Friesen Volume7

1 2 3 4 5
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA
UNITED STATES OF AMERICA, Plaintiff,
6 7
vs. LARRY DOUGLAS FRIESEN,
8 9 10 11 12 13 14 15 16 17 Defendant.
) ) ) ) ) ) ) ) ) ) )
Case No. CR-08-41-L
TRANSCRIPT OF JURY TRIAL VOLUME VII HAD ON SEPTEMBER 29, 2008 BEFORE THE HONORABLE TIM LEONARD, U.S. DISTRICT JUDGE, PRESIDING
A P P E A R A N C E S 18 19 20 21 22 23 24 25 B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603 Mr. Edward Kumiega, U.S. Attorney's Office, 210 West Park Avenue, Suite 400, Oklahoma City, OK 73102, appearing for the United States of America Mr. Mack Martin and Ms. Kendall Sykes, Martin Law Office, 125 Park Avenue, Fifth Floor, Oklahoma City, OK 73102, appearing on behalf of the defendant
1241 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603 DELBERT KNOPP Direct Examination .......................1503 Cross-Examination ........................1505 TIM KELLEY Direct Examination .......................1496 Cross-Examination ........................1500 ZELLA HOLDER Direct Examination .......................1441 Cross-Examination ........................1450 Cross-Examination ........................1479 Redirect Examination .....................1493 Recross-Examination .....................1494 WITNESS I N D E X PAGE
LENNIS SAVAGE (Daubert) Continued Direct Examination .............1243 Cross-Examination ........................1246 LENNIS SAVAGE Direct Examination .......................1301 Cross-Examination ........................1333 Redirect Examination .....................1399 Recross-Examination .....................1407 JAMES FOSTER Direct Examination .......................1417 Cross-Examination ........................1423 Redirect Examination .....................1441
1242 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 (The following was had on September 29th, 2008. For prior
transcription, see Volumes I through VI of this transcript.) THE COURT: Case number CR-2008-41, United States Counsel ready to proceed on
versus Larry Douglas Friesen. their Daubert hearing? MR. KUMIEGA:
Yes, your Honor.
Good morning.
Ed
Kumiega with the United States, and we're ready to proceed. MR. MARTIN: THE COURT: Defendant is ready, your Honor. Mr. Martin, I think you had concluded your
witness's testimony earlier, but I know since then he's done some additional testings, I assume, over the weekend; is that correct? MR. MARTIN: He was able to do further examination
last night, your Honor. THE COURT: the stand and -MR. MARTIN: THE COURT: examination? MR. MARTIN: MR. KUMIEGA: forensics is here. Sure. Your Honor, Mr. Howard Kong from ATF I can very briefly. -- have him testify about that Okay. So do you want to put him back on
I would like to have him sit in here since
he's a rebuttal witness. THE COURT: MR. KUMIEGA: Sure. He's also, your --
B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
1243 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. MARTIN: Q. Mr. Savage, after you testified last week, you flew back Did Kumiega. THE COURT: You're going to need to speak up, Mr.
I have picked up something over the weekend, so I
would encourage you not to have bench conferences, and I can't hear. I'm all plugged up here. MR. KUMIEGA: As I was saying, your Honor, Mr. Kong is
going to be a rebuttal witness; I would like to have him sit in the courtroom. Also he completed a report, made an analysis of
the two tubes that were brought into court on Friday by Mr. Savage, and as soon as Mr. Savage takes the stand I'll give a copy of that report to Mr. Mack Martin. THE COURT: All right.
Mr. Savage, you're under the same oath that you gave when you began your testimony Wednesday, I guess it was. THE WITNESS: Yes, your Honor.
CONTINUED DIRECT EXAMINATION
home and then came back in last night about eight o'clock. you perform further examination of the Government's Exhibit 3.16 last night? A. Q. Yes, I did. And based upon your examination last night, you took
several photographs; did you not? A. Yes, I did. MR. MARTIN: And, your Honor, for the record, I
Savage - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
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previously provided Mr. Kumiega, I don't remember the number, but several additional photographs from last night. Q. (By Mr. Martin) What did your further examination
establish, if you wouldn't mind? A. There was no markings inside of the trigger housing on
the tube, and it also established that those were indeed socket-head cap screws, number 10 in size. Q. that? A. Well, they are different from rivets. It's a threaded And socket-head cap screws, what is significant about
screw. Q. As a matter of fact, that's a distinction relating to a
Sten III, is it not, sir? A. Q. Yes. I'm showing you what's been marked for identification Can you tell me what
purposes as Defendant's Exhibit 112, sir. 112 is? MR. KUMIEGA: is going to object.
Your Honor, to which the United States Mr. Mack Martin did have the courtesy to He told me it was going to be
show me that three minutes ago.
used for demonstrative purposes for closing argument, now I understand it's going to be evidence in the case, and I've never seen this before until two minutes ago. THE COURT: Well, I'm not going to admit it, but I'll I don't even know what it is, so --
hear some testimony on it.
Savage - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. (By Mr. Martin) What is Defendant's Exhibit 112?
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It's the front end of a Sten Mark III. And you heard the testimony of the witnesses about, in
particular, I believe, the government's expert witness, Mr. Kong, about this particular firearm, Government's Exhibit 3.16 looking like or being characterized as a Sten III. correct, sir? A. Q. That is correct. And I'm going to hand you Government's Exhibit 3.16 and Is that
ask you if there's any characteristics unique or distinctions between those two barrel lengths. A. If you put them side by side you can see two differences This tube right here does not have a seam
right off the bat.
running across the top of it like the Mark III does. Q. A. Right. And it uses rivets in the Mark III, and where this tube
is assembled with socket-head cap screws. Q. And are two -- I take it one is a tube and one is a flat
piece of metal; is that right? A. Well, this one was formed by a flat piece of metal that
was wrapped around a mandrel and welded across the top, where this is made from a piece of seamless mechanical tubing. Q. Okay, sir. And what other distinctions or
characteristics did you find on your examination yesterday, last night? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Direct/Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. KUMIEGA: Q. A.
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That the firearm's condition seems to degrade every time This has bent up even more and is now starting
I examine it. to crack. Q. A. Q. A.
Would you say what is this is for the record? The shell deflector. Okay. And the retaining cap for the main spring housing is now
missing an ear on one side and was freshly broken. Q. Okay, sir. Other than that, anything about your
examination this weekend change any of the conclusion you testified about last Friday? A. No, sir. MR. MARTIN: THE COURT: MR. KUMIEGA: Nothing further, your Honor. Mr. Kumiega. Judge, I apologize. I'm looking for the
first report that Mr. Savage -- here. CROSS-EXAMINATION
You know, Mr. Savage, it's my understanding you proffered
-- you're going to proffer yourself today to the Court as an expert; is that correct? A. Q. Yes, sir. All right. And before I explore in particular your
expertise, what areas of the firearm are you going to testify about, please? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. Pardon me?
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What areas of the firearm are you going to testify about? About its design characteristics. Okay. Let's go one by one. So I just want to know how
extensive or how broad your universe of expertise extends to. Okay? A. My expertise extends to firearms manufacture and firearms
design, sir. Q. A. Q. Okay. Yes. Okay. Now, according to your report, the first report Manufacture and design?
that you floated, you are also going to testify to your expertise in paint; is that correct? A. Q. A. Q. A. My experience with paint as a -Excuse me. Your expertise in paint; is that yes or no?
Does my report say expertise in paint? Yes, it does. It says I have experience with painting as a
manufacturer, sir. Q. Okay. So you're going to testify to your expertise in
paint as a manufacturer? A. Q. A. I didn't say that. You're putting words into my mouth.
Tell the Court, you said here -As a manufacturer, I use paint and coatings daily when I
work on firearms. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. Okay. I have personal experience with paint and coatings. Okay. Paint and coatings. Okay.
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You also talked about,
in your same report, about the presence of welded magazine housings and rivets; is that correct? A. Q. That is correct. All right. And what expertise do you have in welding and
magazine rivets, please? A. Q. A. Q. A. Magazine rivets? Or rivets or magazine welds for making firearms, please? Well, as a manufacturer, I weld metal. Okay. And as a manufacturer, I use rivets as well as
socket-head cap screws. Q. Okay. And the next part of your expertise goes into the
area of polishing and abrasives; is that correct? A. I have lots of experience in polishing and abrasives as a
firearms manufacturer. Q. Okay. And would it be fair to say in your first report,
that's what your first report refers to, expertise in paint, welds, metal, welds, and rivets, and polish and abrasives; is that correct? A. It addresses those issues from personal experience. I
don't believe I use the word "expertise." Q. Then let me ask you this: If you're not an expert in
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 this, what are you doing here? A. Q. A. I'm a manufacturer of firearms and I know -Okay.
1249
-- the physical characteristics of what you're talking
about because I use it every day. Q. guns? A. Q. A. Q. Yes, I do. Okay. No. And did you pass a test to manufacture guns? Let me ask you this: You have a license to manufacture
There's no test. I can even get a manufacturer's license to make
Right.
guns; is that correct? A. Q. A. Q. A. Q. If you qualify. No. I go to ATF and I can get a license to do that?
If you -Yes or no? If you qualify -Yes or no? THE COURT: Mr. Kumiega, let him answer. There are some restrictions. You have
THE WITNESS:
to go through a background test and everything.
Could he if he
could go through and pass the qualifications; yes, he could. Q. (By Mr. Kumiega) Right. There are no qualifications.
You just pay the tax and you get the stamp to make guns; is that correct? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. A. Yes, sir. Okay. If you want to eat, though, you've got to be able to
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produce something people want. Q. If I want to make a gun I can just go pay the tax and
manufacture a machine gun, is that right, or manufacture guns; is that correct? A. Q. A. If -Yes or no? The license doesn't give you the ability. If you know
how to manufacture a gun and you have a license, yes, you can lawfully do that with a license. Q. -THE COURT: Let's move on, Mr. Kumiega. Now, in your second report that you That's not the point, Mr. Savage. Any Joe off the street
(By Mr. Kumiega)
floated, this is the day of your, the first examination, what is the purpose of your second report? What is this, in your
expertise, what does it show to the Court? A. Shows my observations and measurements based on my
examination. Q. A. All right. And what were the findings, please?
My findings are -- show me that that is an Erb II that
was incomplete, and then completed by a second person, and it looks to be a Mark II-S tube that Mr. Erb discussed during his B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 testimony. Q. A. Okay. What else did your report say?
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It says quite a bit.
My report says that -- talks about
dimensions and the halos or rings that were found around the socket-head cap screws, and goes through my observations. Q. All right. So what are your findings in your second
report, please? A. That is a -- my findings are --is that that is an Erb II
that was completed by a second person at a later date. Q. All right. Let me do this now: What is your background,
sir, to make you qualified to manufacture firearms? A. I have actually manufactured and designed firearms. I
design firearms for other larger manufacturers for money so I can eat. I also have had the background in manufacturing and
manufacturing machines. Q. Okay. Now, let me ask you this: Do you have any formal
education in this area? A. No. There is no firearms design university in this You would have to go outside the confines of the
country.
United States. Q. A. Q. A. Q. Okay. Have you gone to gunsmithing school?
I have studied under gunsmiths. Have you gone to gunsmithing school? No, I haven't. Have you received a certificate from any gunsmithing B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 school? A. Q. A. No, I have not. All right. Let's see. Who have you studied under, please? That would be The Cop Shop in Monroe,
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Michigan for a while. Q. A. Q. A. Q. For how long, please? A couple of years. Were you there full-time? No. Can you tell the Court about The Cop Shop, when you were
out there and what you learned, please? A. Q. A. Q. A. Q. A. Q. A. Refinishing and repair of firearms. So it's somewhat like a gunsmithing school? No, it's a retail establishment. Okay. It's a store?
Of course. All right. So what did you learn there, please?
Firearms repair and refinishing. I thought it was a store. It's not a gunsmithing shop?
In order to learn the craft, like any other craft, you
work along somebody who has more knowledge than you and you learn the techniques and you gain your experience. another company -Q. From -- let's finish with The Cop Shop. How long were There's
you up there and the dates and times, please? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. I don't remember. Okay. It was near 15 years ago.
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Fifteen years ago.
And how many times did you
visit up there, sir? A. Q. I -- I have no way of giving you that information. Okay. So you were there maybe on an occasion; is that
what you're telling the Court? A. Q. A. Q. Two to three times a week. For how long, please? As I said, a year or two. For a year or two you would fly from Georgia up there two Yeah.
or three times a week? A. Q. No, sir. No, sir.
Can you give us a straight answer and tell the Court
about The Cop Shop? A. I take exception to that. How dare you. THE COURT: Mr. Kumiega, Mr. Savage, let's just ask a I've given you straight
answers.
question, and let him have time to answer it, Mr. Kumiega, and then ask the next one. forth. THE WITNESS: I was born in Monroe, Michigan. Around Let's don't get in a battle back and
1993, '94, I moved to Mississippi.
From Mississippi, I moved
to Georgia right around 1999, I believe. Q. (By Mr. Kumiega) Okay. When did you go, again, to The
Cop Shop, how many times? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. I believe I answered you. MR. KUMIEGA: answer the question? THE COURT: Answer the question, Mr. Savage.
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Your Honor, can you ask the witness to
THE WITNESS:
To the best of my ability, I believe it
was three or four times a week, as I stated before, and I don't recall. Q. I didn't track the dates. Three or four times a week for what
(By Mr. Kumiega)
period of time? A. Q. A. Q. A. A year and a half to two years. Were you employed by them? When you say was I employed -Were you employed by The Cop Shop? No. I was working under their gunsmithing learning my
experience there. Q. Okay. Were they a business that could confer a
gunsmithing degree or some type of certificate? A. Q. A. Q. No, they were not. Okay. And you did this for two or three years?
Approximately two years, as I said before. Oh, two years. Okay. And what were you doing for a
living at that point, please? A. Q. A. Working as a journeyman machine builder. Okay. For who?
I believe it was Cisco, Incorporated. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. A. Is this a food corporation? No, it's not. What is it, please. They make coil conversion systems, die feeders, die They make the machines that make cars.
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stackers. Q. Okay.
So while you were employed making, I guess, stuff
for cars, you had a sideline of going to The Cop Shop; is that correct? A. Q. That is correct. Okay. So you would not spend eight hours a day, you
would just go there every once in a while; is that correct? A. Q. A. Q. That is correct. And what years, Mr. Savage, were you there, please? I don't recall. It's kind of important to show your background. Do you
have a resume? A. Q. A. Q. A. Q. Yes, I do. Is The Cop Shop in your resume? No, it's not. Okay. Do you remember, again, what years you were there?
I don't recall. Okay. What's the next significant thing you learned in
your process of being a designer of firearms, please? A. I worked at a place called The Lock Shop in Columbus,
Mississippi. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. A. Q. A. Q. A. Q. A. The Lock Shop? The Lock Shop. And what is that, please? It was a firearms store. All right. And what did you do for them?
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Locksmithing and gun repair. You fixed guns? Yes, I did. And who taught you to do that? I -- based on my experience I had learned since the 8th
grade on, and I was able -- I knew how to reparkerize and repair firearms, and continued on at that point. Q. Did you have the assistance of a master gunsmith person
as mentor to help you? A. Q. work? A. Q. The guns worked when I was through. How do you know the accuracy of the work, other than the No, I did not. All right. So how do you know, sir, the accuracy of your
fact a bullet can come out of a barrel? A. Q. Because the guns functioned when I was through. All right. And that gives you some type of expertise in
the case today? A. Q. Yes, it does. All right. After The Lock Shop -- how long were you
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Kumiega. MR. KUMIEGA: there, please? A. Q. A. Q. Approximately two, two and a half years. Excuse me? Approximately two to two and a half years. Okay.
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And can you tell me what years you were there,
please? A. Q. A. Q. A. Q. Would have been 1995 through maybe '97. Okay. Approximately. And did you leave on good terms with that owner? They closed. They closed? THE COURT: Mr. Kumiega, we've only got 15 minutes
left, so we need to move on. Q. have. (By Mr. Kumiega) Let me ask you about certain biases you
Mr. Savage, you have been interviewed several times by
different organizations that have a bias towards the ATF; is that correct? MR. MARTIN: Your Honor, I don't know how that would
go to his qualifications as an expert in this case. THE COURT: Let's stick with qualifications, Mr.
Can I not explore his bias to show that
he has an agenda, he's not here testifying as an expert, he's testifying as an agenda person? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. THE COURT: Let's do it very quickly.
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(By Mr. Kumiega)
Have you been interviewed by people who
have a bias towards the ATF? A. Q. I wouldn't know if they have a bias. Have you been part of some documentary showing how the
Bureau of Alcohol, Tobacco, & Firearms has been destroying the rights of civilians here in the United States? A. Q. A. Q. A. Q. A. I did take part in two documentaries. Can you tell the Court about those, please? One was called BATF Fails the Test. Yes. And when was that made, please?
Approximately 2003, 2004. Okay. And the purpose of that documentary, please?
Was to show the lack of a testing method by Firearms
Technology Branch. Q. A. Okay. And how did you participate in that film, please?
I was a technical adviser on a case, United States v.
Glover. Q. A. I asked you how you participated in the film, please. I was a technical adviser in U.S. v. Glover. The film
wasn't made as a documentary, it was a video that was taken during a field test at the Carabus County Sheriff's Department during a field-test of firearm that was purportedly a machine gun. Q. It turned out to be a malfunctioning firearm. And you made a documentary showing -B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. A. Q. A. No, I did not. Okay.
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Did you make another documentary called The Gang?
I never made a documentary, sir. Were you participated or interviewed for a documentary? Yes, I was. All right. Tell us about your other documentary, please. You keep referring to it as mine.
My other documentary.
I don't understand. THE COURT:
What would you like to know about it? Mr. Kumiega, he never made the
documentary, I understand he participated in it, so just ask about his participation. Q. (By Mr. Kumiega) It's not his documentary.
Did you participate in a documentary,
please? A. Q. Yes, I did. And the name the documentary was The Gang; is that
correct? A. Q. A. Q. A. That is correct? What participation did you have in that? I was interviewed. And what did you say in your interviewed? That right after a federal trial that I was present at
that the ATF reconsidered one of my lawful products to be a machine gun retroactively, after the fact. Q. All right. And what was -- and the purpose of the
documentary then, please? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A.
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Was to raise awareness of the lack of a firearm testing To date, they don't
procedure at Firearms Technology Branch.
have a written testing procedure when they test firearms. Q. Now, you have asked a congressman in Georgia to sponsor
some type of testing regime, is that correct, a protocol that you asked for ATF to test? MR. MARTIN: Your Honor, I don't know what this has to
do with his expertise. THE COURT: Be overruled. You have contacted a congressman in
(By Mr. Kumiega)
Georgia to sponsor a bill about testing procedures for ATF; is that correct? A. Q. A. That is correct. And what procedures would you like to see ATF do? I would like them to videotape all tests and
examinations, just like you did me on the sly the other night. Q. Right. And by the way, in your reports and testing did
you videotape yourself? A. Q. A. Q. A. Q. Did I? No, I did not.
Why not? Because you don't. Excuse me? The ATF doesn't test theirs, or doesn't videotape theirs. Okay. Now, looking at your resume, sir, there is no
mention of The Cop Shop in your resume; is that correct? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. Yes, sir. There is? THE COURT: He said that's correct. I thought he said yes, sir.
