Mr. ACREE. Let me preface my answer, Senator, to clarify further my role in the hearing and certainly your area of interest. I am currently vice chairman of one of the Nation's largest security service companies. We are a nationwide operation. I use as the kinds of individuals that support my activities in the company primarily Federal investigative retirees from the Federal law enforcement community-FBI, Treasury agents. et cetera. I utilized some of these people to conduct the case-by-case analysis and investigations for me in this project. I did not do personally do all of that. I did review and analyze their results.

In direct response to your question, Senator, my reaction-and let me further preface this. In discussing some of these things with some of my friends in ATF-and after having been in the Treasury agency as long as I was, I have a lot of ATF people as my friends-I do find, however, an attitude which I tend to label an oversimplistic view of these proceedings, an attitude of NRA versus BATF. I am not involved in that. I just don't believe that the role that I have played for ATF gets into any philosophical ideas as to gun control, gun ownership-they are the bad guys and we are the good guys, white hat, black hat; et cetera.

My role again has been one of total objectivity, to carefully review, case by case, document by document, the record data available in these Federal jurisdictions of which I spoke. And based on that analysis and based on the comment of any retired associates from the Federal enforcement community that worked with me on that job, again on the contractual basis for NRA, it is our total opinion that there is much wrong in an institutional way in ATF, that the pattern of activity of investigative tactic, investigative procedure, the manner in which they have gone about making their case literally smacks of a statistical rat race kind of operation. We spoke a bit ago as to entrapment I can't get into each individual case as to what that fine line was.

On the other hand, if you are faced-and ATF would obviously respond where some of these people plead guilty, they did-but they were faced with a multiple-count indictment I am talking about 36, 40, 50 counts of technical violations of the statute, so overwhelming to a man who drives a truck or pumps gas for a living, an economic situation they simply couldn't afford the kind of legal help and pay for attorneys that would take those cases to trial. In some instances we found they did go to trial and were acquitted; in other cases they did plead guilty, were given a suspended sentence.

ATF had the number, 40 weapons seized, or whatever the case. I found that to be a pattern which, frankly, was very disturbing to me. I like to picture myself a professional in the enforcement field. I don't think you will find anyone in this room or in the Federal enforcement community that would believe that I would do anything other than firmly, forcefully, but properly enforce the laws enacted by the Congress of the United States

Senator MCCLURE. Thank you very much.Thank you, Mr. Chairman.

Senator DECONCINI. Thank you very much, gentlemen. We appreciate your testimony. I do just want to ask one quick question, Mr. Knox. You make reference to the straw man sale, I think, in your opinion, one of the most abusive areas of BATF. Do you have any general numbers. not actual cases. but complaints from your members or nonmembers of how many of these you have received?

Mr. KNOX. Frankly, Senator, I don't have a number. It is something that we encounter frequently; but the actual number I don't know.

Senator DECONCINI. Is it the biggest complaint from your members or from the public that you receive regarding abuses?

Mr. KNOX. No; I wouldn't say that it is the biggest. The biggest complaint concerns "engaging in the business" definition.

Senator DECONCINI. What is the business?

Mr. KNOX. That is something that I have been involved in personally since about 1964, trying to get a definition. That is our biggest complaint. The straw man-I have talked to people, and I can't give you a specific cite, but I have talked to people who have had the charge made against them for having sold to an illegal buyer, through the straw man who, when the transfer was made by the ATF agent was not necessarily even within sight and hearing of the person. He never knew it happened. It might happen on a parking lot. This is a rare instance. I think what actually happened here, there were a few cases where it was a bona fide effort to circumvent the law for criminal purposes, and maybe a guy from New York State wanted to take some guns back to New York, couldn't make a legal buy, so he would have someone buy.

Senator DECONCINI. Of course, you have no objection to that enforcement.

Mr. KNOX. That is correct. But it works so well that BATF then said, "Gee whiz, look how many we can go out there and bust" and there they go. I have been told by people who know-and I think Jim mentioned this-that BATF had a brownie point system, if you will, that the most brownie points you could get from your boss was to talk someone into giving up his license. Where in the law does it say, "We don't want people to be licensed"? But that is the attitude they have of eliminating the dealer. Then they scream because there are no records, we don't have enough dealers. I don't understand the way they go about it.

Senator DECONCINI. Thank you, Mr. Knox. We appreciate your testimony, gentlemen.

NEW HAMPSHIRE GUNSMITH

STATEMENT OF DAVID A. MOORHEAD
ACCOMPANIED BY JANET MOORHEAD

Senator DECONCINI. Our first witness this morning is an individual named Mr. Moorhead. Let me ask the witnesses to come forward and please identify themselves, set forth whatever statement they want to be as specific as they can in relation to the problems they have had with BATF. We do have some time constraints. We do want to hear from every witness, as well as to give BATF an opportunity to respond.

Mr. Moorhead, we welcome you to the committee this morning. If you will tell us where you are from and what business you are in, and please proceed in any way you like.

Mr. MOORHEAD. I am David Allen Moorhead. I used to have a shop and stuff at the time. I was a gunsmith at the time these things happened to me. But because of what happened to me, I had to get out of the business. I could no longer stand the harassment and things to be. This was rehabilitation, because I am a totally disabled veteran from Vietnam. I started out on December 7, 1970, in the VA rehabilitation program to be a gunsmith. because the VA gave me a test and said I had the aptitude to be a gunsmith. New Hampshire is a very big hunting and fishing area and there were very few gunsmiths. It was a job I could do in my home, or have a business alongside my home so if I needed to go lie down and rest because of my condition, I could do this. What I am not saying is, while I was in Vietnam at the time of the Tet offensive, I had eight bullets go through me and was hit by a shrapnel grenade. They keep listing me as a paraplegic. But I told a full colonel I would be damned if I would stay in a wheelchair, and I walk today.

Senator DECONCINI. Good for you.