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MR. KUMIEGA: THE COURT: he said yes, sir. Q. (By Mr. Kumiega)
He did.
You asked if it was correct and
The Lock Shop -- excuse me -- The Cop
Shop is not mentioned in your resume; is that right? A. Q. Correct. Okay. And The Lock Shop is not mentioned in your resume;
is that correct? A. Q. That's correct. All right. What is the next area of expertise you've
learned as you got into manufacturing guns? A. The next one would probably be the design of the Bren
Mark II semi-automatic rifle. Q. A. Q. All right. Yes, I did. And you did this based on your expertise or your learning And did you design that firearm?
ability at The Cop Shop and The Lock Shop; is that correct? A. And other places, and going to manufacturers and going to
people who have machine gun collections. Q. Okay. What manufactures have you gone to, or schools,
please? A. Pardon me? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. A. Q. Have you gone to any manufacturing schools? No, I have not. You haven't gone to my armorer's schools? No, sir.
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You haven't gone to any gunsmithing schools, as you said,
with manufacturers; is that correct? A. Q. No, sir. I've taken no maintenance courses. Now, the barrels that you presented for the
All right.
Court the other day, can you read those exhibit numbers into the record, please? A. Q. A. Q. Those aren't barrels. The tubes. Exhibit 110 and Exhibit 111. All right. And you were trying to do what with those
tubes, please? A. I was trying to establish if the tube on the Exhibit 3.16
was stamped as you guys allege it was. Q. All right. And obviously, you have to compare the tube
that's in the machine gun in Exhibit 3.16 with the hardness with your defense exhibits; is that correct? somewhat similar; is that correct? A. I based it off what Mr. Erb had said. He said he used They have to be
seamless mechanical tubing, so that's what I got, seamless mechanical tubing. Q. Do you understand that the government's contention is B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 this is not an Erb machine gun? A. Q. You understand that?
1263
I understand that, but you're incorrect. All right. Let me ask you this: Did you compare, did
you make an actual comparison between the firearm Government's Exhibit 3.16 and your tubes? A. Q. I was not able to. So you do not know, sir, I mean, because you're really
mixing apples and oranges because you have no idea what the hardness of the machine gun in front of you is compared to the tubes that you brought -A. Q. A. Q. Seamless -Let me finish. No, that's not. Well, can you explain to the Court how you did the right -- brought to Court today; is that true?
protocols to make some type of expert opinion on your work? A. Seamless mechanical tubing otherwise noted would be mild So I went and asked for seamless mechanical tubing, had
steel.
the ID spun down to size so it was comparable, and then did my test. Q. The point is, you don't know if Government's Exhibit 3.16
is seamless mechanical tubing; is that correct? A. Q. A. There's no seam inside. How do you know that? Because I could -- I took a picture, I looked, I There would be a seam inside. Yes, I do know it's seamless.
observed, I examined.
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. All right.
1264
And you're saying those tubes are the same
hardness of the Government's Exhibit 3.16? A. Q. A. Q. that? A. You guys aren't going to let me take that, you wouldn't How in the They should be the same approximate hardness. All right. I did not have a Rockwell C scale machine to test it. Okay. And wouldn't that have been appropriate then to do
let me take it out of your interrogation chamber.
world could I get it to a Rockwell C scale machine. Q. A. Q. Sir, you never asked. Yes, sir. Okay. Is that right, you never asked?
I never asked.
And when you -- the purpose of the test then was
to make sure that the serial number on Government's Exhibit 3.16 was comparable to the serial numbers that you placed on your defense exhibits; is that correct? A. Q. A. No, that's not correct. Okay. The purpose of the test was to see whether or not
seamless mechanical tubing, when struck with a die, would dent or crush. Q. A. Q. A. All right. It does. All right. And what force did you use, please? And your conclusion, please?
I hammer-blow to stamp in the impression. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Okay.
1265
And how do you know in Government's Exhibit 3.16
you used the same force? A. How did the government know when they stamped flat plate
instead of tubing? Q. A. Q. A. Q. I'm asking you the question, Mr. Savage. It's unmeasurable. It's unmeasurable? It's unmeasurable. So you just kind of did it the way you felt like, there I'm sorry.
is no way to measure the force you used for the serial numbers that you placed on the tubes; is that correct? A. There's no way -- if you have enough force to form an
impression, then you have enough force to dent the tube. Q. A. Q. A. Q. A. Q. A. Q. A. Q. Okay. What dies did you use, please?
Quarter-inch. Do you have them with you? Yes, I do. Have you not presented them to the Court or myself? You didn't ask. Okay. But you do have them with you?
Yes, sir. Can you get them, please? Sure. Now, you talked about the underlying support, the
mandrel; is that correct? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. Yes. Okay.
1266
You need an underlying support so the tube doesn't
become distorted or dented; is that correct? A. Q. That's correct. Would a stop and bolt, sir, inside of machine gun be --
somewhat equivalent to a mandrel A. Q. A. No. -- and absorb the force?
Why not, please? You have to have
Because it's of a smaller size.
clearance in a machine gun between the bolt and the ID of the tube, because, otherwise, if it were the same size, it would be an interference fit. You wouldn't be able to cock the gun, and
then if the gun got any dirt, got heated in any way, due to thermal expansion, you're going to have problems and the gun is going to lock up. That particular bolt happens to be, I Either
believe by memory, about 20-, 25-thousandths undersize.
way, the tube would have dented at least 20- to 25-thousandths. Q. And can you compare the deep impression of the serial
number on Government's Exhibit 3.16 with your tube, your tubes, please? Do they appear to be roughly similar, or are they
different? A. Q. They appear to be roughly similar. Okay. But you're not sure, your just eye-balling it; is
that correct? A. That is correct. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. You never took measurements to show the depth of the
1267
serial number and the tube; is that right? A. Q. A. Q. A. Q. A. Q. That is correct? So how do you know, sir, that they are roughly equal? An educated guess. Based on what? My experience. Experience of doing what? Stamping serial numbers. Okay. How many guns have you manufactured in your
career, please, that were approved by ATF and are in the stream of commerce? A. I'm going to take a guess here because I don't have my
A&D book, but I'm going to say approximately 200 to 250. Q. Okay. Now, you say you are -- you are the owner and
operator of a concern called Historic Arms Limited Corporation; is that correct? A. Q. A. Q. A. Q. A. Q. Historic Arms, LLC. What does "LLC" mean, please? Limited liability corporation. Okay. And do you have a partner?
Yes, I do. Who is that? That would be my wife. Is she also a gunsmith? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. No, she's not. Does she have basically -- does she have a formal
1268
education in gunsmithing or manufacturing? A. She has nothing to do with gunsmithing or manufacturing,
she handles the financial end and the books. Q. Okay. So you're basically a one-man show; is that
correct? A. Q. That is correct. How do you know, sir, do you have anybody looking over
your work, do you have any protocols like peer review of the work that you do? A. My peers are the industry and they've paid me to design Typically only one or two prototypes, but
and build firearms.
it's the design work. Q. A. Q. All right. It's the nuts and bolts of it. All right. For instance, sir, you have a list of firearm
systems that you designed and a list of firearms that you manufactured -- well, list of firearms that you designed, is that correct, on your resume? A. Q. That's correct. All right. What firearms, sir, in your designs have
actually gone into production? A. Q. The Bren Mark II, the RPD -Please go slow. The Bren Mark II. That's the first one
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 in your resume? A. Q. A. Yes. Okay. What else, please? Actually, the design was stolen by another The SGM, or the SG
1269
The RPD.
company and they are running with it. series. Q. A. Q. A. Q. A. SGMSA; is that right?
SGMBSA, that's stand for SGMB semi-automatic. Okay. The 971 Sport Rifle is currently still in production. Okay. The Mag 58 semi-automatic is currently in production by
Ohio Ordnance. Q. A. Okay. And there are several that have started to go into
production and then stopped, just due to economics or whatnot. Q. All right. Out of these guns that have been manufactured
or being manufactured, how many have actually have been produced? A. Q. A. Q. As far as by the other manufacturers? Yes. The Bren Mark II SA?
I have no means of getting that information. Okay. Do you get a royalty for the manufacture of each
firearm? A. No. I'm paid flat rate up front.
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q.
1270
Could you tell the Court how much you got paid for your
design, please? A. I can go down by the numbers. I believe it was $30,000
for the RPD, SGMB -Q. A. Q. Sir, would you go a little slower please so I can check. Pardon me. For the Bren Mark II SA you got paid $30,000 for that
design? A. Q. No. RPD.
Let's start with the Bren Mark II that you said was in How much money did you get paid?
production. A.
I'm currently in production as well as another I'm not receiving any royalty or any money from
production.
that, other than my production. Q. So you're not getting any money for that; is that right?
What's the next one, you said RPD SA; is that correct? A. Q. A. That is correct. Is that currently in production? I believe they are tooling up for it, essentially. That,
and the SG series. Q. A. Q. A. Q. How much money have you got paid for that, sir? I think it was 30 or $40,000 for the design. All right. How long ago, please?
A year ago, year and a half. You got paid full cash value of 30 to $40,000? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. A. Q. A. Q. A. Q. A. Yes, sir. Okay. And the SGMB?
1271
That's part of that deal with Sentry, that and the RPD. Oh, it's together? Yes. Okay. And the 971 Sports Rifle?
That was $10,000. Okay. And when did you get paid for that, please?
Approximately four or five years ago. Okay. And you don't know how many are in production?
They are beyond 500, I know that, because they did a
change-out. Q. And what other stuff that's currently in production that
you designed? A. The Mag 58 is currently in production by Ohio Ordnance,
and that one paid $70,000. Q. A. Q. A. Q. A. Q. A. Q. What year did you get $70,000, please? A couple years ago. What year? I believe it was two years ago. So '06? Sounds about right. And you got a full check for $70,000? Yes, sir. Okay. Now, you said you had expertise in Erb Sten
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 machine guns; is that correct? A. Q. I said I had experience with them. Okay.
1272
Can you tell the Court what experience you have
with Erb machine guns, please? A. Knob Creek is a big machine gun shoot, it happens twice And occasionally, as these 400-some-odd guns are going And
yearly.
off at once, there are breakdowns and people need repairs.
I have provided repairs for people, typically very simple, main spring breaking, end cap, that type of thing. them. Q. So how many Erb guns did you repair so you're familiar I've also shot
with them? A. Q. I have no way of knowing. So then how can you tell the Court you have expertise in
the Erb machine gun, please? A. Q. know. A. Q. A. Q. A. I just gave it to you. You don't remember seeing any Erb guns at these shoots? That's not what I said at all. What did you say, please? I said that I've seen them at these shoots and I have had Pretty minor There's not I told the Court that I have experience with them? Okay. What experience do you have? The Court wants to
to at least repair, at least two of them. repairs.
Usually it's a spring or pin breaking.
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 much that can go wrong with them. malfunction. The tube itself doesn't
1273
It's usually the 60-year-old internal parts that
fracture or break. Q. So you're telling the Court, based on two gunsmithing,
fundamental gunsmithing repairs, you've become an expert in Erb IIs? A. I've had the opportunity to look on the inside of them,
how they were machined. Q. A. Q. How did you do that? You've got to take them apart to fix them, Mr. Kumiega. You've got to take apart the trigger housing, you said
these were minor repairs; is that correct? A. Yes, just minor repairs. Sometimes trigger housing and It all
sometimes the bolt and main spring have to come out. depends on the nature of the repair. Q. Right.
So the point is, from your examination of two Erb
machine guns, you have been an expert now in Erb IIs? A. And I've also examined all the evidence that was put up
here in the trial and was able to compare that with what I've seen in my examination Friday on the 19th. Q. So the two machine guns -- so what type of Erb machine
guns did you examine? A. Q. A. Mark IIs. How do you know they were Mark IIs? Because they had the removable barrel. They weren't a
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Mark II-S, which is an integrally suppressed model. Q.
1274
You know Mr. Erb manufactured more than Mark IIs; is that
correct? A. Q. Yes, he did. Okay. And just out of happenstance, at your Knob Creek
Shootout, you examined two Erb machine guns; is that correct? A. Q. That is true. And said you have examined the other guns, the bookend
guns that were placed in evidence? A. I was able to observe what was put up on the -- on your
monitors. Q. Okay. So you didn't actually have hands-on observation,
just what you saw on the monitors; is that correct? A. Q. A. Q. That is correct. That makes you an expert again; is that correct? I didn't say that. Okay. Then you can't -- if you're not an expert about
Erb guns, how could you talk about them? A. I'm an expert on manufacturing firearms and how firearms
are designed, sir. Q. All right. And here we have -- and you're asking the
judge to allow you to testify to your forensic observations about a Sten Mark II machine gun, not about its manufacturing or design; is that correct? A. Actually, that's not correct. Has to do with this:
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
1275
It's been my experience that when you stamp a tube, it crushes, it dents. Q. Okay. Let me ask you this, Mr. Savage: Where in your
report does it say, in your conclusions, please, I haven't seen a report that has your conclusions regarding -A. fly. You were only given a rough draft. It was done on the
We didn't even get the material for this until just
before I was called up. Q. A. Q. Mr. Savage, I just have two reports from you. Yes. Right. And there is no reports from you regarding your
analysis of the tube; is that correct? A. Q. A. That's incorrect. Can you show us, please, your reports? This one here, which was, I believe the one you're
discussing, Examination of Sten Serial Number E683, from front to back, talks about my analysis of the tubes and my measurements. MR. KUMIEGA: THE COURT: Your Honor, may I approach?
Mr. Martin, do you have witnesses that
will get us through the morning? MR. MARTIN: your Honor. I intended on him being my first witness,
I do not have enough witnesses to get us through
this morning without him. THE COURT: What other witnesses do you have
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Q. Honor? THE COURT: (Brief pause) MR. MARTIN: Yes. available? MR. MARTIN:
1276
May I look in the hall a minute, your
Your Honor, at the current time I only
have one witness here, and in all candor, I intended on that being my last witness. with that witness. THE COURT: How much longer, Mr. Kumiega? I think, maybe five or ten more minutes. Okay. Your Honor, may I approach? Yes. Mr. Savage, you talk about the For strategic purposes, I wanted to end
MR. KUMIEGA: THE COURT: MR. KUMIEGA: THE COURT:
(By Mr. Kumiega)
examination of the Sten E683; is that correct? A. Q. Yes. Where in that report -THE COURT: I can't hear you, Mr. Kumiega. Sorry, your Honor.
MR. KUMIEGA: THE COURT:
Go back to the podium. Mr. Savage, where in that report, where
(By Mr. Kumiega)
in that report does it talk about your analysis of the two tubes, please? A. It doesn't, because they weren't completed yet. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. A. THE COURT:
1277
Have you supplemented your report to give
the analysis of these two tubes? THE WITNESS: (By Mr. Kumiega) No, I have not. And why not, sir?
It's been a rather busy couple of weeks. Okay. When did you perform those tests, please?
I believe that would have been done either Monday or
Tuesday morning at the rear porch of Friesen Law Office. Q. A. Q. A. Q. A. Q. Okay. No. You just did it by yourself? Yes. And how long did it take to conduct those tests, please? Approximately a half hour. And within that half hour period of time -- do you have And did anybody aid you in those tests?
raw notes on that test? A. Q. No. I had those. So your tests comprise of you being on the
That's it.
back porch of Mr. Friesen's law firm and getting some type of tubes and pounding in a serial number. telling the Court? A. Q. Yes, sir. That's precisely what I'm telling the Court. Is that what you're
And how come you didn't generate a report right after you
conducted the test, please? A. Because I was in the courtroom. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. How about after the Court, after the day's testimony
1278
concluded, how come you did not generate a report? A. I didn't know you were going to want one. I figured the
tubes would speak for themselves. Q. Mr. Savage, you testified you said as an expert prior to
that; is that correct? A. Q. I have testified as an expert prior to that. And didn't the other courts require you to do an
extensive report of your testings procedures? A. Q. A. Q. No. They did not? They did not. Okay. Let me ask you this, Mr. Savage: Is it possible
to put an impression on a tube without denting the tube or deforming the tube? A. Well, if the metal is soft enough to take an impression,
then it's soft enough to dent. Q. Okay. But the question is: Is it possible to put an
impression on a tube without deforming the tube? A. Q. A. Q. A. If you use a mandrel. Even without a mandrel? Are we talking about impression or engraving? Well, how about both? Let's talk about both.
You could do it engraving, but you wouldn't be able to do
it with an impression, because unbacked up 16th-inch wall would B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 dent. Q.
1279
You were sitting in the courtroom during the testimony of
this trial; is that correct? A. Q. Yes, sir. And you understand that Mr. Kong testified that there was
some type of engraving marks in Government's Exhibit 3.16; is that correct? A. Actually, he never testified that there was any engraving I believe he used the word "scribing." Is that basically the same?
marks. Q. A. Q. A. Q. A. Q.
There were scribing marks. No.
What's the difference, please? Engraving is done with a turning tool bit. And scribing? Scribing is just a scratch. Okay. So is it possible, again, to put an impression on
a tube without deforming it? A. Q. Not in my experience. Okay. And the forces that you used, sir, in each tube,
are they the same? A. Q. Yes. Okay. I used the same size hammer. What's the difference between one of the two
tubes? A. Q.
What's the purpose of having two tubes?
Multiple strikes. One is multiple strikes -B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. One is two strikes, one is just one strike.
1280 But multiple
strikes was discussed during testimony, also in Mr. Kong's report. Q. Going back to the Erb machine guns, since you only
examined two, said in your report that an unknown person opened the magazine well; is that correct? A. That is correct. The appearances of the tube show that
whoever machined all the openings excepting the mag well did it with a fairly high degree of skill. The only opening that
shows rather an amateurish lesser skill level would be the mag well opening, and the welding technique used to attach the mag well is, by all appearances, the same welding technique that was used to attach the trigger housing. Q. You also said, sir, that an unknown person put the Sten
serial number E683 on that firearm; is that correct? A. Q. A. No. That's not correct.
Can you please read the fifth paragraph for the Court? "By appearances of the differing techniques used, the completed Sten serial number E683 was constructed in two separate steps by two different persons. First, the receiver manufactured by Charles Erb, who machined all openings of the receiver except for the mag well opening, then by an unknown person who opened the mag well opening, completed construction of Sten serial number E683." B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. A. Q. Stop right there. The last phrase, it says:
1281
"Then by an unknown person who opened the magazine well opening and completed construction of Sten serial number E683." Is that correct? I was identifying the firearm, not the serial number. Excuse me? Read that sentence again, please.
"By appearances and the differing techniques used, the completed Sten serial number E683 was constructed in two separate steps by two different persons. First, the receiver manufactured by Charles Erb, who machined all openings of the receiver except for the mag well opening, then by a unknown person who opened the mag well opening and completed construction of Sten serial number E683." Are you telling the Court that serial number E683 is a
Charles Erb serial number? A. E683 is a Charles Erb serial number. I know that by
looking at the documents. Q. A. Q. A. Q. By looking at the documents? Yes. Okay. Yes. Not by examining the gun itself? By looking at the gun itself. Tell the Court how you know that's a Charles
All right.