Mr. MOORHEAD. Just before I was arrested, I had an undercover agent-we call them a snitch-come in and try to buy firearms from me without Federal paperwork, which is a form you have to fill out every time a gun is sold. He said, "By the way, Dave, you don't happen to have a small, automatic handgun, or something like that that we could get, you know what I mean, with paperwork," which I kind of put him off with some answer that kind of pleased him. When he left, I reported him to the local ATF agents in Concord.

Senator DECONCINI. This was the undercover agent?

Mr. MOORHEAD. Right. Of course, I didn't know he was an undercover agent until afterward.

Senator DECONCINI. Sure.

Mr. MOORHEAD. At which time he saw my M-14 rifle which I had obtained through some good old Yankee trading. I traded a cannon for a nice weapon I learned to fire and was taught by the Army to use. It was a rifle. Anything I had ever read, the Army manual on repair, any literature I had referred to it as a rifle. I never knew it was a machinegun. I never saw it fire fully automatic in the service.

Senator DECONCINI. Was it a collector's item as far as you were concerned?

Mr. MOORHEAD. Oh, yes; definitely. It was like the guys that came home from World War 11 with .30-caliber carbines; this was what they used in the service.

Senator DECONCINI. Is this what you used in the service?

Mr. MOORHEAD. I trained on it, and I did carry it for a while, the M-14.

Senator DECONCINI. The same type of gun?

Mr. MOORHEAD. Oh, yes; definitely. So a short while later this same man came back with a buddy of his, who he said is a collector of firearms, military. I wanted to show it to him, but I couldn't because my wife had painted the floor and we couldn't get to it. On November 12 they came to my door in the morning with the local sheriff of Grafton County, who is a disabled veteran himself, and they shoved him to one side and came in through my door and said they had a warrant.

Senator DECONCINI. They broke down the door?

Mr. MOORHEAD. No; they pushed it open and pushed him to one side. He only has half a leg on one side. They pushed him right to one side. They came in and said they had a warrant for my arrest because I was secretly possessing a machinegun. It kind of confused me. I never knew I had a machinegun, and any guns I had I never knew I secretly possessed. I even used my guns to get loans from the bank.

Senator DECONCINI. Where was it? Was it on the counter or on the wall?

Mr. MOORHEAD. This particular weapon, because it was mine and stuff, and I didn't want people handling it, I would keep in my personal gun cabinet in my home, which was right next to my business. So when I saw what they wanted, I voluntarily surrendered the M-14. They continued searching after the scope of the search warrant had been executed and found a 37mm flare gun, which is exempt from law even by their own definition. I said, "Why are you taking that?"
He said, "Well, we are not sure."
I said, "What do you mean you are not sure?"
He said, "Well, there are so many laws we can't be expected to know them all."
I said, "You expect me to know them all?"
He told me ignorance of the law is no excuse.
They hauled me off to Concord in handcuffs. I said, "Why are you handcuffing me?" They said that was policy, so I wouldn't jump out of the car at 60 miles an hour. They told my wife-my wife wanted to go along because I was subject to having muscle seizures at the time. My wife made me take some Valium before I left the house. They told her if she did not stay and open the shop so they could ransack it, she would get 5 years or $5,000 fine, or both, for not staying.

Senator DECONCINI. One of the agents said that?

Mrs. MOORHEAD. The agent James Carolitus told me that.

Senator DECONCINI. Thank you.

Mr. MOORHEAD. They hauled me off to Concord. As far as I know, they did not have an indictment against me; they just arrested me. The indictment came afterward. They put me in a holding cell, and finally they gave me bail at $10,000 PR, because I had no kind of criminal record whatsoever. I abide by the law. I just don't believe in breaking the laws of our land; it is just too great to mess it up.

Then I finally got a ride home. Things progressed, and when we got into court-we found that we started into a court proceedings-the undercover agent, Tom Seno, I believe, he got on the witness stand and testified that he could see me enter the front door from inside my shop, and when we produced photographs in evidence that you could not physically do this unless you were Superman, he changed his story on the witness stand to the Federal judge and jury, and switched it around and back-paddled, and a whole bunch of other things.

Then we went on. As a final result, I had a directed verdict of acquittal by Judge Bownes, which is something he had never done in the entire time he had been sitting on a State or Federal bench. I have a copy of the last 15 minutes of the trial, where a Federal judge apologizes to me for this happening to me.

Mrs. MOORHEAD. Before he made his final statement during a bench conference he said he was upset; he was very upset; it was a travesty.

Senator DECONCINI. I would like to have that in the record if you have no objection.

Mrs. MOORHEAD. Since this, Judge Bownes is now on the First District Court of Appeals. He has been elevated Senator DECONCINI. I know the judge. I have had him testify before the Judiciary Committee.

Mrs. MOORHEAD. A lot of people think we have a big gun for a lawyer. We had a court-appointed lawyer, and it was his first case in Federal court.

Senator DECONCINI. How much did it cost?

Mr. MOORHEAD. Nothing; the court took care of it. I didn't have enough money. I was just getting started in business.

Senator DECONCINI. When you were arrested, did they read you your Miranda rights?

Mr. MOORHEAD. Yes; they did. They proceeded right in doing all that kind of stuff.

Senator DECONCINI. Were they abusive to you in language and attitude?

Mrs. MOORHEAD. Very sarcastic.

Mr. MOORHEAD. Kind of sarcastic in their talk and stuff like this-I was just a country hick and I shouldn't be doing this and that. They handcuffed my hands behind me, and I had just cut up my hand with a chainsaw. One of the agents-I believe his name was Dwyer-he says, "No, he has hurt his hand; we will put them on in front" They changed them from behind. They really clamped them on. They left a mark on my arm that took a couple of days to clear up.

Senator DECONCINI. You had no previous arrest?

Mr. MOORHEAD. No, sir; never. In fact I got a good conduct service medal after a year, 8 months in the service.

Senator DECONCINI. When you reported the first incident of the undercover agent who I understand you did not know to be a BATF agent, do you remember who you reported it to?

Mr. MOORHEAD. Yes, I called down-I don't remember the agents name-but I called to the Concord office of the Bureau of AlcohoL Tobacco and Firearms in New Hampshire.

Mrs. MOORHEAD. The local agent, Ken Drickser, wasn't there. After the trial was over, he came to the house and sat down and had a cup of coffee and started discussing how did this ever happen. He said during the initial undercover work around the State, they said there was a machinegun at Moorhead Sport Shop.

He said-this is what he told us-"If there is one in Moorhead Sport Shop, it is because he doesn't know it is one. Leave it alone and I will take care of it when I get back from vacation." He said that Dave Moorhead was the type of person who got tears in his eyes when he raised the American flag. I blame it on the arrogance of the agents out of Boston. If they had left things in the hands of the local agents who know the people

Senator DECONCINI. It wouldn't have happened.

Mrs. MOORHEAD. No. As far as we can find out, they never checked him out at all with any of the local law enforcement. In fact, the sheriff of Grafton County, Herbert Ash, said he was called that morning-he stopped the night of the arrest, he stopped at our house and talked to us-that he was called and told to be at the Toby Motor Court because there was an arrest to be made in Grafton County. It wasn't until he got there that he knew who they were arresting. He ended up going to court as Dave's chief character witness.

Senator DECONCINI. Did you ever receive any apology from BATF?

Mr. MOORHEAD. No; never from the BATF.

Senator DECONCINI. Only from the Federal judge?

Mr. MOORHEAD. Only from the Federal judge, which is in the last 15 minutes.

Senator DECONCINI. I would like to have that submitted for the record.

[The information follows:]

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

- - - - - - - - - - - - -

United States of America

vs. Criminal No. 76-4

David Allen Moorhead

- - - - - - - - - - - - -

Concord, New Hampshire

April 8, 1976

Thursday

EXCERPTS FROM JURY TRIAL

BEFORE: The Honorable Hugh H. Bownes, U. S. District Judge, and a jury.

Appearances: Robert A. Schwartz, Esq., for the United States of America.
Philip T. McLaughlin, Esq., for the defendant.

MR. MCLAUGHLIN: The defense rests, Your Honor.
THE COURT: Any rebuttal evidence, Mr. Schwartz?
MR. SCHWARTZ: Can I have five seconds, Your Honor, and I will decide it.
THE COURT: Yes.

(Whereupon, Mr. Schwartz left the courtroom and
returned.)

MR. SCHWARTZ: No further evidence, Your Honor.
THE COURT: Mr. McLaughlin, is there anything?
MR. MCLAUGHLIN: No, I haven't, Your Honor, thank you. By "anything," sir, you mean --

THE COURT: Any motions or anything you want to bring at this time?
MR. MCLAUGHLIN: Motions, yes, sir. I would appreciate it if we could approach the sidebar.
THE COURT: All right.
(Bench conference, with the Reporter presented,
THE COURT: I think this is a travesty. I am upset. I am really upset. Go ahead.
MR. MCLAUGHLIN: Your Honor, my motion at this time in behalf of the defendant would be to dismiss the count against him on the ground that at least the Federal Government has not proven beyond a reasonable doubt that Mr. Moorhead possessed a machine gun, and on the further ground that in the hands of Mr. Moorhead this was not a machine gun nor a weapon which could be readily converted to be a machine gun, and that the government has failed to prove beyond a reasonable doubt the requisites under the statute setting forth the requirements of the machine gun in order to satisfy the statutory definition of the crime.
Now, Your Honor -- off the record.
(Discussion off the record.
(End of bench conference.)
THE COURT: Well, I am going to do something that I haven't done since I have been a Federal Judge, or a State Judge, for that matter. I am going to take a case away from the jury after the evidence is all closed. And I don't do this because I don't have any confidence in you, Madam Foreman and ladies and gentlemen, but I do it because I think the circumstances require it and the law requires it.

I am dismissing the indictment, and I am dismissing it on two grounds. I am dismissing it on the grounds that I don't think there is evidence from which the jury could find beyond a reasonable doubt that this was a machine gun as defined in the statute. I am also dismissing it on the further grounds that there is no evidence from which the government has shown at all that the defendant knew or reasonably should have known that this weapon was or could be converted into a machine gun.

And I think that this was a vital element in this case as the facts have been disclosed. I think it is a vital element under the law, and I think if I were to interpret the law otherwise under the facts of this case it would be a violation of the defendant's constitutional rights. And I further think that the element of intent to possess a machine gun is a necessary element of the crime in this case in the way that the indictment has been drawn. So I am dismissing the indictment on those grounds.

And I want to say to you, Mr. Moorhead, that, on behalf of the government, I apologize. I don't think this case should have been brought. At most, we have here a technical violation. And now this man has lost his license as a result of the indictment. And, Mr. McLaughlin, I am informing you that I want you to try immediately to get his license back.

I am upset by the case. This is the first time that it has happened. And I think that, on behalf of the law enforcement officials in this case, they should have used some common sense and a little compassion and taken all the facts into consideration. Madam Forewoman, ladies and gentlemen, in a way, I a[illegible] because I have overlooked you. Believe me, I have overlooked you only because I did what I thought justice required under the circumstances. You are dismissed. Have a nice weekend. We will get in touch with you again.

(Whereupon, at 3:15 o'clock, P.M., the hearing in the aforementioned matter came to an end.) I hereby certify that the foregoing is a true and correct transcript of my stenographic notes in the aforementioned matter.

[signed]
Court Reporter

Mrs. MOORHEAD. Also, they did confiscate guns out of the storage, but they never charged him.

Senator DECONCINI. Did they return all of the weapons?