Erb Sten serial number on that firearm. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. How do I know that it's his serial number? Yes. I don't, but it looks a whole lot like.
1282
There is no way
for anybody to know for a great degree of certainty, because at any point in time, I mean, this thing is 22 years old.
Somebody could have polished it out, somebody could have remarked it. Several of the exhibits that were shown during
court were remarked and obviously not remarked by Charles Erb. One with a line stand and one was, as he put it, was a billboard, and he said he didn't mark it. It's very common for
people who have a 22-year-old gun, where marks start to erode, to remark them to make sure if erosion happens there's still identifying serial number and manufacturer's information on it. Q. Mr. Savage, how do you explain to the Court how the two
bookend serial numbers by Mr. Erb are so vastly different from the serial number that you examined? A. How do you explain to the Court where the one that's in
the trigger housing looks almost similar to it? MR. KUMIEGA: the question. THE COURT: You need to answer the question as asked. The bookend numbers could be completed Your Honor, can you ask him to answer
THE WITNESS: at same the time.
There's other ones that show that this was It doesn't There
done at a time and stamped by differing people.
mean he went number by number when he assembled them. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
1283
were all thrown in a pile in a shelf, as he put it, and they would just pull down one and complete it. Q. (By Mr. Kumiega) So you're saying to the Court you
really have no way of knowing who made that, who put the serial number on that firearm; is that correct? A. Q. I have no way of knowing? I have -- no, sir, I don't.
It's possible Mr. Friesen could have put that serial
number on the gun; is that correct? A. It's possible the man in the moon could have, it's There's no way with any great degree
possible you could have.
of certainty that anybody can tell you who put that serial number on. Q. And you talked about your experience with paint; is that
correct? A. Q. Yes. All right. Do you manufacture guns, just the whole
firearm or just the tubes or receivers? A. Q. A. Q. A. Q. Sometimes a little bit of both. Okay. And do you place serial numbers on those firearms?
Yes, I do. And do you place serial numbers before they are painted? Most times. Most times. So would it be fair to say that your
experience with paint, after a serial number is then placed on it, is really not extensive? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. No.
1284
That would be incorrect, because I mark weapons and
have had to sometimes put an historical marking on the weapon after it was already painted and coated because of a customer request. Q. A. Q. A. So --
So one customer request? No. Several.
How many? Thirty or 40. I don't have my records in front of me.
So -- but that's an educated guess. Q. A. Q. A. Q. And you said your shop is in Georgia; is that correct? That is correct? And where is it located? 1486 Cherry Road in Franklin, Georgia. And can you describe the equipment you have in your shop,
please, for the Court? A. I've got a vertical mill, I've got a 48-inch-by-16 lathe,
I've got a welding table, and I've got two assembly benches, blasting cabinet, parkerizing tanks, baking ovens for phenolic resin finish. Q. That's -- that's most of the major equipment.
Regarding the paint, sir, did you conduct tests, like Mr.
Kong and Sarah Walbridge, to say how the paint was embedded or not embedded in the serial number? A. Q. Actually, yes, I did. Okay. And did you bring the results of those tests to
the Court? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 they? THE WITNESS: MR. MARTIN: know where they are. your Honor? THE COURT: MR. MARTIN: Yes. Should be in that box. A. Q. A. Q. A. Q. Kong? A. I don't have a problem with it. MR. MARTIN: I have no clue where they are. The results of the test or the actual samples? The actual samples. Yes, I did. Did you? Are they here today? Yes, they are.
1285
Yes, I did. Okay.
And may I have them so I can show them to Mr.
Where are
We've provided them to them, I just don't If we need to stop -- may I approach,
While we're here, your Honor, I believe
I've asked for their samples last Friday and was told they would be made available today. MR. KUMIEGA: MR. MARTIN: MR. KUMIEGA: would give them. MR. MARTIN: He was supposed to bring them back, Mr. I don't believe I remember saying that. It's on the record. Mack, you know if you asked for it I
Kong was supposed to bring them back, as I recall. MR. KUMIEGA: I don't remember that, your Honor.
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE WITNESS: There's several in here.
1286 These are very
similar to what Mr. Kong performed. Q. (By Mr. Kumiega) And your use of abrasives, Mr. Savage.
You have extensive use of abrasives in your work? A. Q. A. Q. Yes. For what reason, please? For refinishing. So it's not for manufacturing or designing firearms --
let me finish -- it's not for manufacturing firearms, it's for another area that you work with; is that correct? A. Q. No, that's not correct. So you use abrasives for manufacturing and designing
firearms? A. Q. A. Yes, I do. In what way, please? Well, if you want the finish on the gun to be right you
have to use abrasives, especially if you're smoothing out rough edges, getting the gun cleaned up for final finish. also buff and polish. Q. Same question for solvents. Do you use solvents for And we
manufacturing and designing? A. Q. A. Q. Yes. Acetone and methyl ethyl ketone, to be specific.
Anything else? Anything else in the way of solvents? Yes, sir. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. Those are the two primary ones that I use. All right.
1287
There's been testimony that Mr. Friesen put
some type of charcoal paint on Government's Exhibit 3.16; is that correct? A. Q. A. Q. A. Q. A. Q. Yes. Okay. That is correct. Is that consistent with charcoal paint?
You mean barbecue paint, high-temperature paint? Yes. Yes. How do you know that? Because it's extremely brittle. Right. So that would have -- what does that mean, what
does that tell you? A. High enamel content, I would image. You don't want
anything in there in the way of plastics because it will get hot and burn off. Q. All right. What's the typical type of paint you would
put on a machine gun if it's going to produce a lot of heat as it fires multiple rounds? A. car. Barbecue paint or high-temperature, header paint for a I personally don't like paint, I like phenolic resin,
because it's far more resilient. Q. So you're saying that when you put charcoal paint on a
firearm for heat purposes that paint is going to be brittle and flake off? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. It's going to be brittle. Yes.
1288
How many layers of paint are on that gun? I've heard that there's one, but I see evidence right now
by the naked eye that looks like there's a second layer of paint. Q. A. Q. A. Q. that? A. Q. A. Q. No. This is just a new observation? No. So you were going to testify to this the whole time Is that what How do you know that? Because of the differing colors. The different colors of the paint? Yeah. If you come here I'll show it to you. Did you write a report of
Well, let me ask you this:
without writing a report and generating a report? you're telling the Court? A. I wasn't going to testify about it at all.
You brought
it up. Q. Well, the point is, you were not going to mention that at
all, but now you are? A. I have no plan on it. I mean, it really doesn't have
anything to do with my testimony. Q. Wouldn't it be fair to say, sir, you did not do a
comprehensive report on this gun; is that right? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. My report was focused on the techniques used to
1289
manufacture this firearm. Q. A. All right. And the techniques used to stamp a number into this
firearm. Q. All right. And obviously, in your report, Examination of
Sten Serial Number E683, there is no mention of the experiment that you performed in the back of Mr. Friesen's law office; is that correct? A. Q. Yes or no, sir.
That is correct. All right. And there is also no mention now that you
found a second layer of paint on that gun in any of those reports; is that correct? A. Yes or no. Yes or no, sir?
Restate the question so I can understand it clearly.
You're confusing. Q. Mr. Savage, there is no mention in any report that's
saying there was two layers of paint, black paint on Government's Exhibit 3.16? A. Q. That is correct. All right. So is there anything else that you're going
to testify to that you've not advanced a report regarding? A. No. And the only reason this wasn't in the report is the
report was done on the fly to get it to you, and it was before I was able to perform a test, because when you talked about comparing apples to oranges, flat plate to round tube is about B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 as far apart as you can get.
1290
And they used flat plate and I Even their
tried to replicate it and got very similar results.
pictures don't show -- what they testified to doesn't make sense. a tube. Q. You heard the testimony of Ms. Walbridge and Mr. Kong And I knew the dynamics of what happens when you stamp
about how people would have peer-review of their documentation to ensure the reliability of their forensic testimony in court; is that correct? A. Well, they didn't put it that way, but I did hear them Yes, Mr. Kumiega.
talk about peer review. Q. A. Q. A. Q.
Did anybody review your work, sir? Anybody? Yes. Yes. Okay. I believe that the defense attorney did. And besides the defense attorney, somebody else
that has your equivalent level of expertise, anybody else review your work? A. Q. A. Yes, actually. Who is that? That would be Professor Ed Shaughnessy of Duke University
School of Engineering. Q. A. Q. And Professor Ed Shaughnessy from Duke University? Yes. And he actually reviewed your work for today's -B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A.
1291
I went over everything with Professory Shaughnessy to
make sure that I didn't miss anything. Q. A. Q. A. Q. A. Q. A. Okay. And when did you do that, please?
Last week. Okay. Last week?
Last week. Did you do that by phone or in person? By phone. Did you show him the reports? I believe I emailed him a copy of the report and I also
gave him a copy of the transcript of the first part of my Daubert. Q. A. Q. A. Q. Okay. And he's a professor of what, please?
Mechanical engineering. He's not a gunsmith? No. Okay. Mechanical engineering. You said you did this
about a week ago? A. Q. A. Q. It was sometime last week. And how many minutes was your interview with him, please? I didn't put a clock on it. Okay. Let me ask you this: You're also being charged --
you're charging Mr. Friesen for your testimony today? A. Q. Yes, I am. And what is your hourly rate, please? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 second. Q. (By Mr. Kumiega) Sir, isn't it true that Professor A.
1292
While I'm not getting anything done in my shop I charge
him what my shop typically takes in per day. Q. A. Q. And that would be? About 1500 a day. Okay. MR. KUMIEGA: Your Honor, I'll be finished in a
Shaughnessy is not an expert in mechanical engineering? A. He's a PE, professional engineer, and he's got a Ph.D. in If you want to be specific, I believe But it is
mechanical engineering.
he teaches fluid dynamics or something like that. true, he is an engineer, a mechanical engineer. Q. Right.
But his specialty is fluid dynamics, not He teaches those
mechanical engineering; is that correct? courses at Duke University? A. Q. A.
He teaches those courses at Duke, but he's also a PE. A PE? Professional engineer. You have to take a test, you're
certified by the government. Q. A. Q. A. Same type of test you took, right? Pardon me? Same type of test you took? Did I ever say I was a PE, Mr. Kumiega? MR. KUMIEGA: Nothing further, your Honor.
1293 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: your seat. We'll bring the jury up and -- take about a ten-minute recess and I'll make my ruling before I bring the jury up. We'll take about a ten-minute recess. (A recess was had, after which the following was had in open court:) THE COURT: First of all, I would just say that while Thank you, Mr. Savage. You may retake
the Court has some concern about a supplemental report not being provided as it relates to the tubes, and I've expressed some concern about the lack of underlying reports being submitted by both the government and the defendant as it relates to their experts prior to trial, the Court feels that there was enough testimony relating to Mr. Savage's experiment with the tubes on Wednesday before the tubes were sent to Mr. Kong for his own testing, and that the government was on sufficient notice as to the methodology used to and how Mr. Savage had conducted that test. Also I would recall Mrs. Walbridge's testimony about, which was, I think somewhat similar in that basically there was no examination of the metal that she used in conducting her tests. And so the Court is going to allow that testimony as it
relates to the tubes. I am concerned a little bit about several questions such as relating to paint and such as serial number, who put the B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
1294 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 serial number on and everything, and I don't -- it's not my understanding from reading the reports and from earlier testimony on direct that Mr. Savage intended to even testify on those matters but only responded upon your cross-examination, Mr. Kumiega. So, and as he stated in his further examination, And so
he can't testify as to who put the serial number on.
there should be no expert testimony that he has any knowledge whether he knows the serial number was put on originally or later or who put it on. MR. KUMIEGA: Your Honor, may I ask Mr. Savage, if he
knows if Mr. Erb put the serial number on the firearm? THE COURT: You can ask him whatever you want to, but But you can
he can't give any expert opinion as to who did it. ask him whatever you want.
While Mr. Savage's expertise is from his own practical experience in dealing with painting and coating and placing serial numbers and polishes and abrasive, the Court feels that that does give him some expertise in those areas, and will allow him to under the Daubert -- I do find he's qualified under the requirements of Daubert, and that his testimony would assist the triers of fact in this matter. As I stated, however, there is some caution in that he's not to testify on matters that are either not in his report on matters that he did not intend on testifying and Mr. Kumiega has brought them out on cross-examination about the two layers B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
1295 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 of paint and things like that, because I think he's done no testing on that, and my understanding from his own testimony he was not intending on testifying about that, but simply answered Mr. Kumiega's questions. MR. MARTIN: Your Honor, I believe he will testify He did that
about the impact of stamping on painted material. last Friday. THE COURT: MR. MARTIN: THE COURT: No. No.
I said he could testify on that.
Okay. So the Court will qualify and finds Mr.
Savage qualified to testify as set forth. Are you ready to have the jury brought up? MR. MARTIN: (Brief pause) MR. MARTIN: THE COURT: Yes, your Honor. Mr. Kumiega, has Mr. Kong provided any May I have just a moment?
supplemental report on his rebuttal testimony? MR. KUMIEGA: Martin, your Honor. MR. MARTIN: MR. KUMIEGA: MR. MARTIN: I'm sorry? You got that. I got Mr. Kong's report, your Honor, just Yes. I've turned that over to Mr.
when Mr. Kumiega said he was going to give it to me, when Mr. Savage got on the stand. Your Honor, last Friday I provided Mr. Kumiega several B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
1296 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 mention. photographs of firearms which have been marked as Defendant's Exhibit 113 -- 113, a series of 113, and a series of 114 and 115 exhibits, which I believe Mr. Savage will testify are firearms that he looked at that indicate what firearms look like after they have been painted and been stamped. And I
think Mr. Kumiega may want -- I'm going to offer them through Mr. Savage, these photographs. And I think Mr. Kumiega might
want to take it up now before the jury gets here. THE COURT: Let me mention one other thing I didn't
I heard -- I didn't hear really sufficient testimony Two minor
that Mr. Savage is an expert on the Erb machine gun.
repairs at a gun show I don't think qualify him necessarily as an expert on the Erb machine gun itself, or any -- he can testify as, I guess, he can testify generally about machine guns and his knowledge of those, but I didn't find any specific qualifications of him to testify about the Erb machine gun as opposed to others other than his own observations as it relates to any machine gun. And I think that those, I think there was
testimony earlier about the differences in those two machine guns, about one being the seamed -- you had lengthy testimony with regarding the differences, didn't you, Mr. Kumiega? MR. KUMIEGA: Yes, your Honor. I think it goes
basically to the length of the tube.
I'm not sure what purpose
Mr. Martin is going to use that exhibit. THE COURT: What I heard him testify to was about it
1297 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 called. being a single unit or wrapped around with the rivets and so forth, and I think there was extensive testimony about that earlier. MR. MARTIN: My client -- not my client, your Honor.
Mr. Savage, I believe, your Honor, will use Defendant's Exhibit 112, which is the front end of a Sten III, showing that it's a flat piece of metal put together and welded at the top, and that it has rivets here, and use that to note the distinctions between the -THE COURT: Wasn't there extensive testimony about You don't dispute the difference, do
that difference earlier? you, Mr. Kumiega? MR. KUMIEGA: MR. MARTIN:
No, your Honor. Their expert, your Honor, has It's our position that this is
characterized this as Sten III.
a Sten III, Defendant's Exhibit 112, because it has those unique characteristics about it. This, I believe my witness
will testify that in his opinion this is more consistent with, I may get the terminology right -THE COURT: MR. MARTIN: A Sten II. A Sten II-S, I believe is what it's
I believe they added -- I believe it was actually a Yes. This will be the only thing
Sten II-S; is that correct?
I intend to ask him about as relates specifically to Stens, Defendant's Exhibit 112. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
1298 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: Okay. And what's the objection?
MR. KUMIEGA:
I didn't see -- I don't know if it's I'm
going to be a demonstrative exhibit or an actual exhibit.
not sure for what purpose Mr. Martin is going to introduce it, nor did he give me notice about it being introduced until minutes before this hearing. THE COURT: I guess the purpose is to show the
difference in the guns, right? MR. MARTIN: THE COURT: Correct. Okay. Correct.
And what about the pictures?
I'm sorry, your Honor? Do you have an objection to
The pictures.
the pictures, Mr. Kumiega? MR. KUMIEGA: I'm not sure what the relevance of the
pictures are, your Honor, regarding the Sten, the serial number based on 3.16. MR. MARTIN: I believe, your Honor, that Mr. Kong
testified that he's -- on the government's case in chief he gave me names of several firearms that he's familiar with that actually are stamped prior to painting. And I believe these
are photographs of some of those very guns that have been stamped after painting. And it's obvious from reviewing the
photographs, and my expert will testify to that and point out that the very guns Mr. Kong testified about has, that are consistent with being stamped prior to painting are stamped B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
1299 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Ring. (The following was had at the bench, out of the hearing of the jury:) MR. KUMIEGA: Your Honor, prior to -- my understanding Honor. THE COURT: My staff doesn't agree with that, nor Ms. after. It kind of serves two purposes. Number one, it shows
what they look like, and number two, it rebuts the testimony of Mr. Kong. MR. KUMIEGA: Your Honor, the government's position is
by looking at the photographs, and this is my consultation with Mr. Kong, you cannot tell at what phase the serial number was put on unless you actually call the manufacturer and ask. These are totally different techniques. THE COURT: You're going to have Mr. Kong rebut, so -Yes.
MR. KUMIEGA: THE COURT: MR. KUMIEGA:
-- he can testify. Yes, your Honor. May I approach the
bench regarding one issue, your Honor? THE COURT: too close to me. MR. KUMIEGA: Federal judge germs are okay, your Okay. If you are not afraid of getting
is Zella Holder is going to testify in this case. THE COURT: MR. KUMIEGA: Who? Zella Holder. The person that
1300 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 jury. apparently watched, or alleges that she watched Mr. Friesen either cover up the serial number or uncover it. talk to her outside; she refuses to talk to me. find out if she has a criminal history. I tried to I wanted to
I was there with Mr. I was
Knopp and she refused to answer those questions.
wondering if I have latitude on cross-examination of Ms. Holder when she takes the stand regarding those issues. She's had
some brushes, but I think the documentation is somewhat old, and I'm not sure -THE COURT: I don't think you can get into it unless
you've got some proof. MR. KUMIEGA: MR. MARTIN: Okay. I'm not aware of any, your Honor. I know
years ago there was something about a minor -- but that's it. THE COURT: Unless you've got documentation. Okay.
MR. KUMIEGA:
(The jury was brought into court.) THE COURT: Case Number CR-2008-41-L, United States of Are parties ready to
America versus Larry Douglas Friesen. proceed? MR. KUMIEGA: MR. MARTIN: THE COURT:
Yes, your Honor. Yes, sir.
Welcome back, ladies and gentlemen of the
I hope you've had a good long weekend and ready to get
back to work. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. MARTIN: Q.
1301
Mr. Anderson, I picked up not only your cough, but a whole lot more than your cough, so I'm a little stopped up and I won't -- I'll try not to spread any of these germs to any of you. So with that, Mr. Martin, you may call your next witness. MR. MARTIN: to the stand. THE COURT: Mr. Savage, if you would come forward and Your Honor, we would call Lennis Savage
raise your right hand to be sworn, please. (Witness sworn) THE COURT: Again, ladies and gentlemen of the jury, I We've been here since nine working on
tell you I apologize.
this case and thought we could finish it by ten but didn't quite finish all of the issues. You may proceed, Mr. Martin. MR. MARTIN: Thank you, your Honor. LENNIS SAVAGE, called as a witness, having been duly sworn, testifies as follows: DIRECT EXAMINATION
Would you introduce yourself to the ladies and gentlemen
of the jury? A. My name is Len Savage, and I own a company with my wife
called Historic Arms, LLC, where we design and build firearms. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Let me ask you, sir:
1302
Tell the ladies and gentlemen of
the jury a little bit about your background. A. Well, I have a federal firearms license as a manufacturer I also hold a Special Occupational Taxpayer Silencers,
called a Type 07.
Stamp which means that I can manufacture NFA items:
machine guns, short-barreled rifles, short-barreled shotguns, everything just underneath destructive devices. Q. All right, sir. With that background, do you have any
experience in the area of machine guns? A. I do. I've designed several machine guns as well as I repair machine guns from time to
semi-automatic firearms.
time, specifically the pre-'86 stuff that's starting to wear out. And I also work on caliber conversion systems from time
to time for lawfully possessed machine guns. Q. A. Q. A. What was that last part? Caliber conversion systems. What is that? It's kind of like a drop-in that allows a machine gun
that shoots a real expensive round to shoot a cheaper round. Make it more economical. Q. All right, sir. And you have certain licenses that have
been issued by the ATF; is that correct? A. Q. A. Yes, sir. And those are? The federal firearm license we discussed, an 07 B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 manufacturer's license, which allows me to manufacture and sells firearms to the general public, and as well as the Special Occupational Tax Stamp. Q. Let me ask you, sir:
1303
How long have you been involved in
firearms? A. Since about the eighth grade when I built my first one in
shop class. Q. Not to be presumptuous, how many years would that be,
approximately? A. Q. About 20, 22 years. All right, sir. And let me ask you: Would it be a fair
statement that you're fairly familiar with the operation of machine guns? A. Q. Yes. All right. Have you performed any research or
development or worked with any manufacturers relating to firearms, sir? A. Q. A. Yes, I have. Would you tell us who those are and what it might be? I've designed firearms for other much larger
manufacturers, did the research and development, got the design that the customer wanted, and then sought ATF approval through Firearms Technology Branch to verify they were compliant with all the laws. Q. So I don't miss any here, RPB of Atlanta.
Is that a manufacturer? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Yes. Okay. I'm sorry.
1304
And specifically, the gun I designed for them was the 971 It was a joint project
Sport Rifle, them and Masterpiece Arms. between the two.
Century Arms International, I designed a
couple of firearms for them, the RPD semi-automatic and the SG series. They are an historic machine gun that we figured out
to make a closed bolt semi-automatic so people could own a working piece of his inventory. Ohio Ordnance Works, I The Mag 58 is pretty much
designed the Mag 58 semi-automatic.
the same gun as the USM 240 that is right now being fielded by our Army, but I figured out a way to make it semi-automatic so that when you only pull the trigger it will only shoot once until you release the trigger and pull it again. Light Weapons Systems. And Calico
I had designed a Calico upper for the Calico is kind of unique. It's a
Mac series machine guns.
spacy-looking gun that has a helical feed magazine that feeds from the top in a spiral and it holds between 50 and 100 rounds of ammunition. Q. A. Q. All right. No. Was that all of them?
That's a good chunk of them. Let me ask you this: Over your years of
All right, sir.
experience, background, and training with firearms, have you been involved in any type of publication, written articles or documentaries about any of the type work you've performed, sir? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Several. Can you tell us a little bit about that?
1305
Some of my gun designs have been in some magazines where
they've been featured for being the first ever semi-automatic version. The Bren was published in Small Arms Review, the RPD, An occasionally I've wrote an
and, you know, several others.
article, and I was involved in a couple of documentaries having to do with urging the ATF to adopt some written testing standards. Q. Have you ever had the opportunity to, sir, to serve as a
technical adviser or expert witness in court before? A. Q. A. Yes, I have. On how many occasions? Five or six occasions, and I've qualified as an expert One in
witness in two previous federal court districts:
Seattle, Washington and one in Milwaukee, Wisconsin. Q. Let me ask you, sir: Are you -- have you applied serial
numbers to a firearm? A. Q. Yes, I have. And let me ask you: Based on your experience and
background and having done that, are you familiar with what happens to metal when it's stamped? A. Q. Yes, I am familiar with that. All right. Have you ever had to restore markings to
firearms? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Yes, I have.
1306
Some of the guns we do are, like I said, We actually use pieces of the And
working pieces of history.
original historic gun, and over time markings become worn. so I've had to restore the markings or replicate them for people who are wanting a very specific date code or manufacturer's proof mark. Q. Let me ask you, sir, in particular:
In this particular
case, have you been given the opportunity to examine, measure, photograph, or whatever, what's been previously introduced as Government's Exhibit 3.16? A. Q. A. Q. Yes, I have. And is that in front of you, sir? Yes. Okay. And based upon that, sir -- well, first of all,
tell us what you did. A. Well, during my examination, I, of course, looked it
over, the tube, from front to back, looking for any other marks or any other tell-tales. A lot of times, when a mark gets
washed out due to use or rust, sometimes you can see just a corner of it. You're looking for 90-degree angles or circles. And then the next thing I did was I
I didn't see that.
measured the outside diameter of the tube in several locations throughout the length of the receiver, as well as the thickness of the tube that the receiver is made from. Q. All right, sir. And did you perform any kind of
Savage - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 measurements or anything? A. Like I had told you, yes.
1307
We measured the thickness of
the tube, and the measurement of the outside with a set of micrometers to verify that the tube was straight and true and not bent. Q. A. What is a micrometer? A micrometer, more specifically, a micrometer caliper The particular one I used
measures in thousandths of an inch.
actually will give you a half of a thousandths of an inch, or five-ten-thousandths. Q. That's how accurate it is.
I'm going to hand you for demonstrative purposes a Would you tell us what that is?
toolbox with a kit in it. A. Q.
That's a micrometer caliber. Just show us briefly, on the end of 3.16, end of the
barrel, what you did. A. Well, turn it on, you make sure it's zeroed. And it's
placed on the receiver, then you close the jaws, make sure that you're square, it's tight and you take your measurement. Q. And you performed that measurement in numerous different
places? A. Q. Yes, I did. Okay, sir. I'm going to ask you if you would to look at
what's in front of you, I believe, it's an exhibit book, defendant's exhibit book there on the your left. that device. 116. Do you see 116, sir? I'll come get
Savage - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Q. A. No, I don't. MR. MARTIN: THE COURT: MR. MARTIN: THE COURT:
1308
May I have just a moment, your Honor? Yes. If I might approach, your Honor. You may approach. I'm going to hand you, and if you'll
(By Mr. Martin)
look at the back of that, is that 116, sir? A. Q. Yes, it is. And would you tell us, first of all, that's a photograph,
is it not, sir? A. Q. A. Q. A. Yes, it is. Who took that picture? I did. Would you tell us what's depicted in that picture? The Exhibit 3.16 in a state of disassembly typically
called field-stripped. Q. Is that how it was presented for you for your
examination, sir? A. Yes, sir. MR. MARTIN: Your Honor, I move for introduction of
Defendant's Exhibit 116. MR. KUMIEGA: THE COURT: No objection, your Honor. Will be admitted. And as a matter of fact, if you would, If you would look at
(By Mr. Martin)
sir, in front of you are 116 through 128.
Savage - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q.
1309
all those, I'm going to ask you a series of questions about those, then I'll come back to them individually. A. Q. A. Q. Okay. And who took those pictures? I did. And would you tell us, without going into each one of
them, are those all photographs of the firearm, sir? A. Q. Of this firearm right here. Yes, sir.
And were those photographs taken during the course of one
of your examinations of the firearm? A. Yes, sir. MR. MARTIN: of 117 through 128. MR. KUMIEGA: THE COURT: No objection, your Honor. Will be admitted. All right, sir. And if you would, sir, Your Honor, I would move for introduction
(By Mr. Martin)
this is photograph 116, is it not, sir? A. Q. Yes, it is. All right, sir. And this was the photograph of the
firearm when you first saw it; is that right? A. Q. That's correct. And this photograph, it was taken at the, I don't want to
say headquarters, but it was at the ATF office? A. Q. Yes. ATF field office here in Oklahoma City. And you also took what's already been
All right, sir.
Savage - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 introduced as Defendant's Exhibit 117.
1310 I'm going to show you
that, sir, and ask you what is depicted, although there is some glare there, what is depicted in that photograph and why you took it. A. Well, there's a picture of the micrometer caliper that I
used to do my measurements. Q. A. Q. A. That's this device right here? Yes. Okay. And there's red evidence tape just a little bit above
that was removed so we could measure the tube's outside diameter as accurately as we could. port and the cocking slot. Q. Where is that? Is that this item right here And if you notice ejection
(indicating)? A. No. It's right next to it, a little bit to the left.
Right there. Q. A. That's the ejection port? That's the ejection port. And if you notice, it's
machined cleanly, and you can see a radius in the corners that it appears that this was done on a milling machine and done very neatly. The same goes for the cocking slot. Everything
is very machined uniformly. precision. Q. All right, sir.
It has been done with a degree of
Defendant's Exhibit 118.
Can you see
Savage - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that, sir? A. it. Q. A. Q. Is this another photograph, sir? It is.
1311
Not on the monitor because of the glare, but I do have
And when you took this photograph what were you trying to
encase within the photograph? A. Q. Well, right across the serial number -Let me see if I can get that. Is this the serial number
right in this area? A. Yes. Bring it down a little bit where the glare will It's not working. Over here?
maybe come off. Q. A. Q. A.
Right there?
Still a pretty good glare. That's the area we're talking about? Yes. In the photograph that's in front of me, I can see
it clearer than the monitor, there's a couple of spots where paint was removed. And this happened when I was using my
calipers to measure the diameter of the tubes directly across the top of the serial number and found out that the paint was rather brittle and it came off during my examination and my measurement. Q. A. Q. All right, sir. Yes, I did. Okay. And I'll come back to that in a moment. And you measured over the serial number?
Savage - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Government's Exhibit 119, can you see that, sir? A. Q. A. Yes, I can. And what was the purpose of this photograph, sir?
1312
Well, it shows a little greater detail of the machined
cuts of the cocking slot and the ejection port and the neatness of them. Q. All right, sir. I'm going to put on here what's 120,
sir, and ask you if you can see that. A. Q. A. Again, not on the monitor, but in front of me. What is it a picture of? It's a picture of the mag well opening. What's
significant about it -Q. A. Q. A. And on the picture here, what is the mag well opening? The mag well opening is -Is that this area here (indicating)? Yes. If you notice, there's kind of a flap that goes
over the magazine well or housing which latches the ammunition magazine into the gun and retains it while the gun is operating. And if you notice, it's done far cruder than the
rest of the tube. Q. Can you show us that with the Sten? Actually, take the
gun there and show us. A. Sure. And the reason for the photograph was to show the
differences, because this is done very neatly (indicating), this is done very neatly and precisely, and this particular B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 opening was done very crudely.
1313
And it looks like it was done
by a different person who took the time to machine this so precisely. Q. Okay. And in the photograph, there is some type -- what
are these things here, if you can see? A. These are cap screws, end cap screws, number ten cap And they are a threaded screw that -- there's threads
screws.
that have been tabbed into the interior bushing, and possibly even part of the outer tube, and they are used to attach the forward barrel bushing and the rear barrel bushing as well as the shell deflector right here to the gun. Q. sir. you? A. Q. A. Q. A. Yes, I do. And what was your purpose for taking that picture? Well -Again, using the firearm since it's a little more -If you notice, the welding here and right here Okay. I'm also going to put out Defendant's Exhibit 121, You have the photograph in front of
Can you see that?
(indicating), as well as right here, that attach the trigger housing on both sides, are very similar, very crude. There's
flux and porosity, or little holes, pin holes in the weld, that looks like this was done probably by a stick welder or standard arc welder. Q. And is that in Exhibit 122, is that what this is a B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 close-up of here, right here, this weld? A. Q. Yes. Okay.
1314
And again, sir, Exhibit 123, what were you trying
to capture in photograph 123? A. Well, there was red evidence tape on top of the receiver
just in front of the rear sight. Q. A. Is that this here, if you see it on the monitor? Yes. And both myself and Agent Knopp were using our
thumbnail to try to remove a little bit of it so that I could get as close of measurement as I could, as well as I wanted to verify that underneath the tape there wasn't any markings or impressions. Some of the paint came up with the red tape, I
mean, just, it was on there pretty good. Q. tape? A. Yes. Another photograph of the red tape, but also if you And Exhibit 124, again, another photograph of the red
look on the inside of the receiver, you'll see a nice neat 90-degree machined cut for the retaining latch that holds the main spring and main spring housing in place when the gun is assembled. Q. A. Q. A. It's what keeps all the guts in it.
Are you talking about right here (indicating)? Yes. That 90-degree angle? Yes. Again, very neatly, very precisely machined as As a matter of fact, the gun
compared to the mag well opening.
Savage - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q.
1315
in its entirety, excepting the mag well opening, was machined very precisely. Q. All right, sir. Let me ask you: Relating to the
Defendant's Exhibit 125, do you see that, sir? A. Q. Yes. In particular, what were you trying to focus on in this
picture? A. Q. A. If you go over by the socket-head cap screws. Right there? Back up a little bit. Bring it back into focus. All
right. gun. Q. A.
You'll see halos, or little rings in the finish on the
Are you talking about in this area here? Yes. What it shows to me is at some time that firearm
has been exposed to solvent and it's leaching out from underneath the heads of the screws. MR. KUMIEGA: for that statement. THE COURT: Be sustained. Lay some foundation. Have you used in Objection, your Honor. No foundation
(By Mr. Martin)
Let me ask you, sir:
the past in your years of experience, training, and background, have you ever used solvents on firearms? A. When I build a firearm, yes. We use a couple of
different solvents in my shop:
Methyl ethyl ketone and acetone
to break down coatings, paint, to get grease off before you B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 apply a coating.
1316
It's happened to me before and I've had to
refinish the gun, because what will happen is that if I don't get all the solvent out, you apply the finish to the gun, and it could be days later or weeks later it forms a halo as whatever is leaching out starts attacking the paint. Q. So have you seen from your background and experience
these types of halos like are depicted in this photograph, and I've got some others here? A. Q. Yes. Let me show you what's been introduced as Defendant's
Exhibit 126, see if that's a better one. A. Q. A. You can see it real good, especially on the bottom. That area there (indicating)? Yeah. And you can see where the paint is starting to
come off right there. Q. You've noticed this in the past after you've applied a
solvent, and then what happens? A. Well, if you don't have all the solvent out when you put
a finish on a gun what ends up happening is the stuff leaches out and it attacks the finish on the gun and it leaves a distinctive ring around the screw as it leaches out. Q. All right, sir. And you characterized this as what, now?
What does this -A. We nickname it a halo just because it almost always forms It's kind of a lighter colored, you can --
a perfect ring.
Savage - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 it's just a distinctive change in the finish. Q.
1317
And based upon your experience, background, training in
this area, if someone had recently removed, say, for example, removed paint or buffed the gun, cleaned the gun up, used some type of solvent and then painted it, would this halo effect that you've talked about around these cap screws appear if all the solvent hadn't been removed? A. Yes. If there was anything underneath the screws that
was applied during the refinishing process, it could leach out, and that's precisely what it looks like. Q. All right, sir. And so in your opinion would these halo
effects be consistent with the use of some form of solvent at some time on this firearm, sir? A. Q. At some time. All right, sir. Now, I believe you testified, sir --
well, let me show you what's already been introduced as Government's Exhibit 127, sir. see 127, sir? A. Q. I can. And I'm going to ask you a question, sir. When you took Let me back that out. Can you
this picture, were you looking for any types of depressions or anything in this firearm? A. This was -- this looks like a picture I took. You said
Government's. Q. I'm sorry. Yes.
Savage - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Yes.
1318
The reason I took this picture at this angle, you
can see approximately half of the serial number on the top edge, you can just start to see it. Q. A. Q. Up here (indicating)? Yes. And that was to look at the edge of the tube.
So you're looking right here right on top of the serial
number? A. Q. A. Yes. Let me put it up. Right there. Right up here?
And what I'm looking for is a nice clean
straight edge versus something that's dimpled or dented. Q. A. Q. All right. And it was nice and straight. Here's 128, and here's another photograph that you took.
What are we looking at here? A. We're looking at the inside of the machine gun receiver The hole in the center with the That thing It's the But the
from the rear looking forward.
little pointy thing, that's actually the barrel. pointing out to the side is actually the ejector. part that kicks the spent casing out of the gun.
purpose of the photograph is, looking down towards the bottom interior going forward, I don't see any bumps. didn't see a dent on the outside. Just like I
This is one-sixteenth-inch
thick steel and I was looking for distortions or dimples or dents in the tube. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Let me ask you, sir:
1319
After your examination looking for
dimples or dents in the tube, did you perform some type of an independent test of your own relating to serial numbers? A. Q. Yes, I did. In front of you, sir, there are two pipes or tubes, are
there not, sir? A. Q. A. Yes. Would you read the numbers off of them? All right. One is marked Defendant's Exhibit 110, and
the second one is marked Defendant's Exhibit 111. Q. Okay. And let me ask you: As far as thickness, size,
how do they compare to Government's Exhibit 3.16, the tube of that gun? A. Very close. During my examination I had, like I said,
measured the outside diameter of the tube, as well as the inside, and as well as the wall thickness, so that this tube here that we've got and had actually turned down so it would be close, absolutely as close as possible, so that when I did my test it would be as similar to the tube that makes up the firearm. Q. A. All right. And what is 110, sir? Is it a piece of tube?
It's a piece of mechanical tubing, seamless mechanical
tubing. Q. And how did you know what type of mechanical tubing to
obtain? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A.
1320
Mr. Erb said that he used seamless mechanical tubing in
the construction of his Sten tubes. Q. Did you perform some type of experiment on -MR. MARTIN: Your Honor, I'll move introduction of
Defendant's Exhibit 110 and 111. MR. KUMIEGA: your Honor. THE COURT: MR. MARTIN: THE COURT: (By Mr. Martin) Will be overruled. Will be admitted. To which we object for previous reasons,
May I approach briefly, your Honor? Yes. First, I am going to ask you, I'm going
to ask you to look at 110, sir, and tell us, did you perform some type of an experiment on Defendant's Exhibit No. 110? A. Q. A. I did. What did you do? Well, on 110, I actually stamped a sample number into it
and actually struck it twice to try to replicate what I saw on 3.16. Q. A. Q. A. Q. And did you use -- did you use some die, sir? Yes. Some die stamps with numbers. Sure did.
And do these appear to be those die stamps you used? Yes. Those are it.
And can you tell us by looking at those where they came
from, when they were manufactured, the die stamps? A. It looks that they were manufactured 7/12 of 2007, and it B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
1321
states on there "quarter-inch heavy duty figure stamp set." Q. A. Q. Are those the ones you used? Yes. Let me ask you, sir: Likewise, with Defendant's Exhibit
111, did you also conduct an experiment as relates to that exhibit? A. I did. 111, I only struck once, kind of moderate blow.