Mrs. MOORHEAD. They were taking their own good time. It wasn't until Congressman James Cleveland helped.

Senator DECONCINI. Did you go out of business as a result of this?

Mr. MOORHEAD. Yes; it ceased to be a rehabilitation at that point while I had to keep going over to the VA hospital to get nerve pills and things, because I just couldn't function. I was just totally-it was just a total daze. You couldn't believe this kind of stuff was going on. Because I couldn't function, because they had taken my license and my records and stuff like this, I couldn't pay my bills, and because I couldn't pay my bills, people were demanding money. So I finally had my business auctioned off to pay my debts, which didn't clear up everything, and I have since paid for and cleared up my debts by selling my home and business and getting this taken care of.

Senator DECONCINI. Are you in business now?

Mr. MOORHEAD. No, sir; I am not.

Senator DECONCINI. I have no further questions.

Senator MCCLURE. First of all, you are a veteran. I think you have some service decorations

Mr. MOORHEAD. Yes, sir.

Senator MCCLURE. Would you tell us what those decorations are for?

Mr. MOORHEAD. I have an expert medal in shooting the M-14, M-16-R, and M-16 machinegun. I have a national defense ribbon, which everybody gets, I have a Vietnam campaign, Vietnam service medal. I have a purple heart. I have a good conduct ribbon, and then I have a CIB-combat infantry badge.

Senator McCLURE. Mr. Chairman, this will be made a matter of record. I have a copy of that court transcript. I think there may be some value in taking just a minute to read that as well as placing it in the record.

The court said, "I think this is a travesty. I am upset. I am really upset. Go ahead." Then your attorney, Mr. McLaughlin, made a motion for dismissal, and the judge said at the end, "Well, I am going to do something that I haven't done since I have been a Federal judge, or a State judge, for that matter. I am going to take a case away from the jury after the evidence is all closed. And I don't do this because I don't have any confidence in you, Madam Foreman and ladies and gentlemen, but I do it because I think the circumstances require it and the law requires it.

"I am dismissing the indictment and I am dismissing it on two grounds. I am dismissing it on the grounds that I don't think there is evidence from which the jury could find beyond a reasonable doubt that this was a machinegun as defined in the statute. I am also dismissing it on the further grounds that there is no evidence from which the Government has shown at all that the defendant knew or should have known that this weapon was or could be converted into a machine gun. And I think that this was a vital element in this case as the facts have been disclosed. I think it is a vital element under the law, and I think if I were to interpret the law otherwise under the facts of this case it would be a violation of the defendant's constitutional lights. And I further think that the element of intent to possess a machinegun is a necessary element of the crime in this case in the way that the indictment has been drawn. So I am dismissing the indictment on those grounds.

"And I want to say to you, Mr. Moorhead, that on behalf of the Government, I apologize. I don't think this case should have been brought. At most, we have here a technical violation. And now this man has lost his license as a result of the indictment. And, Mr. McLaughlin, I am informing you that I want you to try immediately to get his license back.

"I am upset by the case. This is the first time that it has happened. And I think that, on behalf of the law enforcement officials in this case, they should have used some common-sense and a little compassion and taken all the facts into consideration." Mr. Chairman, I will make that entire portion of the transcript a part of the record.

Senator DECONCINI. Without objection.

Mr. MOORHEAD. When they raided my shop after they took me, they confiscated over 100 firearms, a lot of them .22 guns that I stored and cleaned for the winter for the Boy Scouts of America camp. I had records on these, and I kept my records. My wife did not know where they were kept in the file drawers and staff. Because I was in Concord and she couldn't find my records, they confiscated these firearms and they would not return them until a phone call. In actuality, Congressman Cleveland had to go and see Rex Davis personally and told them he wanted those firearms returned. I don't know what happened. A day after that, an Army truck pulled up and unloaded them, except for my M-14, which they are now saying was a stolen weapon and they will not return It.

Mrs. MOORHEAD. That was administratively forfeited before the trial. We didn't have $250.

Senator MCCLURE. And your license was revoked?

Mr. MOORHEAD. They had lifted it while I was under indictment and stuff like that. So when the trial was over and stuff like this, I could have gotten it again. But I was financially broke to try to trade credit. They raided me during the hunting season, and I had gotten all my stock in and I had an outlay of thousands of dollars of merchandise to pay. And I couldn't pay for it because you can't eat the stuff.

Senator MCCLURE. I might just state for the record, it is my understanding that some models of the M-14 can be fired on full automatic; some cannot. And it is my opinion of the law-and apparently BATF doesn't share that opinion-if it has been converted so it cannot fire, they still hold it as a machinegun, because it could be converted into a machinegun.

Mr. MOORHEAD. If you have a trigger assembly to a machinegun, you can be arrested for having a machinegun.

Senator MCCLURE. i have nothing further.

Senator DECONCINI. I want to thank you very much. Let me reiterate: if you are bothered by any law enforcement agency as a result of this testimony-and I know you have an astute Congressman who has helped but-this committee wants to know. Your testimony today has been very courageous. I join with the judge in apologizing to you.

Mr. MOORHEAD. Thank you. I would also like to say at the time I was arrested, I was not the only one that they took. They took in quite a few.

Senator DECONCINI. At the same time?

Mr. MOORHEAD. At the same time.

Senator DECONCINI. How many?

Mr. MOORHEAD. I think it was around 9, 14.

Senator DECONCINI. Were they gun dealers?

Mr. MOORHEAD. Dealers and collectors. And I think they had in this entire raid, I think they had two convictions, which I think, if I remember the facts correctly, both men pleaded guilty, because one was too old and had a bad heart condition, he couldn't handle a court trial. I don't remember the other one. All the rest were thrown out of court or acquitted.

Senator MCCLURE. Mr. Moorhead, do you have copies of newspaper articles concerning your arrest?

Mr. MOORHEAD. Yes.