It didn't actually leave the entire figure. Q. All right. And after you did that, sir, did you notice
anything different -- here's Defendant's Exhibit 127, you testified you were looking at this area right here where the serial number is. Did you see anything different about
Government's Exhibit 3.16, the firearm, and your exhibit? A. Yes. When I had measured across the serial numbers and I
had taken some paint off, I was paying attention to the roundness and the squareness of the tube. When we replicate
the experiment, you can see the dimples or the dents, because if you strike an unsupported thin wall tube, if you're striking it hard enough to put in an impression with the character, you're striking it hard enough to dent it. It forms a dimple.
You can see on the single strike just a wave effect, and when you measure it, I believe it's about 20-thousandths of an inch in depression. And when you double strike it to simulate the
multiple strikes, it's now approximately 40-thousandths deep and you can really start to see the distortion of the dents. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
1322
If you look inside you can see the bumps, if you look down the tube. Q. And you can actually feel them with your finger. All right. And can you feel and see bumps or dents in
Government's Exhibit 3.16, sir? A. Not at all. As a matter of fact, it was almost precise.
I mean, it was within a thousandths or two. Q. And based on your training, background, and expertise,
sir, why would Government's Exhibit 3.16 not have the same dents as our experimental tubes? A. When you manufacture a tubular receiver, even a square
one, for that matter, when you stamp in a serial number on something that's thin-walled, if you don't have a mandrel -Q. A. What's a mandrel? A mandrel is a precision tool that goes into a tube that
fills up the void so it's supported inside so there is no hollow spaces, so that when you strike a die against it, it doesn't dent. Q. And you were saying you use a mandrel on Government's
Exhibit 3.16 because -- and how does that change how it compares to Defendant's 110 and 111? A. Well, these two were struck without a mandrel. A mandrel
is something primarily a manufacturer uses.
It's just not
something that is common knowledge, you wouldn't know unless you were striking serial numbers into stuff on a regular basis. As a matter of fact, I don't even believe the ATF brought it up B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 and 111? THE COURT: MR. MARTIN: the Sten? MR. KUMIEGA: Yes. in any of their reports. Q. A. Go ahead. I'm sorry.
1323
But when you look at this and it's so smooth and it
doesn't have the dimples in it, Mr. Erb testified that when he manufactured these he had a mandrel. And it would make sense,
that's what manufacturers would have, so that when you strike the number in, you're not dimpling and denting them, the tube, because a bolt has got to ride back and forth in this and function, and if it's got bumps in it, it's going to jam up and it just won't work. want it. I mean -MR. MARTIN: Your Honor, may I publish to the jury 110 And not only that, people aren't going to
If I just -- could I just follow-up with
Your Honor, to which we object until
I've had an opportunity to cross-examine Mr. Savage regarding it. THE COURT: MR. MARTIN: THE COURT: Kumiega's exhibits. Q. (By Mr. Martin) If I were to look at this, I will see Okay. Why don't we wait.
All right, sir. I think that's what we did on Mr.
what you're saying, some type of indentation, which is not B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 present in this picture, right? A. Q. That is correct?
1324
And if I were -- and I'm holding 110 in my hand, which
is, is that the double strike? A. Q. A. Q. It is. Okay. Yes. To look at it right on top of the, where the serial Is the same true for 111?
numbers are? A. Q. Yes. Okay. And in this particular case, if your finger is
long enough you can actually stick them in there and feel the indentation; is that right? A. Q. Yes. All right, sir. And likewise, sir, as relates to the
stamps, you heard Mr. Kong and Ms. Walbridge testify about -testify about firearms that were stamped before or after they had been coated, correct? A. Q. I believe it was Mr. Kong. Okay, sir. And you were present during his testimony,
were you not, sir? A. Q. Yes, I was. Okay. Are you familiar with some of the type firearms
that he used as examples that are -A. I am familiar with the examples he brought up. He also
Savage - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. just said no manufacturer does that. Q.
1325
Well, after he testified, did you conduct some further
examination of your own relating to the manufacture of firearms and stamping prior to and before coating? A. Well, it wasn't an examination, per se. I went to the
local gun shop and started to look at guns. Q. A. All right, sir. And cite how many different examples that showed that
they do indeed mark guns after they painted or coated regularly. MR. MARTIN: THE COURT: (By Mr. Martin) May I approach, your Honor? Yes. I'm going to show you what's been marked
for identification purposes as Defendant's Exhibits 313.1, 313.2, 313.3, 314.1, 315.1, and 315.2, and ask you, sir, if you are familiar with those photographs. A. Q. Yes, I am. I took them. And those particular photographs, sir,
All right, sir.
what do they depict? A. They depict a firearm with the serial number put in after
it was complete and the finish was applied. Q. A. And is that more than one firearm or multiple? There is actually three differing firearms here, a couple
of pictures each. Q. And are these firearms that you went out and found at B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. manufacturers? A. Q. They were offered for sale at H&H Gun Range. All right. MR. MARTIN: 313.1 through 315.2. MR. KUMIEGA: THE COURT: No objection, your Honor. Will be admitted. All right, sir. Your Honor, move for introduction of
1326
(By Mr. Martin)
I'm going to show you Can you see
what's been marked and introduced as 313.1, sir. that? A. Q. A. Q. Yes, I can. What is that?
That's an overall view of a Benelli shotgun, I believe. All right, sir. And 313.2. Is that a photograph of the
same one? A. Q. Yes, that's focused in on the receiver of the firearm. All right, sir. And I'm trying to -- let me back out
just a little bit.
What is the -- can you see this area right
here (indicating), sir? A. Q. Yes. That's the serial number.
And can you tell us, sir, from the photograph it may be
better, but can you tell, sir, from examination and in this photograph, was that firearm stamped before or after it was coated? A. After. And I think the next one is far more -- there we
Savage - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 go. Q. A. This is 113.3. Yeah.
1327
And it was clearly marked after the coating was
applied. Q. All right, sir. I'm also going to show you 114.2. Did
you take that photograph, sir? A. Q. A. Q. Yes, I did. And that is a -A rifle, and I believe that's also a Benelli. And here's another photograph. Is that of the same
rifle, sir? A. Q. A. Q. Yes. That's focused in on the receiver. And this area here, what is my finger on?
That's 114.1.
The serial number. What does that picture depict as relating to when the
serial number was placed -THE COURT: MR. MARTIN: THE COURT: Excuse me, Mr. Martin. I'm sorry, your Honor. Just for the record's sake, you've
introduced them as one number and you're referring to them as another number. So we need to make sure there is a
clarification, Ms. Youngberg informs me. MR. MARTIN: THE COURT: MR. MARTIN: I'm sorry, your Honor. I think they were introduced as 313. I meant to introduce them -- let me read
Savage - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. the numbers for the record. 113.1, 114, and 115.
1328 If I used 3
I was mistaken, and I apologize. THE COURT: MR. MARTIN: (By Mr. Martin) Okay. Your Honor, I apologize. I was on 115.1, I believe. And can you
see that, sir? A. Q. A. Q. Yes. And do you know what that is? That's an H&K rifle. All right, sir. In particular, there's a, some type of a
marking. A. Q.
Let me see if I can zoom in on that. That was applied after finish. Another example of the serial number being
Yeah.
All right.
applied after finish, sir? A. Q. Yes. All right, sir. Now, have you been involved in the
application, I believe you testified, of serial numbers before and after finish yourself, sir? A. Q. Yes. Okay. And based upon your training, background,
experience, and years of doing this, you've seen the government's exhibit, have you not, sir? A. Q. Yes. And you performed some of your own independent stamping
on painted and unpainted material, did you not, sir? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. Yes, I did.
1329
And what did your examination determine as to the impact
of stamping after a tube has been painted? A. If you stamp metal that's got a coating on it and
painted, you're crushing metal downward, it's pushing out sideways and it was, Mr. Kong testified it also wields up and it leaves, you can feel it. It's raised on the edges. Paint,
when it's stuck to something, then crushed, doesn't stick to it, it flakes off. As a matter of fact, I think the government
had a -- Mr. Kong had some photographs, I think it was Bates number 1702, and that's very typical of a stamp after finish has been applied. It's very bright, and the paint doesn't like
to stick to it because the metal that's underneath, remember the paint is just on top. When you crush what's underneath it,
think of a car wreck, if you smash into another car where it impacts something paint comes off. I mean, yeah, there could It's broken loose from
be transference, but it doesn't stick. how it's stuck to the metal.
And when -- he had the photo micrograph, or the microscopic photograph. You could clearly see the paint down
inside the groove, and the raised edges on the outside were bright. If you look real close at the serial number you can My experience of
see it, down inside it's still got paint.
working on firearms, that's -- it certainly appears to be mechanically removed either by rubbing, if a person wanted to B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q.
1330
try to clean up the serial number, a rounded punch, when I say, like a nail set, something blunted, and you sit there and just keep rubbing with a rag. And just the raised portions that
wield up when you stamp it is what wears off first, not the stuff down deep in the groove. I've never been able to get
paint to stick down in a groove after I've stamped metal because it's crushed, it either flakes up and sticks to the die when you pull the die back out because it's no longer stuck to the metal you're stamping, or it's just gone. It just doesn't
stick to it anymore because the metal has been disrupted, it's been crushed. MR. MARTIN: THE COURT: (By Mr. Martin) May I approach? Yes. You're referring to Mr. Kong's exhibits. Would you
I've got in my hand the government's exhibit book. show me which one? A. well. Q. Referring to what number? MR. MARTIN: I'm referring to this one here, 1706.
That shows it as
If we could see Government's Exhibit 9. Exhibit 9 but it's a photo, The bottom. Thank you.
I think it's the photo on page 9. page 9, photo number 9. Q. (By Mr. Martin)
I'm sorry.
Mr. Savage, is this the photograph you
were talking about, sir? A. Yes, it is. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Okay. And what points were you pointing out?
1331
If you look up here in this 6 character you'll see that
deep in the groove, because if you look at these, they are V-shaped, and when they stamp into a piece of metal they leave a V-shaped groove. Deep in the V, you did have paint, but if And best
you look on the edges, it's worn off, it's widened.
way to describe it is if you have a, kind of a cross-section and somebody's got a rounded implement and they are rubbing it trying to clean up, get the paint off, the only thing that you're going to take off is the paint on either edge of the cavity. And given how it's kind of spread out, I would guess
it was done with something that was either coated with a rag or a rag. It's been my experience because I've had to do it. And
it leaves the paint on the inside, but only scrubs the outside of the material off, because when you compare it to this photograph -- I don't know if you've got the number, Bates stamp 1702. Q. A. Go ahead and tell me. It's Mr. Kong's test where he had stamped on painted Same thing, my independent tests looked very similar.
metal.
You'll notice it's clean, it's bright, and it's bright all the way down into the groove. You can see little flecks of paint
that was broken loose during the stamping process, but you don't see uniform paint in the bottom of the groove. -- they don't look the same. It just
My tests did the same thing, and
Savage - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. this just looks like somebody's mechanically removed it. MR. MARTIN: Just a moment. I need to figure out
1332
which exhibit he was looking at. If we could see Exhibit 10, Bates 1891, if that helps. (By Mr. Martin) What portion of that are you referring
to, Mr. Savage? A. The upper portion of that page. Right there by the
numbers.
If you look right there, you don't see any paint at There is no
the bottom of the valley of that V-shaped groove. paint right there.
You see flecks of paint that have been
disrupted, broken off due to the crushing and the impact of the stamp, but you don't see any paint in the bottom of the groove. It doesn't look at all like the previous photograph. Q. Okay, sir. And let me ask you, sir: Based upon your
examinations, not only of a coated tube, but your testing on the Defendant's Exhibits 110 and 111, were you able to form an opinion as to whether or not the serial number that is depicted on Government's Exhibit 3.16 was placed on it before or after the manufacturer process, sir? A. Q. A. My opinion is before. And why is that, sir? Well, the reason is that it was obviously done with a
mandrel on the inside of the receiver tube, and Mr. Erb did say that he did use mandrels. And my experience with stamping
firearms, what you see is paint in the bottoms of the grooves B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Direct/Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. KUMIEGA: Q. and you don't get that when you stamp painted metal.
1333 There
might be particles of paint that hang on the edge, but when you crush metal and it's got paint on it, that paint is coming off. Q. And have you ever in your years of experience stamped or
placed a serial number on a tube without using a -- or forgetting to use a mandrel? A. Yes, sir. And I ended up destroying the receiver, then
attempting to repair it later. Q. A. Q. All right. I found that out through bitter experience. All right, sir. MR. MARTIN: THE COURT: Nothing further, your Honor. You may cross-examine. Thank you, your Honor. CROSS-EXAMINATION
MR. KUMIEGA:
Mr. Savage, before I go into your presentation today, I
would like to talk something about your background if I could. Now, you said you are the owner and operator of something called Historic Arms Limited; is that correct? A. Q. A. Q. A. Historic Arms, LLC. What does that stand for, please? Limit liability corporation. When did you start that concern, please? Formed the company in 2001, and I believe got my FFL in B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2002, if I remember correctly. Q. Okay.
1334
And when did you get your license to manufacture
firearms? A. That's my FFL. Is that what -- I believe that was the,
was 2002 is when I got my federal firearms license. Q. A. Q. That's both to manufacture and sell? Yes. Okay. So you've been doing this approximately six, eight
years, six years or something; is that correct? A. Q. A. As a manufacturer. Yes.
Have you ever -- do you have a license to deal firearms? I don't need one. As a manufacturer, an 07 can do
everything that a dealer can do. Q. Okay. So you've been doing this for you said six years;
is that correct? A. Q. As the licensee. Yes. Okay. Yes.
And prior to that, do you have any formal
education in manufacturing or firearms or gunsmithing? A. Formal -- I have no -- I did not go to school for No, I did not.
firearms manufacturing. Q. A. Q. A. Q.
Did you ever go to school for gunsmithing? No, sir. I actually learned by doing.
This is all self-taught; is that correct? And working underneath other individuals. Okay. And let me ask you this: How old are you, please?
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. I'm 41. Okay. And Historic Arms is the first time you had a
1335
business to manufacture firearms? A. Q. Yes, sir. Okay. Now, prior to that, I want to ask you about where Okay?
you got your experience to start manufacturing firearms. A. Q. Okay.
And my understanding, the first time you had a job with
firearms was something called The Cop Shop in Monroe, Michigan; is that correct? A. Yes. I learned how to do repairs and some refinishing
techniques, like parkerizing. Q. Parkerizing is basically to put something on the tube or
the firearm, coating; is that correct? A. Q. A. Yes. Phosphate.
How long did it take you to learn that? Not long. It's a very simple process. As I testified
before, my interest -- the first firearm I ever built was in eighth grade shop class. Q. A. I image you still have that, right? No. It caused quite a stir at the school, but, no, I
don't have it any longer. Q. I imagine. So you were living in Monroe, Michigan, and
you were working for the place called The Cop Shop; is that right? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Yeah. Yes, sir.
1336
From what years, please? I don't recall the years. I believe it was prior to '94,
'95, because that's when I moved to Columbus, Mississippi. Q. A. Q. A. Okay. And in 1994 and '95, how old are you, please?
I'm 41. No. How old are you back in 1994 and '95? You're asking me to do math
Twenty-six, 27, I believe.
on the fly here. Q. A. Q. Okay. So you say about 27 years old?
Well, approximately. Okay. And you also said in one of the hearings that you
worked as a machinist; is that correct? A. No, sir. I don't believe I ever told you I worked as a
machinist. Q. A. Something called Cisco Coil or something? No, sir. As a journeyman machine builder. I used to
build machines for a living. conversion systems.
Cisco, Incorporated built coil
They take the coil steel, straighten it,
chops it to size, feeds it into a die, the die comes down, you know, a door, a trunk, a hood of a car is punched out and then there's stackers that would stack it up. I learned how to
build machines and a gun is a relatively simple machine compared to some of the other things I've built. Q. So you're saying that the Sten in front of you is B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 basically a relatively simple machine? A. Q. Yes, sir. Okay.
1337
Like all machine guns are relatively simple; is
that right? A. Q. Oh, there are some that are far more complicated. Okay. So from that time you worked at The Cop Shop, and
that's a concern for selling firearms; is that correct? A. It was a retail establishment. I used to help out with
repairs, and I also that's where I got to learn some of the techniques for firearms repair. Q. A. Q. A. Q. So you were working there full-time or part-time? Part-time. While you were building machines; is that right? Yes, sir. And how many years did you worked at the Cop Shop in
Monroe, Michigan? A. A couple of years, approximately. I don't have the exact
dates in front of me.
It was just one of the first times I
actually was there inside the establishment and not just doing it in my basement. Q. Okay. So the reason I'm asking these questions, your
background is relatively light until you start working for Historic Arms. I just want to get your background here. Is
that not correct? A. What part? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q.
1338
You do not include your background prior to working for
Historic Arms? A. No, I didn't do an intensive background on that. I
wanted to keep it under two pages. Q. Okay. And let me ask you this: After you went from The
Cop Shop you went to something called The Lock Shop in Mississippi; is that correct? A. Q. A. Yes. Columbus, Mississippi called The Lock Shop.
What kind of store was that? It was firearms, as well as locksmithing, and we actually
worked on wheel lock, wheel lock, match lock, older guns, plus the newer ones, plus locksmithing. Again, a firearm is a very And if you can
relatively simple machine, and so is a lock.
work on the small mechanisms in a firearm, you can work on the small mechanisms in a lock. there, refinish them. Q. A. And what years, sir, Mr. Savage, were you there, please? I believe that would be '95 through about '97. That's So I used to repair firearms
just approximate. Q. Okay. And from '97 to when you started your company, to
2001, what job did you have? A. Fabrication, industrial fabricator. Just machine
building.
There's always a need for somebody there to either
refurbish a machine or to build a machine. Q. And when you were working in this refabrication arena, B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 were you working on firearms? A. Occasionally, on my own time, certainly.
1339
I was working
on my first semi-automatic design, the Bren Mark II semi-automatic. Q. But that was not part of your actual work experience, it
was your hobby; is that right? A. Q. Yes, sir. Yes, sir.
So you were working you said full-time, but you have a
hope, sideline for firearms; is that correct? A. Q. I think my wife would call it a passion, but, yes. Okay. And then it morphed into your actual business in
2001; is that correct? A. Q. Yes, sir. Now, my understanding to get a federal firearms license
to manufacture, you don't have to pass any specific test, all you have to do is pay the fee and you would get the right to manufacture guns; is that correct? A. Q. A. Well -Yes or no, sir. -- you do have to be qualified but, yes, essentially that There is no skill provision that you have to pass
is correct.
by the United States government. Q. Right. So I can go down tomorrow and get a license as
long as I pass the background check, and I can build a gun; is that correct? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. If you know how. Right.
1340
But I can -- but the government can let me do it,
all I need is just to pass the background test? A. Q. Sure. So you do not pass any, like I said, proficiency test
other than your own handiwork; is that correct? A. Well, if I want to eat, I've got to pass the proficiency
test of be able to have a salable product. Q. A. Okay. Then you started in 2001; is that correct? We formed a limited
That's when the company was formed.
liability corporation to try to isolate -- a bunch of litigation goes on and at that time there was a lots of lawsuits against manufacturers. My wife and I discussed it and
she wanted me -- we decided to form an LLC to make sure if somebody sued us we wouldn't lose our home and everything. Q. And you said -- on previous testimony you said your wife
basically keeps the books; is that correct? A. She does. She handles the financial end of my company.
Partners in life, partners in business. Q. Do you also have a partner that aids you in building the
firearms? A. Q. No, I don't. Okay. So when you started in 2001, basically you were
self-taught from working at The Lock Shop and The Cop Shop; is that correct? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. And other places, but essentially, yes. All right. What other places, please?
1341
Well, going to gun shows, talking with the owners, Where
letting them disassemble and examine, buying part sets.
the government allows part sets to come into the United States, you can't import the receiver of a machine gun, so what they do is they have to be destroyed to government specifications. Usually it's saw-cut or flame-cut, and you can examine and you can figure out how the mechanism works, how the trigger mechanism works because they don't have to destroy that, and try to figure out a way to work a disconnecter, to make sure it only fires one shot per function of the trigger, trying to figure out a way to make it fire from a closed bolt. not part of the regulation, the ATF does mandate a semi-automatic be closed-bolt in nature due to the fact that an open-bolt gun would be more apt to malfunction and go full-auto or be readily converted by somebody in the criminal world. Q. Now, during this period of time, starting in 2001/2002, Although
you purchased the shop and it's in Georgia; is that correct? A. Q. A. Q. That is correct, sir. Whereabouts, sir? In Franklin, Georgia. And do you have -- let me ask you this: Do you have any
government contracts to build machine guns? A. No, sir. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q.
1342
So you don't build machine guns, you basically refurbish
them; is that correct? A. No, that's incorrect. As a designer, I have designed a
couple of different machine guns seeking a military contract, either trying to fill a niche. My son is in the Army and he
had told me they had a problem with trying to get good fire power in the cab of one of the fuel trucks. So we had designed
a short squatty little unit with just a ridiculous rate of fire to be as much a psychological weapon as a weapon that would hit what you're aiming at. There's another one we call The Enforcer Carbine. It was
specifically designed for dynamic entries on drug houses, and we never got any interest. So we were always looking to
develop a new product, to fill a niche and help out law enforcement and the military. Q. My understanding is in the United States of America,
after May of 1986, you can't manufacture any more machine guns for civilian use; is that correct? A. Q. A. You're incorrect, sir. Can you tell us about that, please? A manufacturer can manufacture, a licensed manufacture
can manufacture a machine gun in seeking research and development, but I'm restricted as to who I can transfer it to. I can only transfer that firearm to law enforcement or military. What you're talking about is a change in ATF policy
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
1343
over the last six weeks or so, but I have manufactured several, they have been put on the NFRTR, and they also have been signed and returned to me, so they were made lawfully. restricted as to who I can transfer them to. Q. Okay. And you said that you have extensive work, you But I am
testified, in refurbishing machine guns; is that correct? A. Yes. I do refurbish machine guns and I have done it All of the civilian-owned machine guns were made They are all 22 years old, they've all You might find some what we call
extensively.
prior to May 19, 1986.
been shot several times.
hangar queens, some that had been put up, but for the most part, because of the nature of machine guns and the rate of fire, they beat themselves up and are forever having to be repaired, just like a hot rod would always have to be in the garage getting a tune-up. Q. Now, during when you were working for Historical Arms or
being Historical Arms you started work -- you made some documentaries; is that correct? A. Q. No, I didn't. Okay. That is incorrect. Did
There was some testimony about documentaries.
you aid or were you interviewed for certain documentaries? A. I was interviewed in one, and the first documentary was
actually a video of a field test which I participated, along with some members of the ATF. Q. All right. And the name of -- can you name the two
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 documentaries you were involved in, please? A. Sure.
1344
The first one, which is a documented error, was
called BATF Fails the Test. Q. A. Q. A. Q. A. Q. What year was that made, please? I believe 2003, 2004. And the second one? Was called The Gang. What year was that made, please? Right around 2004, 2005. What role, sir, did you have in both of these
documentaries? A. The first one, I was an expert, asked as an manufacturer Turned out to be a
to come and do an examination on a firearm.
FNFAL semi-automatic that had malfunctioned, it had a broken firing pin spring. The ATF had charged a man with illegal
possession of a machine gun, and right on tape the ATF claimed we didn't even take it apart. When we dismantled the gun, And the
found the broken part, found out why it had failed.
tape was used, in part, to try to urge the government to try to pass legislation to force the ATF to either video-document their testing exams, and to adopt a written testing policy, because at that time Firearms Technology Branch did not have a written testing procedure, it was devised on a case-by-case basis. Q. All right. And the purpose of your documentary or your
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 aid, your help in the documentary The Gang, what is that? A. The Gang?
1345
The Gang is an historic rundown on the ATF.
It does certainly focus on some mistakes and errors by the ATF. Q. Okay. Would it be fair to say that you testify
exclusively as an expert against ATF? A. Q. A. Pardon me? No. That would be absolutely incorrect, sir.
Can you explain that? Sure. I'm asked all the time to be an expert in federal
cases.
The most recent one I turned town was out of Nashville.
I was sent all the information by the defense counsel, I reviewed it, and quite frankly, the gentleman who possessed that firearm possessed a machine gun, and the ATF got it right. Q. A. Okay. And I refused to be part of the case because the guy was
absolutely violent. Q. Okay. And -- but the cases you've testified against, the
cases, criminal cases that you've testified in, were basically as an expert against the ATF experts; is that correct? A. Q. A. Q. I only -Yes or no, sir? Pardon me? You testified in other cases that I have here in your
resume, you testified as an expert for the defense; is that correct? A. Yes. Yes. There's been a mistake or the only time I
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 would testify is if I can document the mistake. Q. And you said you're part of some legislation to, or
1346
trying to get some legislation about documenting certain testing procedures that ATF is supposed to do; is that correct? A. I did help author a piece of legislation, HR 1791, called
The Fairness in Firearms Testing Act, and that is to get some basic procedures, and if we can't get basic procedures, then let's do it all on video and so everybody can see what happens. If rural cops can run with a dash cam, why can't a federal law enforcement agency video their testing exams. Q. Let me ask you this: Very simple.
Did you videotape your exam for
your presentation today? A. Q. A. Q. A. Q. No, I did not. Okay. But I'm not federal law enforcement. Okay. You are an expert; is that correct? I have qualified as an expert witness.
Yes, sir. Okay.
Now, the first matter that you talked about was
the examination of the Sten 3.16, and you said the degree of precision regarding the ejection port; is that correct? THE COURT: Mr. Kumiega, before we get into that, if
you're through with the background it would be a good breaking point. MR. KUMIEGA: THE COURT: Yes, sir.
We'll recess until 1:15, and I will remind
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q.
1347
you of the same admonitions that I've given you each time we've taken a break. So leave your notebooks there and we'll be in
recess until 1:15. All rise while the jury exits. (The jury exits the courtroom, after which the following was had in open court:) THE COURT: We're in recess.
(A recess was had, after which the following was had in open court:) THE COURT: Mr. Kumiega, you may continue. Thank you, your Honor. Mr. Savage, when you started Historical
MR. KUMIEGA: (By Mr. Kumiega)
Arms then the only formal -- well, first of all, you didn't have any formal background or training to start your company; is that correct? A. Q. A. Q. I don't understand. You are self-taught; is that right? Yes. Yes. Through experience. And did you have any people mentoring you when you
were working at The Cop Shop or The Lock Shop? A. Q. A. Q. Yes, actually. Were these master gunsmiths? No, sir. All right. How did you then learn, how are you able,
sir, to start your company as Historic Arms, please? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. it. Q.
1348
The same way Samuel Colt and John Browning did, by doing They didn't have any formal training either. Okay. So you just basically learned on your own; is that
correct? A. Q. Yes, sir. All right. And you said you went to college; is that
right? A. Q. I've had college courses, I don't have a college degree. Yes. And what college courses did you take? Anything to
help you in your business? A. Well, sure. Math and drafting, things of that nature.
Some chemistry, one semester of chemistry. Q. A. Q. A. Q. A. Q. All right. And what school did you go to?
Monroe County Community College. And did you get an associate's degree? I said I didn't have any degree. All right. How many hours did you earn, please? That was 20-some years ago.
I honestly don't recall. Okay. All right.
So you start in 2001, and you
basically, your expertise lies in manufacturing and designing firearms; is that correct? A. Q. That is correct. All right. And today you're bringing forensic, your
forensic expertise to the jury; is that right? A. Yes, sir. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. All right.
1349
And the forensic expertise is based on the
scientific method; is that correct? A. Q. A. Yes. What is the scientific method, please? The scientific method is you have a hypothesis or an
educated guess on what goes on, and you follow steps to verify that what you're doing is repeatable, and you allow somebody else to repeat it if necessary, but -Q. A. Q. Repeatability is then one of the keys; is that correct? It is. All right. Are there any other keys that you would have
to do as you advance forensic testimony today besides repeatability? A. You keep talking about forensic -- I'm not a forensic I'm a gunmaker and gun designer. Government's Exhibit 3.16 in front of you.
technician. Q. A. Q. A. Q. A. Okay. Yes.
You said this is a Sten Mark II SA; is that correct? No. No, that is not correct.
What kind of gun is that, please? It appears to be a Sten Mark II-S tube that was completed
with Sten Mark III components. Q. A. Q. Okay. So it has -- it's a mixture of --
It's a mixture. Okay. It's a hybrid?
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. Yes, sir. So it's not a pure Sten Mark II machine gun; is that
1350
correct? A. Q. That is correct. Okay. And would the -- the tube length of that machine
gun is more characteristic of a Mark III than a Sten Mark II; is that correct? A. Actually, that's incorrect. It's more characteristic of
what Mr. Erb described is he had some Sten Mark II tubes that he left extra length on so he could integrally suppress them at a later date. Q. A. When did he testify to that? During his testimony. He said that the government had
come and seized some tubes years after this particular tube had transferred to R.J. and then had passed through several hands. He talked about it during a compliance inspection. Q. III? A. Because it used -- the person who assembled the tube used All right. Why does it have characteristics of a Mark
Mark III components. Q. All right. And the tube is longer than it should be; is
that correct? A. Q. A. For a Mark II or a Mark III or a Mark II-S? For a Mark II. Yes, it is. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Okay. Let me ask you this:
1351
Your overall impression of
that firearm, what would it be, please? A. My overall impression of that firearm is that it's an Erb
Mark II-S tube built with Sten Mark III parts. Q. All right. Why did Mr. Kemmerer testify that looks like
a garage gun? A. Because of this opening here is far cruder than the rest
of the openings because of the poor welding during final assembly for this portion here and this portion there (indicating). It looks like the gun was built in two different
steps, once as tube and then completed by a different person at a later date with a different skill set. Q. A. Okay. Did you look at E682 and E685?
I saw them from the back of the room and I saw what you Do you have them available? I would be happy to
had up there. look. Q.
Sir, wouldn't it have been prudent to look at those
firearms before you make a decision regarding that Sten machine gun? A. Q. In what way? Well, how could you make a comparison? How do you know
that's an Erb II? A. I'm basing that on the pictures that were shown in the
courtroom, the testimony that I heard, and my observation here. Q. All right. Do you see those exhibits?
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. Yes. Is that 6 and 7? Let me see. All right. Yes, Exhibit 6.0 and Exhibit 7.0. Government's Exhibit No. 6. What serial
1352
number does that have, please? A. Q. A. Q. E682. All right. E685. All right. Would it be fair to say the serial numbers on And Government's Exhibit No. 7?
those two firearms are radically different from Government's Exhibit 3.16? A. Yes or no. I
They are all radically different from one another.
haven't seen any consistency in any of the Erb guns shown. Q. Are you telling the jury that Government's Exhibits 6 and
7 are not consistent in serial number quality? A. Serial number quality? Well, they are marked in
different locations, and one appears to be used -- the Es are definitely different. not consistent. Q. A. Q. A. No. They used different stamps. They are
They are not consistent? No, they are not. And how do you know that? Sure. You can just tell by looking? One uses an E that
I would be happy to show you.
is straight, and the other uses an English type of E that is hooked and bending towards the center. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. KUMIEGA: THE COURT: THE WITNESS:
1353
Your Honor, may I approach the witness? Yes. Right here, take a look at the E, how it It's
downturns toward the center, and then look at E in there. just straight. Q. (By Mr. Kumiega) You don't see the upturn in
Government's Exhibit No. 7? A. No. Actually, there's a character in the center. There
is no upturn. Q. How would you characterize the E683 in Government's
Exhibit 3.16? A. Q. A. Q. A. Different size and different location. All right. And how are they different, please? To font? Size?
With what regard? Everything, sir.
I haven't seen a consistently marked Erb gun since I've They are all marked with different sizes, different
been here.
fonts, and in different places. Q. You're not testifying that you're an expert in Erb guns; Yes or no.
is that correct? A. No, sir.
I'm testifying about my observations since I've
been here. Q. All right. Now, you testified in those tubes in front of
you -A. Yes. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q.
1354
-- that you put serial numbers on those tubes; is that
correct? A. Q. A. Q. A. Q. A. Q. That is correct. And how did you do that, please? I used a hammer and these stamps. Okay. And where did you do that at, please?
I did that over at Mr. Friesen's law firm. How long ago, please? Last Tuesday, I believe. All right. And the purpose of that experiment was to do
what, please? A. To see whether or not the tube of approximate size and
shape deformed or dented when you struck it with a character. Q. All right. Are those two tubes, your exhibits, are they
from the same lot or from the same pipe or same tube? A. Q. A. Yes. All right. Where did you buy those at, please? I
I made a couple of calls, and I gave the dimensions.
couldn't even tell you the name of the company. Q. Okay. And how did you come up with a similar length for
Government's Exhibit 3.16, please, the same type of tube? A. Based on Mr. Erb's testimony. He said he used seamless
mechanical tubing, and that's what I sought out was seamless mechanical tubing of the same size and dimension. Q. And did you use some type of, I guess, thickness B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
1355
instrument to determine hardness to make sure that the tubing is similar to Government's Exhibit 3.16? A. Well, a device to measure thickness doesn't measure You would need a Rockwell C scale, or there's
hardness.
several other scales that measure hardness, but hardness wasn't an issue in any of the government's reports, and I didn't take issue at it either. mild steel. Q. And you performed some scientific tests on Government's Seamless mechanical tubing is typically
Exhibit 3.16; is that correct? A. Q. 3.16? A. I measured the outside diameter, the inside diameter, the When you say "scientific tests" I don't follow. Okay. What tests did you perform on Government's Exhibit
thickness, took photographs, disassembled. Q. A. Q. A. Q. Anything else? I may have missed a thing or two. Okay. Yes. You said you used a micrometer? A measuring instrument. And you were trying to measure for what
All right.
purpose, please? A. Q. Size and dimension. All right. And the size and dimension of that tube is
similar to your exhibits? A. Yes. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Q. A. Q. All right. Similar.
1356
Now, during the process, sir, you made a scratch on the
serial number; is that correct? A. Q. A. Q. A. Q. A. Q. A. Q. A. Yeah. The paint was brittle.
All right. Which also leads me to believe that if you were to -Let me finish. I'm sorry. You left a scratch on it; is that correct? Yes, I did scratch it during measurement. And how -- the length of that scratch, how long is it? There are two scratches here. The scratch you did, sir. There's two scratches here that I made that the
approximate length is near a quarter of an inch. Q. All right. MR. KUMIEGA: THE COURT: THE WITNESS: (By Mr. Kumiega) Your Honor, may I approach?
You may approach. Here and here (indicating). Did you make that scratch for any
scientific purposes? A. Q. A. No. I made that scratch during my measurement.
It was an accident? Yes, sir. It was entity incidental.
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q.
1357
And the scratch goes, stops, and another scratch occurs;
is that correct? A. Q. Yes. As I was moving my micrometer. Could you not see you made a scratch from the
Right.
first time you left a marking? A. I was watching the readout of the micrometer to see if
there was any deviation in the diameter of the tube as I measured across the face of the serial number. Q. Does that concern you, sir, that you would make a scratch
over the most important part of the government's exhibit? A. Of course it concerns me, but it was not done But it did show me how brittle the paint was
intentionally.
and doesn't support stamping and painting to be able to stay in the grooves of the stamp mark. Q. Let's talk about that. The testimony is that Mr. Friesen
refurbished the gun in the year 2000; is that correct? A. Q. I believe that was his testimony. Right. The gun is approximately, with that paint on it,
approximately eight years old; is that correct? A. Q. By testimony, approximately. Yes.
Would it be fair to say that the wear and tear on
Government's Exhibit 3.16 is pretty extreme? A. That's relative, but, yes, there is wear and tear on that
firearm. Q. And some of the testimony from Mr. Friesen is that he B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
1358
hardly used that firearm at all, doesn't remember shooting it and used it as a prop. A. Q. Yes, I do. All right. How do you account for such wear and tear on Do you remember that testimony?
that gun if the gun was refurbished, supposedly, according to his testimony in the year 2000, some eight years ago? A. Well, according to your photographs this gun looked a
whole lot better when you guys first got it, and I've seen the condition of this gun degrade over the last two days, or last two weeks. Q. All right. You're not answering the question, sir. The
gun was refurbished in the year 2000, approximately? A. Q. A. Q. used? A. As I stated, the photographs that were taken when the gun Uh-huh. It looks like it was well worn; is that correct? Yes, it does. How do you explain that then if the gun was hardly ever
was taken into custody was in a far better shape than what the gun looks like now, and it appears that the ATF has been rather abusive with it. Q. mark? A. Sure, or throwing it in the safe or dropping it or So just like you making the mistake with the scratch
banging it against the table. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
1359
Now, going back to your supposed test, you said
that in your tubes you took them outside Friesen's law office. Was that on the porch? A. Q. A. Q. It was. And did anybody watch you do this? No, sir. All right. And you put serial numbers on that tube; is
that correct? A. Yes. I actually set a piece of steel down because I
didn't want to bounce it against wood to use as an anvil, and I just stamped the tubes. Q. A. Q. All right. That is correct.
And how can we replicate that test, please?
If you like, I can do it for you right here right now. I don't want to know -- how can Mr. Howard, Mr. Kong,
excuse me, how would he be able to replicate the test if you never advanced any reports on this, please? A. He could buy tubing of the same approximate diameter and
size, get a new set of dies, and strike his own set of tubes. Q. Let me ask you this: What force did you use to put those
serial numbers on? A. I believe I used a 12-ounce hammer and I tried to give I
just enough of a strike to leave most of the impression.
think it's -- the 111, you'll see that you didn't even get a complete character strike. saw in E683. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603 I was trying to replicate what I
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Okay. You used a hammer.
1360
How was the government able to
replicate your use of force on the serial numbers? A. Q. They can swing a hammer. How can we replicate your use of force on how to put the
serial number on the tube? A. Q. They can swing a hammer. Mr. Savage, you're not answering the question. How much
force did you use, sir, to put serial numbers on that tube? One of pound of pressure? Three pounds of pressure? Can you
explain that to the jury, please? A. Sure. I've put lots of serial numbers in and I know the
approximate amount of swing in a hammer to leave an impression of a stamp. You're asking me to quantify it in foot pounds,
I'm sorry, I had no way of measuring it. Q. All right. Isn't that the whole purpose of a scientific Yes or no, sir.
method to replicate your test? A. Q. I misunderstand you.