Senator MCCLURE. I wonder if you could provide copies of that and we could place them in the record or on file.

Senator DECONCINI. We will be glad to make a copy of that and return it to you.

[The articles follow:]

ILLEGAL GUN SALES CHARGED

POLICE OFFICER AT HILLSBOROUGH AMONG ACCUSED

BOSTON (UPI)-Fourteen Persons were arrested in four New England States yesterday by Treasury Department Alcohol, Tobacco and Firearms investigators for illegally selling scores of guns to undercover agents.

Bradley Clark. 35, a Hillsborough, N.H., policeman, was arrested on a charge that he illegally sold a .45 caliber Thompson submachinegun. Twelve of the arrested were federally licensed firearms dealers.

ATF Special Agent in Charge Arthur A. Montuori said the early morning raids in Connecticut, Massachusetts, New Hampshire, and Rhode Island "are significantly the largest in New England affecting licensed dealers since passage of the Gun Control Act of 1968."

In addition to Clark, those arrested in New Hampshire included: David A. Moorehead, 28, Wentworth; Walter R. Vedock, Jr., 27, Ayer, Mass.; Howard P. Bottomly, 55, Hillsborough; David E Baxter, 48, Manchester; Donald J. Kenney, 33, Hudson; and William J. Wilbur, 42, North Concord, N.H.

The ATF spokesman said one other New Hampshire resident was to have been arrested later in the day. Also, agents were to deliver a summons to Wilbur's wife, Donna, 36. The spokesman added that agents confiscated more than 100 unrecorded guns, including a machinegun, when they audited Moorehead's shop. "Further arrests throughout New England can be expected within the next few days as a result of continuing investigation," Montuori said.

Montuori said "scores" of used rifles, shotguns, machineguns, and handguns were purchased "off the books" by ATF agents during the 10-month investigation. He said one of the weapons were reported stolen. Dealers are required under the 1968 act to record all purchases and sales of guns that go through their shops.

Off the books sales are those that go unrecorded, thus making the gun untraceable. Most of those arrested face multiple charges and penalties ranging from $5,000 and 5 years in prison to $10,000 and 10 years in prison. All were arraigned before Federal magistrates in New Haven, Conn; Concord, N.H.; Boston; and Providence, R.I.

An ATF spokesman said more than 100 other weapons were confiscated by agents who audited the books and inventories of the arrested dealers. The weapons had not been entered into the dealers' records. Barry H. Kolbert, 42, Oxford, Conn, was arraigned in U.S. District Court in New Haven. Arrested in Massachusetts were Steven H. Kamins, 35, Lynn; Audrey K. Wornham, 68, and Alfred R. Straitiff, 31, both of Townsend. Wornham and Straitiff were arrested in separate incidents. Those arrested in Rhode Island were Gabriel S. Nunes, Jr., 46, Middletown; and Paul F. Frederick, 52, East Providence. All of those except for Clark and Vedock are licensed gun dealers.

GUN DEALERS FIGHT BACK

FED RAIDERS ACCUSED OF DIRTY TRICKS IN NEW HAMPSHIRE

By JOHN HARRIGAN

Sunday News Staff

Several persons arrested in headline-grabbing "gun raids" by Federal agents this week have told the Sunday News they believe they are the victims of "trumped-up charges" as part of a campaign to reduce the number of gun dealers and win favor for gun control legislation.

Others arrested in the widely publicized dragnet say they were harassed, intimidated, ridiculed and shackled like common criminals at the time of their arrests.

"It was incredible-like something out of Nazi Germany." said one Vietnam veteran paraplegic, David Moorehead, 28, who was arrested and handcuffed in his Wentworth gun shop. Another of those arrested for allegedly selling guns under the counter told the Sunday News he finally gave in and made a sale to an undercover agent "because I had been told on two previous occasions if I didn't do it, a carload of thugs would come up from Roxbury to visit me. I refused a couple of times before, but I've got a family to think about.

Others who were arrested in New Hampshire wouldn't comment publicly, saying they feared their telephones were bugged or that their attorneys had advised against comment. But many of those contacted said they were arrested for minor violations which have in the past been overlooked by agents sympathetic with the amount of paperwork required of gun dealers.

The raids were conducted in four northeast States by Alcohol. Tobacco and Firearms agents and resulted in the arrests and the confiscation of more than 250 firearms. Agents called it the most widespread raid since the enactment of the 1968 gun laws. "You have to ask yourself why they decided to make this sweep all of a sudden," said one mystified gun dealer. "Most of these charges are dotting-the-'I's and crossing the-'T's stuff. Gerald Ford has said publicly he wants to reduce the number of dealers. Maybe this is the way they're going to do it."

The most emotional outburst came from Moorehead who close to tears, described how Alcohol, Tobacco and Firearms agents came to his shop while he was away and "tore my shop apart and intimidated my wife." Moorehead, who was wounded by nine bullets, a phosphorous grenade, and shrapnel during the 1968 Tet offensive and is totally disabled, said the Government encouraged him to go into the gun business as part of his rehabilitation and said he has always done his best to keep up with the voluminous paperwork required by the Government The charges against Moorehead: "secreting" an illegal M- 14 described by agents as "a machinegun," even though Moorehead says it had been altered to a semiautomatic, has been on open
display, and has been seen by local police and State troopers; and having 100 "unrecorded" guns on hand-guns Moorehead and his wife say they were keeping in safe storage for local camp owners who didn't want to leave them unguarded in camps over the winter.

When the agents came, said Moorehead, his wife couldn't quickly find the book in which the camp guns were listed for storage. The guns were confiscated, along with the M-14 Moorehead said agents had seen at least twice before but hadn't complained about. Moorehead's wife found the book later.

Senator McCLURE. I just have a little notation, but I think that it kind of shows a pattern. The following day the arrest was publicized under the headline of "Illegal Gun Sales Charged," and the article further noted, "An ATF spokesman added that agents confiscated more than 100 unrecorded guns, including a machinegun, when they audited the Moorhead Shop." That, I think, is a part of the pattern.