How do we replicate your test, sir, if you don't even
know how much force you put on those tubes? A. Q. A. You can swing a hammer. Sir, how do we know how hard you swang that hammer? You could swing the same size and weight hammer, compare
my test with your test, and when you reach the appropriate depth, then you would know you were hitting it with the proper amount of force. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Again, have you looked at Government's Exhibit 3.16,
1361
those serial numbers? A. Q. Yes, I have. Doesn't the depth look a little bit different from the
depth in your test? A. This is a pretty close approximation. Remember, I didn't
have the access of this test, or of this particular firearm when I did this test. I had to use photographs because you I could not do a
guys maintained custody of the firearm.
side-by-side comparison with them right next to one another. Q. Isn't it true, sir, you never requested that from the
government; is that correct? A. Q. That is correct. All right. And you have never advanced any reports about
your scientific methods, is that correct, regarding those very tests? A. Q. A. Q. Regarding the tubes, that is correct. All right. Why not?
Time constraints. All right. How long did it take you to do that test,
please? A. Q. A. Q. About a half hour. And that was last week? That was last Tuesday, I believe. Okay. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. Before court.
1362
Now, you used no mandrel inside the -- your tubes; is
that correct? A. Q. That is correct. Okay. And a mandrel you said is a precision instrument;
is that correct? A. It goes in and it's got to fit tight so that tube doesn't
distort when you apply a serial number. Q. Basically, it's just a sleeve that fits, some type of
steel sleeve that fits inside the tube; is that correct? A. It's not a sleeve, it's usually solid. It can be made
out of aluminum, can be made out of brass.it's just to prevent tube deformation. Q. Okay. And is it possible to strike the tube in such a
way to leave a slight scratch instead of deforming it if you wanted to put a serial number on it? A. Are we talking about applying a serial number or a
scratch? Q. A. Well, both. Well, of course, it's possible to scratch something
without striking a serial number and without a mandrel, but if the material is soft enough to have tool still leave an impression, and then it's soft enough to deform, Unless it's backed up with something. Q. Right. But again, you're comparing apples and oranges
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 because you don't know what the hardness or strength
1363
Government's Exhibit 3.16 compared to your exhibits is; is that correct? A. I know what Mr. Erb says, but if you want to talk about
apples and oranges, you guys did flat plates, I did round tube. That sounds more like apples to oranges than tubes to tubes. Q. A. What are you talking about? When your people did your tests they used flat plate. I
used a round tube. Q. A. Q. A. All right. Yes. Okay. Yes. They would have gotten an entirely different -You're talking about the paint inside the --
they would have discovered this if they had used tubes instead of flat plates. Q. Okay. That's apples and oranges.
So is it fair to say, sir, that the government
cannot replicate your tests? A. Q. No, that's not fair to say. Okay. We have to use a hammer. What kind of hammer did
you use, how many -- what did it weigh? A. Would you like to see it I believe it's 12-ounce I have it in my bag.
ball-peen. Q. A. Q.
Did you record how you struck the tube? No, I did not. And again, you don't know how much force you used; is B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that correct? A. Through experience I know how much force it takes to If you look right here
1364
apply an impressed serial number.
(indicating), it is very similar to what you see there because you didn't get a complete character impression. close approximation. Q. All right. Now, this test that you did, amongst others, It is a very
part of the scientific method to replicate the test you have to have some kind of peer review where people can actually duplicate the test; is that correct? A. You don't have to, but it is certainly, if -- part of the
scientific method is to be able to replicate results. Q. All right. And did you have some peer review regarding
this test? A. Q. A. Q. No, sir. You did this on your own? Yes, sir. Okay. Now, you struck Government's Exhibit, excuse me,
Defendant's Exhibit 110 twice, and then you struck your exhibit, Defendant's Exhibit 111, once; is that right? A. Q. Yes, sir. All right. And do you know how many multiple strikes are
on Government's Exhibit 3.16? A. According to the microscopic photo, it looked like I stopped at two just due to the fact the tube that
several.
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
1365
the deviation -- the tube was denting so bad it became obvious to me that had to have been done with a mandrel and I stopped, because every time I struck the tube it was denting back 20-thousandths of an inch. Q. Would you look at Government's Exhibit No. 9, photograph This is contained in 3.16 the Sten Mark III, or
8, please.
characters of the Sten Mark III; is that correct? A. Q. Yes, sir. Would it be fair to say there are more than two types of
stamps, impressions on that? A. Q. A. Q. Oh, yes, sir. There's multiple stamped impressions; is that correct? Yes, sir. Okay. And then it says here, "Arrows indicates presence
of scribing prior to stamping"; is that correct? A. Q. That's what it says. All right. Do you see scribing in Government's Exhibit
682 and 685? A. Are we talking on serial numbers or over the whole length
of the receiver tube? Q. A. The serial number, please. Actually, it looks like it may very well be a scribe or a
stamp over the E. Q. A. Uh-huh. And then there's a Y behind that. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. A. Q. Uh-huh.
1366
I do not see any -- well, yes, I do see some scratches. Let's look at the other exhibit, No. 7 or 6, please. No, I do not. Okay. Now, the test that you did you said that you
painted a surface, then you stamped on it; is that correct? A. That is correct. I tried to replicate what was in the
report that was supplied during discovery. Q. And you're saying that if you have a flat surface or a
surface and there's paint on it, if you put a stamp on it it's not going to leave any paint inside the grooves of the serial number; is that correct? A. I didn't say any paint. I'm saying, when the crushed
metal gets distorted underneath, the paint comes loose. Q. A. Okay. When you whack your car door into something, does paint There is paint removed
come off the edge of your car door? when you die-stamp painted metal.
I've done it enough,
typically the centers and just like your photographs that were shown to me earlier, my results were pretty much the same, but it doesn't look like anything that exhibit you just showed on the screen. Q. Let me ask you this did: You use a microscope, sir, to Yes or no.
see if there was any paint inside the groove? A. Which groove?
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Of the serial number of your experiment The serial number of the gun?
1367
I didn't stamp the serial
number. plate? Q. A.
Are you talking about my test that I did on flat
Yes. I used a magnifying glass. There was small flecks, but
they weren't attached to anything. Q. So you're saying Mr. Kong is totally wrong on his
experiment? A. No. I don't doubt his science, I just doubt his
conclusion. Q. A. All right. And what's wrong with his conclusion, please?
His conclusion is that this had to have been painted and
then stamped, and I disagree with his conclusion. Q. Okay. You said you brought the paint -- do you have the
flat tests with you, is that correct, the actual black stamps? A. Q. A. Do we have them here? I don't know. This is your exhibit. Didn't you look at them
What do you mean you don't know?
earlier? Q. A. Q. Do you have them with you? I don't, but they are here. Let me ask you this: Have you had any experts or someone
else also look at your results? A. No, I did not. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Q. A. Why not? I didn't see any need.
1368
I didn't know it was going to be
an issue. Q. You performed a test and you didn't know it was going to
be an issue, sir? A. Q. A. Q. Well, they didn't show me their plates either. Did you ask for them? Actually, I do believe defense counsel did. Did he really? MR. MARTIN: THE COURT: And did you see -Your Honor, I'm going to object. That will be sustained. All right. The solvents, you said that
(By Mr. Kumiega)
you detected presence of solvents in Government's Exhibit 3.16; is that correct? A. That's incorrect. I didn't say I detected presence, I
said that I had noticed halos, which typically happen when you use solvent. Q. And are there any other explanations for the presence of
halos? A. Oil could be one, but the problem is, underneath the
socket-head cap screws, when I backed them off and looked, they were rusty. If they were oil, oil would have stayed under Typically,
there and the metal would have stayed shiny.
solvents, because it strips all of the oil off, allows it to rust. And there was a lot of rust underneath the heads of the
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 screws. Q.
1369
Is it possible that the firearm could have used something
commonly known your business as Loctite and it leached? A. Q. A. Q. A. Q. A. It could have. All right. But the -First of all, what is Loctite, please? It's used to lock the threads on screws. All right. It's typically applied as a liquid to the threads of a
screw, you run it in, and you would want to -- if you're assembling a gun with any screws you would certainly not want the screws to back out while you're shooting the gun, that could be disastrous. There was what looked like thread lock or
some type, whether it was Loctite brand or not, because it wasn't green, blue or red, which is typically what Loctite is, this was a whitish powder, but the threads were rather tight. Mr. Friesen testified I think you said 2002 is when he refinished it. The Loctite powder was pretty degraded, Would it leach out years If it stayed as a liquid,
probably put in some years ago. later?
No, because it turns hard.
then the screws wouldn't lock. Q. All right. You're not telling the Court how old that
firearm is, are you? A. I have no way of knowing that, sir. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Okay. Now, you said that the magazine well of
1370
Government's Exhibit 3.16 was very crudely made; is that correct? A. No. I said the magazine well opening was crudely made.
The magazine well was probably made in Great Britain 60-plus years ago, but the opening was crudely made. Q. All right. Yes.
When you say "crudely made" can you tell the How was it made, please?
jury what you mean by that? A.
It looks like it was cut this way (demonstrating) and
then cut this way, and then cut down the center, and then peeled back either with a pair of plyers or with heat, I can't really tell, and then just slipped over the mag well, and then crudely welded on. But when you compare it to the rest of the
openings that are machined into it, which are fairly precise, this is the only opening that was crudely made on the firearm. Q. So somebody actually pinched back the tube, right, and
then -- for the -- for the magazine well to be inserted; is that correct? A. That is correct. It was not machined out like the rest
of the gun. Q. Okay. And that would make it very different from the two
firearms in front of you; is that correct? A. It would -- it would depend on the choice of the person
doing the final assembly. Q. No, the point is, it's very different from the two B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 firearms in front of you; is that correct? A. Q. Oh, yes, sir. Right.
1371
Because those are machined and that's pinched
back; is that correct? A. Q. That is correct. All right. What are the differences that you see between
Government's Exhibit 6 and 7 and Government's Exhibit 3.16, please? A. Q. A. Is there something specific you're wanting? You're the expert, you tell me, please. Okay. This appears to be made from a tube a little bit
longer in length. Q. A. Q. A. And is more characteristic of a Mark III, correct? Or Mark II-S. Right. It all depends on what the person decided to do when they
did the final assembly. Q. A. All right. What else, please?
This is more of a Mark II as far as not being a hybrid.
It does, typically has a pivoting mag well, everything is nice and machined, there is a barrel bushing welding in front that allows the threaded barrel nut for the removal of the barrel. And actually the machining of these and the cocking slot area look to be very close. But this one, the two other
government's exhibits are made from a true Mark II part set B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
1372
when the tube was completed, where this one appears to be made with a Mark III part set. interchangeable. The parts are somewhat
I would suppose that the person who received
this tube realized that it was made of a different spec than a standard Mark II, found it far easier to complete it with a Mark III part set. Q. You were present during the testimony of everybody in the
last six days; is that correct? A. Q. A. that. Q. Erb? A. Q. Yes. Present during the testimony of Mr. Kemmerer from All right. You were present during the testimony of Mr. No, not everyone. Who did you miss? Some of Mr. Friesen's testimony and some people after
Florida? A. Q. Yes. Present during the testimony of Mr. Davenport from
Alabama? A. Q. Yes. Both Mr. Davenport and Mr. Kemmerer disparaged that gun
that we introduced saying it was a garage gun; is that correct? A. Q. I believe one of them termed it as a garage gun. All right. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. it. Q. A. All right.
1373
But I didn't hear anybody say they made it or didn't make
They said they weren't sure because they received tubes
in varying degrees of completion. Q. Didn't Mr. Kemmerer testify he would have never passed on
a gun like that because he never saw a gun like that before? A. Q. That would be easy to say now. He did say that. He did say that.
And Mr. Erb said that was not his work;
is that correct? A. Mr. Erb also said that other one wasn't his work that we
know is. Q. A. Which one -The one that only had a cocking slot, which was shown up
on the screen that -Q. A. That's just a photograph; is that correct? But from a photograph I can see that the machining wasn't
complete, and he testified he machined all the openings in his guns before he sold them and that obviously -Q. And Mr. Savage, do you remember the serial number on that
cocking device or that firearm? A. Q. I do not. In fact, would it be a fair representation it looks like
-- more like Government's Exhibit 6 and 7 than Government's Exhibit 3.16? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. That would be a fair representation. All right.
1374
But there were others that looked almost nearly identical
to those markings. Q. A. Oh, really? Which ones were those, please? I
The one that was marked inside of the trigger housing.
don't recall the serial number by heart. Q. Okay. Now, you testified that, in a car wreck, paint
cannot be transferred because it would flake off; is that correct? A. Q. A. No, I didn't say that. What did you say, please? I said if you ding your car, if you've ever dented your If I were to stamp your car with this, But again, now we're getting to
car, paint comes off.
the paint would come off. extremes. Q.
Yes, paint can transfer in an automobile accident. And you can find that by using a microscope;
All right.
is that correct? A. Q. A. Q. Sometimes even by the naked eye. Right. But especially by a microscope; is that correct?
I don't know. Now, the type of tools you used to conduct these
scientific experiments were a hammer, a micrometer, and a magnifying glass; is that correct? A. That, and then punches, but, yes, essentially. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. Any other sophisticated devices you used? No, sir. Okay. Not that I'm aware of.
1375
Now, you're being paid for your testimony today;
is that correct? A. Q. Yes, sir. While I'm here my business is at a standstill.
Can you tell the jury how much you're getting paid for
your testimony? A. Q. A. Q. $1,500 a day. Plus expenses? Yes. All right. And how much has your meter been running
since you came to Oklahoma City? A. Q. A. Q. A. How many days have I been present in court? I don't know. You don't? No. Approximate, if I was going to do mental arithmetic here,
maybe it's cost a total of $16,000 while I've been out here the last two weeks, is what I charged counsel, plus or minus. Q. Mr. Savage, it's possible to put a serial number on a
firearm if you strike it slightly or lightly; is that correct? A. Is it possible to put a serial number on a firearm if you
strike it lightly? Q. A. Yes. Certainly. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Okay. You might not be able to read it.
1376
You might not get a
complete character impression. Q. All right.
But anything is possible.
So if you can do that with just the right
amount of force, it still would be a valid serial number; is that correct? A. Q. The federal law for the -I'm talking about the firearm that's in front of you
today. A. You said valid serial number, means it has to be a
minimum of three-thousandths in depth. Q. A. Q. How long ago did that come into operation? Approximately 2004. But the point is, if you strike a firearm lightly enough,
depending on the hardness of the tube, it's possible to put a serial number on there without making, creating a dimple; is that correct? A. If the metal is soft enough to take an impression from
tool steel, if you don't put a mandrel behind it or back it up with something, it's going to deviate. It's just a matter of
quantifying that or measuring how deep is the dent going to be. Q. All right. Speaking of quantifying it, did you ever
quantify the dimple or deviation in Defendant's Exhibit 111 and -- 110 and 111? A. Yes, I did. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Q. A. Q. A. How did you do that? With a micrometer. All right. And what is the deviation?
1377
The dent was approximately 20, 25-thousandths in this,
and the dent in the one that I struck twice was approximately 40 or 42-thousandths, if I remember. 20-thousandths of an inch. Q. All right. However, you never put that in any report; is But approximately
that correct? A. No, sir. THE COURT: Excuse me, Mr. Kumiega. I don't know
whether he said no, sir, that's not correct, or no, sir, he never put it in a report. THE WITNESS: (By Mr. Kumiega) No, I never put it in a report. All right. So your most important
test, Mr. Savage, is being conducted at the back of Mr. Friesen's law office on the porch with those tubes wielding a hammer? A. I don't know if that's -- you're calling it my most I think that it's -- what's most important is
important test.
all of my observations. Q. Let's talk about the other observations. What other
observations are important to you? A. The photograph that you made under the microscope, and
comparing it to the other photograph of a stamped number over B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 paint done by the government. it's -- they look different. Q. Let me ask you this:
1378
They do not look similar, and
You testified that under the halo,
or the halo by the rivets is an indication to you there was solvent used; is that correct? A. Yes. Something that disrupted the paint and it's rusty
underneath. Q. All right. And you also testified there could be
something called Loctite, is that right, you're not sure? A. Q. A. I'm not sure. Okay. I've never experienced rust with Loctite. It's usually a
plastic and seal, but there was rust underneath, so I really doubt that it was Loctite. Q. Did you see any indication of solvent on the serial
number in question, E683? A. No, sir. I didn't have any way -- I didn't run a I couldn't tell you if there was solvent used
chemical test. on that or not. Q.
It would have been important for you to do that; is that
correct? A. Q. Well, not really. Really? You were present during the testimony of Sarah
Walbridge? A. Yes. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q.
1379
She testified there was no known solvent used on E683; is
that correct? A. Q. A. She based that on -Yes or no. I'm sorry. Yes or no. Ask that again and I'll try to give you a yes
or no, if I can. Q. A. Q. Mr. Savage -Yes, sir. -- you found no other indication of solvents used by the
serial numbers E683 on Government's Exhibit 3.16? A. Q. I did not test it for solvents. Okay. You did not test it for solvents. But you
observed and now you think you could be wrong that the halo effect was the result of a solvent? MR. MARTIN: Your Honor, I object. I don't think he
said he thinks he now could be wrong. THE COURT: Objection will be overruled. I don't believe it was Loctite causing
THE WITNESS: the halos. Q. A. No.
(By Mr. Kumiega)
You're not sure anymore? I've never
I didn't say -- I didn't say I wasn't sure.
seen, through my experience of building guns, Loctite ever cause rust, ever. There was rust underneath the screw caps. I
do not believe that it was caused by Loctite, I believe it was caused by a solvent of some sort leaching out from underneath B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 of the caps. Q. A. Solvent is basically acetone? Acetone, methyl ethyl ketone.
1380
There's some called xylene
that don't evaporate as fast. solvent was used.
I don't know what type of
I do know that the gun was refinished and
the halos, in my experience when I build guns, are caused by stuff leaching out from underneath. Loctite becomes a solvent It doesn't leach out
-- becomes a solid when a thread locks. once it was set. Q. A. Q. Solvent evaporates, doesn't it? Yes, sir. All right. Solvent evaporates.
Now, you said you never tested around the
serial number; is that correct? A. Q. That is correct. You heard Mr. Friesen's testimony that he painted over
the serial number; is that correct? A. Q. That is correct. And then later on used a solvent to make it appear; is
that correct? A. I believe he said that he had scrubbed at it with
something on the -- with a rag on the end with a solvent he didn't know. Q. Right. So you never tested for that solvent; is that
correct? A. No, sir, I did not. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
1381
Is it fair to say, sir, that the serial number is
really the DNA of the firearm? A. DNA may be a bit overblown, but that's how you're able to
track, tracking a firearm is done by the serial number and the manufacturer's mark and, you know, could be several other things. But for lack of a better term, sure, I'll go along
with that. Q. Okay. And in your work it would be, you would
scrupulously avoid covering up a serial number in your job; is that correct? A. Q. A. Sure. Q. But you would make sure somebody is able to see them; is When you say scrupulously avoid covering up how? You would not cover up a serial number, would you? Not intentionally. Would I paint them or coat them?
that correct? A. Yes. There's actually been some of the times where I've
had to restore a firearm where, indeed, the serial number was covered up with paint and you're trying to uncover it and remove the paint from it. Q. Right. But you did not do one knowingly; is that
correct? A.