Mrs. MOOREHEAD. When you get a couple crates of .22's from a Boy Scout camp, they never charged him with anything with that.

Senator DECONCINI. Thank you very much, Mr. and Mrs. Moorhead.

PHOENIX, ARIZ., GUN DEALER STATEMENT OF J. CURTIS EARL, PHOENIX, ARIZ.

Senator DECONCINI. The next witness is Mr. Earl. Would you please give your address and your business and a little background on your particular problem.

Mr. EARL. Thank you, Senator. I am J. Curtis Earl from Phoenix, Ariz. I am a title I and title II licensed gun dealer. I might explain by that, compared to Mr. Moorhead, besides being licensed to sell title I firearms, which are standard-type firearms, I am licensed to handle and sell, possess what we call title II firearms, which are the machinegun and short-barrel rifles, et cetera, that fall into this category. Before I start, I would like to give you a belated thanks for sending your assistant to my license revocation hearing, and for the 5 seconds he spent there during our 6 1/2-hour session. I have a lot of material here, and if I get digressed, would you please throw a rock at me or something.

My background as a dealer began in 1965, when I bought my first ATF license, and it has continued up to date, although for the last 2 years I have been working under a suspended license. I no longer have a legitimate license to send to my dealers and customers. I have a twobit letter that tells me I can work as an authorization on this letter in lieu of my license, which, in effect, tells everybody I do business with I am in a bad light with ATF, and most people don't know what a letter is. They are not used to seeing it. They don't know if I am in business or not, and it is greatly damaging my business reputation-what is left. I have been under heavy Federal surveillance, apparently for years, most of it unbeknownst to me, because I have been 100 percent for BATF and 100 percent for the GCA of 1968, because I feel it may have some merit; it definitely may have some merit.

In 1977, on June 9, I was just starting to open my mail at 10 o'clock in the morning, and I noticed a number of cars drive up in front of my residence, where I do business. I might explain my business is an appointment only, mail order business from my home. I keep my inventory there-and I have an extended inventory. This particular morning I noticed six or seven cars drive up in front of my place, plus the big van. People emerged from every exit. People jumped out of the van. A guy went running across the lawn, stretching the longest telephone extension you ever saw- something like a 250 yard telephone line. Unbeknownst to me, there was an airplane circling overhead-God knows for what reason. This was ATF keeping an eye on me.

I was approached at my door by upward of 10, 15 agents, possibly local agents, and possibly media-people never introduced to me preceding the procession with a Nikon camera and a battery- operated movie camera, photographing everything. I was met at my door by Charles Wallace, who was a case agent in this raid on myself, and Dave Finney, who is a raid captain out of Los Angeles, and I was handed a search warrant. I was not read my rights. I was not arrested. And I have not had my rights read nor have I been arrested to date.

However, these agents came in and they said, "Do not make any fast moves." They said, "We know you have loaded guns in the house", which I do. He said, "We want you to walk very carefully and very quietly and do not make any fast moves and point out where you have these loaded guns," which I keep there for my protection. I did this. Each gun I pointed out to them. They unloaded them and laid the gun on the kitchen table, laid the cartridges on the kitchen table. Two or three guns I pointed out he said, "Oh, we will leave that there."

I might state, in my business I have somewhat over 800 title II items in my business. I have a 12-by-20, 6-foot vault with a safety door and time lock, which is where I keep most of my inventory. I keep a display room which has several hundred weapons, exotic and collectors items. Then, besides this I probably have upward of 1,000 title I weapons, or standard weapons, which go everything from an 1827 Harper's Ferry musket on up to the modern Weatherby rifle. I hunt with a bow and arrow. I have a considerable collection of antique muskets, front load-ers, crossbows, Indian arrowheads. I am just sort of a weapons collector don't ask me why. My folks used to ask me the same thing. Anyway, this is my forte.

In the raid they immediately said, "We want all locked doors, your vault, safe unlocked or we will blow it open." Now, blowing open my vault would have taken some time. I figured, to expedite the thing, I would open it.

Senator DECONCINI. It might have damaged your house a little bit.

Mr. EARL. Well, no, my vault is an exterior building. I have a high security safe. The safe door came from a door in Spain. So you have some sort of an idea what is in there. It is equal to a lot of the older bank wells. This raid was begun somewhat after 10:30 in the morning. I was engulfed with ATF agents, both criminal and regulatory investigative agents. My office was taken over by three people. Every room in the house had agents in them. The vaults had agents in them. There was no way to find out what they were doing or saying. I picked up a tape recorder and said, "I would like to record." They said, "No, you can't record anything. We are confiscating all of your tapes, including sealed, unopened tapes."

Senator DECONCINI. Was that in the search warrant?

Mr. EARL. The search warrant was clever in saying "Mr. Earl is known to record conversations, and all tapes will be confiscated." But unopened tapes? In my FOIA materials just recently acquired, some of the instructions to the agents were, "It is well known that Mr. Earl has listening devices and hidden microphones throughout the residence, so no conversation will be made above a low tone, and nothing of importance will be said to anyone without guarding against being recorded." I at one time tried to pick up a camera. It was taken away from me. It was a situation where it is unbelievable.

Senator DECONCINI. Did they tell you why they didn't arrest you?

Mr. EARL. No, sir; they never did.

Senator DECONCINI. Did they confiscate all your weapons?

Mr. EARL. No, sir; they only confiscated 43 items, as I recall in weapons, although they took my typewriter: it probably had a bad look.

Senator DECONCINI. It was a dangerous weapon.

Mr. EARL. I said, "There's a whole pile of stationary; type every letter; type any word you want; leave me my typewriter."
They said "No."
I said, "Why don't you take my house?"
They said, "We considered that but we finally decided since you have a residence and you live here, it would be in bad taste."

Senator DECONCINI. Who was the agent in charge?

Mr. EARL. Charles Wallace, working out of Tucson. Dave Finney, the raid captain, was from Los Angeles. My records were flown in by Agent Long from Washington, D.C. They brought in my master records to check my inventory. Let me go back a little bit and tell you, 1 year prior to this I had had a compliance inspection by one of the regulatory agents and was 100-percent correct. And then more recently, 2 months before this, I had a compliance inspection by a regulatory agent who also gave me a clean bill of health. They came and raided on another so-called saturated compliance inspection.

During this raid also I asked Mr. Finney, I said, when he started grabbing this and that, and he was bragging about how many people he had put in prison, for instance, he said, "Do you know Charles Scherer?"
I said, "Yes, I know Tony Scherer."
He said, "I was the guy who was instrumental in putting him in
prison. "Do you know Mike Seseiak?"
"Yes, I have heard of him,"
"I was the guy who was instrumental in putting him in prison."
He went on with about five or six more names of people I knew and six or seven I didn't, that he was the guy instrumental in putting these guys in prison, which implied it was a threat to me that I was going to prison.

I asked him, "Well, this sounds just like something I remember back in 1936 and 1937. We called these people Gestapo."
He smiled and said, "Mr. Earl, no; we are a little bit different than Gestapo."
I said, "Oh, how?"
He said, "Well after this we are not going to take you out and put you against the wall and shoot you."
This was the only difference that he, in his own explanation, was different from a Gestapo type raid.

Senator DECONCINI. Have you had any previous arrests?

Mr. EARL. Not anything like this at all. I am not a felon. I have never been convicted a felony. I could not have a license and be in the business if anything had been in my prior record.

Senator DECONCINI. Had you had any complaints filed by BATF requesting corrective measures or audits?

Mr. EARL. Never; not one.

Senator DECONCINI. How long have you been in this as a business?

Mr. EARL. Thirteen years, sir.

Senator DECONCINI. Have you had any contact with other law enforcement agencies in the State of Arizona?

Mr. EARL. Many. All of them.

Senator DECONCINI. Was any of that involved with any accusation or allegation of breaking the law?

Mr. EARL. None whatever. It was my cooperation with these agencies.

Senator DECONCINI. In what manner did you cooperate with the agencies?

Mr. EARL. Primarily in acting as an informant to the FBI and ATF people in turning in people who I knew were bad guys.

Senator DECONCINI. You had acted as an informant for ATF.

Mr. EARL. Many, many, many times.

Senator DECONCINI. At their request?

Mr. EARL. No, sir; because I felt it was the duty as a citizen to do so.

Senator DECONCINI. Did they, in fact use the information that you gave them on occasions that you know of?

Mr. EARL. No, sir; never, never. And on many, many blatant violations. This is something that probably should have wised me up, but it didn't. I have a very, very tiny bit of information that I brought here out of probably 40 or 50 pounds of FOIA records from the Federal Bureau of Investigation. You see it is pretty well blocked Out. But one notation in here says, and I quote, "As much as Mr. Earl is a legitimate dealer in weapons with a license from the U.S. Treasury Department to buy and sell automatic weapons, and especially in view of the fact that he is an informant for the FBI and ATF, the Phoenix Division will make no further investigation concerning the matter." The William E. Thorenson case, many years ago, and I have on many, many occasions-and I would like you to ask me to name one.

Senator DECONCINI. Please do.

Mr. EARL. Been an informant for the ATF.

Senator DECONCINI. I just asked you if you had been an informant; you said "No." Then I said-maybe you misunderstood- "if that was at their request or yours." You said it was yours.

Mr. EARL. Yes.

Senator DECONCINI. I asked if they used the information; you said "No." Is that correct?

Mr. EARL. That is correct, because most of the times I was acting as an informant it turns out I was informing on their own agents who were trying to set me up.

Senator DECONCINI. Please give us the example.

Mr. EARL. Fine, I would like to. I dated a girl about four times. She was a beautician who worked for a Ramada Inn. We went out two or three times. Some months after I stopped seeing her-and had all but forgotten her name, which I now remember it was Liz-she called me at 2 in the morning and said, "Curt, you still in the gun business? I have a great deal for you."
"Really," I said.
"that's right," she said. "I have two"
here is a girl that didn't know a gun from a push broom, and the nomenclature she used was fantastic, perfect, beautiful.
"I have two 1928 A-model Thompson submachineguns made by Colt. Both have "C" drums, the big, rare "C" drums."
They have 100-round shots. Very rare guns that sell around a thousand dollars.
She said, "They are for sale cheap."
I said, "Fine, what kind of registration do they have, because all machineguns have to be registered?"
She says, "Oh, there is no registration on them."
I said, "Well, I wouldn't take them with a thousand dollar bill attached."
She claimed "nobody knows anything. You can break them apart for parts. The drums are worth $600 apiece."

I said, "I agree, but I won't touch it with a 10-foot pole."
The parts would have been well worth more on the retail base than what she was asking. I filtered off and hung up the phone. The next morning which is Sunday morning, her son called. He went through the same story: "These are really clean items. Man, you ought to have it with a price of $600 apiece."
I said, "Fine, I have done a little thinking. I would like to look at them. Give me the details."

He said, "Fine, we will bring them down to the shop. The time agreed upon was noon.
"I will have them in the trunk of my car." I knew her car was a convertible, and she parked in a private spot in front of her shop. I said I would be there at 12 o'clock. I never even hung up the telephone and called Bill Cavanaugh-and he is sitting in the back of the room-and I called him at home.
His wife said, "Bill isn't here; he is at the Blank Canyon Shooting Range."

So I called there and had him paged. He came to the phone and I gave him the full details.
I said, "Bill, this thing is coming down. There is an illegal machinegun in the back of this car. At 12 o'clock I am supposed to go over there."
He said, "You go pick them up and we will be there and get them."
I said, Wait a minute, I am not about to touch an illegal machinegun. No way.
He says, "That's all right, we will be there."
I said, "I have no doubt about that. You go get them. Here is the license number and description of the car."
I said, "All you have to do is go down and pick them up."
He said, "But we want you to go get them. Once the trunk is opened and you have them, we will be there."
I said, "Then you will have me."
He said, "We wouldn't do that."
I said, "Give me a call; let me know what happened."

So I didn't hear from Bill and not for 2 or 3 days. Finally, I started calling the ATF office, and Bill was never available. So it was about a week later I finally got him an the phone.
He said, "Well, I did go down there, and I drove by the hotel but we didn't do anything about it."

Mr. Kavanaugh is sitting in the back of the room. You can ask him if any of my story is in error or if this happened.

Senator DECONCINI. I will ask him.

Mr. EARL. Here is a case where ATF did have an opportunity to pick up two illegal machineguns and make a good case, and it was completely passed off, in my opinion, and it is all it can be. This was strictly a setup to try to arrest me.
I have had many, many other cases. I have, for instance, acquired in FOIA material a letter from an agent, his case report of an agent who made a phone call to me and recorded it on his Sears recorder, and I would like to read, with your permission, a little paragraph.

First it says, Authorization for approved electronic surveillance was given by the Attorney General for purposes of recording a telephone conversation between [deleted] and Earl. [deleted] J. Curtis Earl Phoenix, Ariz., in an attempt to purchase title II firearms without proper registration. The conversation, according to [deleted] was that Earl would probably do business under the table. On the same day [deleted] telephoned J. Curtis Earl. During the ensuing conversation it became apparent Earl was only going to sell machineguns in a legal manner. Earl made the statement that he would not sell a thousand dollar machinegun for $10,000 unless it was done with the proper registration.

Due to the attitude of Earl it was decided that he was not in the business of transferring unregistered firearms and any further conversation on the part of [deleted] would enter into a possible entrapment situation. Due to the above story, it was requested this investigation be closed, no potential. If at some time in the additional information is uncovered showing that Earl is involved, the investigation might be reopened.
This is dated November 8, 1976.

Senator DECONCINI. Mr. Earl do you have a number of those?

Mr. EARL. Like so.

Senator DECONCINI. Would you at all be interested in submitting those to us with copies or editorial comments? I would like to have a record here as extensive as I can put together. I do have some time constraints today, and I do have three other individual witnesses. The record will stay open for 4 weeks. Mr. EARL. Let me say this. There is still litigation between myself and ATF. Some of this would be jeopardizing.

Senator DECONCINI. I wouldn't ask you to do anything to jeopardize your case. I am struck by these past incidents that you have brought to our attention. They are of extreme interest, because, obviously, the letters you are reading not only does it exonerate as to that case.

Mr. EARL. I know I am running out of time.

Senator DECONCINI. Can you assist us any further?

Mr. EARL. You bet. I will be glad to. I may have to refer to my attorney. During my raid I stated that a Mr. Long was flown in from Washington, D.C, with all of my master records to check compliance with my records and inventory that I had. Apparently, they have some kind of an idea I had a bad inventory, that I had illegal guns, or I had sold guns that I had not transferred out, et cetera. This I don't do. Every gun has a pedigree, and it is just as easy to keep that pedigree if you pay attention to it. There is no way to transfer a legal gun without your neck in a noose. It isn't worth it. I make a good living at this. It is legitimate. It is 100 percent by the law. It is written up very explicitly, to give detailed issues on it. And that is the way I do it.

Yet, I would understand, and I think you would too, that the records here in ATF in Washington would be absolutely perfect. Every gun that is transferred there is a transfer out. They should have it right perfect. One gem that I got in the total of 55 pages that was my FOIA report-and in my FOIA report I might point out that my letter was in exact compliance with the requirements for asking for all info on an individual and I go into extra detail in asking for what I should have.

My complete docket sent to me was 55 pages, about one-half of which was unreadable; the rest of it was blocked out to where you couldn't find anything in it. At the same time they sent me 55 pages, the U.S. attorney in Tucson has a stack probably a foot high. So my 55 pages was nothing but the tip of the tip. But in there they slipped by an ATF agent's report on my raid. It got in there because it is not dated, and apparently the guy who pulled the stuff was supposed to look for dates. I think it is significant that you hear some of this.

This is a description of the raid and why the raid was taking place and why it was a compliance. "On June 15, June 17, a compliance and inspection was conducted." They are only off a week in that date. "This was the only area of the premises" referring to my vault, "that had not been inventoried by the Department." Remember, Senator, I have something like 800 title II weapons and firearms, all licensed, all in the book, all in inventory, and all available to put my finger on.

It tells about the compliance check in the vault. When they first went through my display room, they started checking the guns on the wall against their paper record. "We don't have this in the record." They would pull it off the wall and put it on the floor.

After a while, they had my floor covered with guns which were supposedly not registered.
I said, "I have the paperwork. I have my copy with the Director's signature that these guns are mine. Let me get my paperwork."
They said, "No way; keep out of our way."
OK, so after the pile went from my display room into my
kitchen, I finally talked to them and said,
"Let me take and show you some of my paperwork, which is a stack like this."
They said, "Well, if you think you can."

So I got my paperwork. One by one, every gun they claimed was an illegal unregistered gun went back on the hooks.

Here is the significant part of this, No. 6, "The firearms we inventoried in the storage area were checked off of the list. As we checked the firearms, we noticed a large number of firearms, later determined to be 425, with no notations. Since the instructions were to finish the inventory to secure a complete physical inventory, we extended the inspection to verify the status of unchecked firearms. In doing so, we found some were listed more than once. This entailed approximately 4 to 6 hours additional work, going over the list to find out the duplicate and sometimes triplicate listing. We are referring to ATF