You would not cover up a serial number knowingly? Would I paint one or would
You keep saying "covered up."
I cover it up with what? Q. Would you paint over a serial number? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. I do every day. So nobody can see it? No. I didn't say that.
1382
I said -- you asked me did I Every gun I build. Yes.
ever paint a serial number. Q.
You paint over it but you still can see it; is that
correct? A. Q. A. Yes. Okay. Yes. The serial number needs to be visible? But it only needs to be three-thousandths of an
inch deep. Q. I understand. But let me ask you this: The serial
number needs to be visible; is that correct? A. Q. Yes. And it needs to be placed on the tube of the firearm; is
that correct? A. Q. Depending if it's a tubular receiver, yes. Okay. Now, you also testified that you took some firearm
pictures at H&H Gun Range down here at I-40 and, is it Meridian, I think? A. Q. Yes, sir. It was H&H Gun Range right off I-40.
And the purpose of your testimony was to say that guns
are not always stamped first, they can be painted, then stamped; is that correct? A. The serial number can be applied after the firearm has Yes.
gone through the coating or painting process.
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Would it be fair to say that H -- the -- so you took
1383
pictures of a Benelli type firearm; is that correct? A. Q. A. Q. A. Q. A. Q. Yes, that's correct. And that's a high-dollar shotgun; is that correct? About 1,600 bucks. And H&K machine gun, or H&K assault weapon? An H&K rifle. A rifle? An assault weapon, I don't believe it was full auto. And you don't know what process was used; is that
correct? A. No, sir. I examined approximately 20 firearms that day.
Everything down from the inexpensive Taurus on up to the high-dollar H&Ks, and there were several that the serial number was applied after the coating was applied to the firearm. Q. Would it be fair -- so you don't know if they use a laser
process or a certain type of mold or anything radically different from the way Erb put his stamps on his gun back in 1986? A. Q. A. Actually, I saw several different processes. All right. And what processes did you see?
One was done with a dot matrix engraver, which is like a
needle gun that goes back and forth, like this, (demonstrating) almost like a tattoo, so it's a series of dots that engraves the serial number, maybe some other information. I saw one
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that was definitely engraved.
1384
There's a couple that possibly
have been lasered, I didn't have a way of determining it, and they weren't about to let me tear apart a bunch of $1,600 guns to get a better look. So I just documented what I saw that
definitely these were applied after the coating. Q. A. Q. A. Q. How do you document that? With photographs. Again, no written reports? No, sir. Mr. Savage, you testified that you were part of a, I
guess a documentary about something called The Gang; is that correct? A. Q. That was the name of the documentary. Yes.
And you participated in the, I guess the making of that
documentary; is that correct? A. Q. No. All right. What was your relationship to The Gang about
The Gang? A. Q. A. Q. A. Q. A. I was interviewed. All right. Yes, I was. And how long is that documentary, please? I don't recall. Well, did you get paid for it? No, I didn't. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603 So you were in that documentary?
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. All right. Yes. All right. And what did you say in the documentary, So you contributed your time to it?
1385
please? A. My interview had to do with the lack of testing
standards, written testing standards with Firearms Technology Branch. And an individual who no longer works at ATF who had
decided to punish me for coming to federal court -Q. A. Q. Who is that? Sterling Nixon. So you made the documentary because you have an axe to
grind against another person in ATF? A. No, sir. It had nothing to do with that. It had to do
with trying to raise awareness in some of the issues ATF was having. I had addressed it and ATF management, offered to sit
and talk with them, offer suggestions, and they had refused and I was approached if I wanted to be interviewed for this documentary, and I agreed. Q. A. Q. How many minutes were you on in that documentary, please? Maybe four or five minutes total. All right. Not very long.
Do you remember the -- have you seen the
internet flyer from JF -- excuse me, JPFO Productions? A. Q. Possibly. All right. MR. KUMIEGA: May I approach, your Honor? I mean --
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. A. Q. A. Q. A. Q. A. Q. THE COURT: You may approach. I believe I've seen it before. All right.
1386
THE WITNESS: (By Mr. Kumiega)
And what is that, please?
You just said it was a flyer for the documentary. And it tells about the documentary; is that correct? Certainly appears to. And who is JFPO, please? Jews for the Preservation of Firearms Ownership. And what -- what group is that? What do they profess,
please? MR. MARTIN: Your Honor, may we approach? Your Honor,
I object to this line of questioning. THE COURT: Will be overruled. What is it, please?
(By Mr. Kumiega)
What is the organization? Yes. They are wanting the government, specifically the ATF, to
follow the same set of rules everybody else has to follow. Q. A. Q. A. Q. It's more than that, is that not true, please? In what way? Well, are you a member of that organization? Actually, no. Have you been interviewed by that organization on more
than one occasion? A. Yes, I have. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. You've been interviewed on the radio also; is that
1387
correct? A. Q. A. By several different radio shows. Yes. A person name Aaron Zelman? Yes. He's, I guess, the
A person named Aaron Zelman.
executive person in charge of Jews for the Preservation of Firearms Ownership. Q. And basically, what that organization wants to do is make
sure that there are no firearm laws in this country; is that correct? A. No. Actually, they brought up a very good historic fact
is that Senator Dodd, who introduced the Gun Control Act in 1968, was a prosecutor in Neuremburg, and he asked the Library of Congress to word-for-word transcribe the Nazi gun law, and that is almost word-for-word what the Gun Control Act is based on. Q. Can you hand me that, please? Can you read that, please,
starting with "documents"? MR. MARTIN: what he's reading. THE COURT: Have you furnished a copy to Mr. Martin? I have not. Your Honor, I don't even have a copy of
Let's furnish him a copy before you
question the witness. MR. KUMIEGA: Can I have a three-minute break to make
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 please. Q. (By Mr. Kumiega) Second paragraph from the bottom. Q. Honor. THE COURT: (Brief pause) THE COURT: Okay. copies? THE COURT: Okay.
1388
Ladies and gentlemen of the jury, we'll just stand at ease for a few minutes while -- have you got other questions you could be asking, and you can go back to this, Mr. Kumiega? MR. KUMIEGA: I'm getting ready to wrap up, your
Mr. Kumiega, do you have other questions
you can be asking not on this particular matter that's being copied? MR. KUMIEGA: THE COURT: Yes, your Honor.
Let's proceed. Mr. Savage, when your summary of
(By Mr. Kumiega)
testimony on your first report you generated the first time you did a, did an analysis -- do you have that with you? A. Q. that? A. Q. Yes. Now -THE COURT: If you would give a copy to Mr. Martin, Yes, I do. Page 2, second paragraph from the bottom. Do you see
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. Yes, sir.
1389
Talks about that certain evidence from former ATF owners
should be unworthy of consideration; is that correct? A. Q. A. ATF owners. ATF -- well, read that photograph for the jury, please. "The fact that the ATF interviewed former owners of the firearm is unworthy of consideration, because any of the former owners who might have modified or changed anything has a very substantial motivation not to tell the ATF because they would be facing federal charges by the ATF, as evidenced against Mr. Friesen." Okay. Now, this is not a scientific observation; is that
correct? A. Q. A. Q. No, sir. But --
Yes or no, it's not a -No, sir. This is basically your opinion of ATF prosecutions around Yes or no, sir.
the country; is that correct? A. Q.
It's not based on ATF prosecutions, it's based on -Mr. Savage, answer the question. This is not a
scientific observation? A. Q. A. It is not a scientific observation. It's an opinion; is that correct? Yes, sir. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
1390
And it's opinion because you are an expert for Mr.
Friesen, would it be fair to say you're not a dispassionate or a neutral observer in this case? A. Q. Not anymore. Okay. Yes or no, sir? Yes.
I'm definitely passionate about this.
So you're going to call the facts against the
government to suit your agenda? A. Q. A. Q. Sir, are you saying that I would lie? Okay. Facts are facts. Okay. Then why would you put an observation in here It would be wrong.
that's not considered a scientific observation, please? A. It's an observation. I never claimed it to be a
scientific observation.
My observation with people who have to
deal with when the ATF comes a-calling are usually scared to death. Q. I know I was when they came to my shop. Now, your report talks about -- you mention paint,
Okay.
you mention a welded magazine, you mention the wear and tear on machine guns that are 22 years old, you mention surfaces and abrasives, and then you throw this gratuitous comment about an opinion; is that correct? A. I don't know that I would call it gratuitous, but the
bottom line is they do have a substantial reason to not say that they are the ones who actually finished or completed that. The simple fact of the matter is if somebody else is under indictment they would have a great motivation to keep their B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. mouth shut. Q.
1391
So the point is that when the United States brought in
Government's 6 and 7, the owners of E682 and E685, they were subject to cross-examination; is that correct? A. Q. Yes, sir. All right. And when the tube was flashed on the screen,
the government can't cross-examine the photograph; is that correct? A. Q. No, sir. All right. Now, let me show you this -Excuse me. When you ask a question and
THE COURT:
then say "correct" and he gives an answer yes or no, I don't know whether he saying yes or no to "correct" or yes or no to the question, Mr. Kumiega. Reask the question. MR. KUMIEGA: THE COURT: May I approach the witness? So it's still very confusing.
Reask that question first. When the government -- the defense
(By Mr. Kumiega)
flashed their photograph of that, I guess that tube -A. Yes. Q. Since nobody sponsored it in here, according to you from The registered tube with only the single machining in it?
your statement -MR. MARTIN: your Honor. Your Honor, I object to that question,
It was sponsored by the government and my exhibit.
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. MR. KUMIEGA: THE COURT: MR. MARTIN: Judge --
1392
Which exhibit are we talking about? The 20-something exhibits that I
introduced through Agent Knopp that were government's photographs. THE COURT: So restate your question. They've been
admitted, so restate your question, and do it in a question form, Mr. Kumiega, rather than saying "correct" after a statement. MR. KUMIEGA: (By Mr. Kumiega) Yes, your Honor. According to your paragraph here, your
gratuitous paragraph in one of your reports, you said it's very difficult to trust the bonafides of a person who owns a firearm because of ATF action; is that correct? A. Q. A. That's not what that paragraph says at all. What does that paragraph say? It says that if the ATF interviewed the former owners of
this firearm, they would have a substantial motivation to not say, yeah, I did this, because they see somebody under indictment and they don't -- they would have a motivation. They don't want to be there under indictment. nature. Q. So without the firearm being presented, it's difficult to That's human
explain what the photograph portrays; is that correct? A. Not at all. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Q. A. Really? Either the photograph portrays a tube that was not
1393
machined completely by Mr. Charles Erb -Q. A. Q. A. Sir, how do you know it's Mr. Erb's gun? The one that was on -- because he said so. No, he didn't, sir. Well, all right. It was marked -- you told me so,
because it said something along the lines -Q. A. Q. A. Mr. Savage, answer the question. I thought I did. I don't think you did. Ask it again and I'll do my best, sir. MR. KUMIEGA: with this? THE COURT: Yes. This is entitled about The Gang; is Your Honor, may I approach the witness
(By Mr. Kumiega)
that correct? A. Q. A. Q. Yes, it is. And you said you have seen this before? I believe I have. And this is part of the documentary that you were
involved in? A. I don't know that it's part of the documentary, I believe
it's a trailer or a, just a quick description of what the documentary is about. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. Okay.
1394
And you said you went four or five minutes you
were being interviewed? A. Q. A. I am in there for four or five minutes, I believe. How long is the documentary? I want to say an hour and 45 minutes, somewhere around About the length of a movie.
there approximately. Q.
And third from the bottom talks about documents revealing
the shameful Nazi connection; is that correct? A. Q. A. Yes, sir, that's correct. And you subscribe to that; is that correct? I don't necessarily subscribe -MR. MARTIN: THE COURT: Your Honor, I object to the question. Be overruled. You subscribe to that? Yes or no, sir.
(By Mr. Kumiega)
It's not a yes or no.
You're asking me if I subscribe to I told you
everything that this particular organization does. I'm not a member.
I've been interviewed by them, I've been on
their TV show.
It's historic fact that Senator Dodd asked the
Library of Congress to translate the Nazi gun law and that there's a book out and page by page, section by section, they are extremely similar, almost identical. fact. Q. And that's historic
That's not my opinion, that's fact. Okay. And the second one from the bottom, can you read
that, please? A. "A top agency executive openly admits to a policy of B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. A. lying to the public." Do you subscribe to that? I have actually seen Mr. Busey's roll-call training He did.
1395
video.
He actually told them that even though they
knew the NFRTR was only 49 to 51 correct when they go to court, they are to testify that it's a hundred percent correct. it was an ATF training video shown approximately in 1995. Again, it's fact, it's not whether I subscribe to it. Q. And the last one, do you subscribe to the last And
presentation there? A. That an attorney tells you ten things you must do and not That's in the
do when a government agent comes to your home? film. Q. A.
And the very bold words at the very top, sir? "If you own, buy, build, collect, or sell or use a firearm, this tax-funded agency is quickly becoming your worst enemy." And you believe that too; is that correct? No, not necessarily. I think that they need to have some
written standards, and I think that the agency shouldn't be scrapped, but it certainly needs some overhaul. Q. Now, as part of your expertise, to drum up business, you
advertise on the internet; is that correct? A. Q. That's incorrect. Do you tell people on the internet that you're Mr. Savage B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. and that I'm here to help you against the government in my expert -- with my expertise? A. No. That is absolutely incorrect. I don't have any
1396
website or any advertisement anywhere on the internet. Q. Now, Mr. Savage, you also said that you had an interview
with a person named Aaron Zelman; is that correct? A. And I've had an interview with G. Gordon Liddy and Larry
Pratt of Gun Owners of America, Michael Dukes of Firearms Friday, several others. THE COURT: You seem to have a --
Just answer the question, Mr. Savage.
Don't make additional comments. THE WITNESS: (By Mr. Kumiega) Yes, I have had an interview with him. In your document, in your interview,
it's going to be on the second to the last page, fourth paragraph from the bottom, do you remember, Mr. Savage, talking in this interview with Mr. Zelman, do you remember when this was, please, by the way? A. No. If you would like to show it to me. May I approach, your Honor? Yes. Are you familiar with the interview?
(By Mr. Kumiega) Yes.
And I also am familiar with telling Aaron Zelman
that this was redacted somewhat and not completely accurate. But anyway. Q. When was that interview conducted? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. I'm guessing this was 2004, '5-ish.
1397 I've actually had
several interviews with him and others. Q. And this is the president, or what connection does he
have with the JFPL, please? A. Q. A. Q. A. Q. JPFO? Yeah. The name of the group again?
Jews for the Preservation of Firearms Ownership. And his connection to that group? I believe that he's the executive in charge of it. Okay. And in that interview, sir, did you espouse the
platform of abolishing ATF so the Department of Commerce can examine firearms? A. We explored what could be done in that interview, and
that was that did we really need a federal gun police since we have FBI for federal crimes. I think the question was asked
did I think -- would the Department of Commerce be better to regulate firearms since they regulate commerce in everything else. So I vaguely remember what you're saying. Yes. Again, you
took it away from me, but I do remember. Q. Okay.
So part of your agenda, sir, is that you really
want to do away with ATF; is that correct? A. Q. A. No. That's not correct. Part of your agenda is to do away with ATF? I want the ATF Firearms
All right.
You keep saying an agenda.
Technology Branch to get written standards, so as a B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
1398
manufacturer, when I send something in to them I know to what standard they are going to test it. I don't know that at this And at this point
point and I would like them to change that.
it's my understanding they are actually working on written testing standards. Q. And, again, when you performed your tests, you had no
standards, you had nobody review it, and you never wrote any reports; is that correct? A. here. Yes or no. You keep mixing metaphors
You keep saying "yes or no."
When I design a firearm, yes, I do use standards and When I did my tests here, it was fluid. When I
methods.
discovered that there was no dents on here, I wanted to find out if I got dent on a similar tube. it up. Q. So you're kind of mixing
So what is it you want to know? Do you have a
What I want to know is your bias, sir.
bias against ATF? A. I don't have a bias. I want them to do what's truthful,
I want them to do what's right, I want them to have a written set of protocols and procedures for manufacturers. When you
talk about a bias, if that's a bias for me, wanting them to have a written set of standards, then, yes, if that's you're calling a bias, calling for change, reform. MR. KUMIEGA: THE COURT: MR. MARTIN: I have nothing further, your Honor. You may redirect. Yes, sir.
Savage - Redirect 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. BY MR. MARTIN: Q. REDIRECT EXAMINATION
1399
During cross-examination, Mr. Kumiega asked you about the
distinctions between the Sten II and the Sten III and a Sten II-S. A. Q. Do you recall that, sir? Yes, I do. In front of you I believe is what's been marked for Do you see
identification purposes as Defendant's Exhibit 112. that, sir? A. Q. A. Q. Yes. Would you tell us what that is? It's the front end of a Sten Mark III. All right.
And does that accurately represent what a
Sten Mark III would look like, sir? A. Yes, it does. MR. MARTIN: Your Honor, I'll move for introduction of
Defendant's Exhibit 112. MR. KUMIEGA: THE COURT: No objection.
Will be -- did you say no objection? Yes, sir.
Will be admitted. And could you briefly hold that up and
(By Mr. Martin)
Government's Exhibit 3.16 and point out the distinctions between those two exhibits, sir? A. Well, this (indicating) was made out of a piece of flat B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Redirect 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
1400
plate or wound around a mandrel, pinched together and welded across the top. And this is made out of a piece of seamless This uses rivets to permanently affix the This uses socket-head cap screws.
mechanical tubing.
barrel and bushings in.
That's the primary differences between these two. Q. A. All right, sir. And are the barrels alike or --
They appear to be, although this barrel is loose, and
this one is tight. Q. Okay. And also, sir, let me ask you: One of the
scientific methods you employed in this case -- you heard the testimony, did you not, of Sarah Waldrop, didn't you, sir? A. Q. Yes, I did. And -- Walbridge. I apologize. About visual comparison.
Did you do that in this case? A. Q. Yes. Okay. She did and so did I. And many of conclusions you reached in this case
were based upon that scientific method, were they not, sir? A. Q. Yes. And do you recall the photographs that she had of the
painting of the Sten so you can tell it was a single coat of paint? A. Q. A. Q. Yes. I remember her photograph.
Well, do you recall her testimony about that? Yes. There are no photographs, are there? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Redirect 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. No.
1401
She only has the photographs of the serial number
area and -Q. All right, sir. And let me ask you this: You were given
reports in this case from me for preparation for trial, were you not, sir? A. Q. Yes, sir. As a matter of fact, when was it that you received the
majority of the reports of the scientific tests that the government conducted in this case? A. Q. Just a few weeks prior to trial. And as a matter of fact, let me ask you, sir: Relating
to the Government's Exhibit 3.16, the Sten up there, that -did you take a measurement as to the tube and the bolt that is in that tube, sir? A. Q. A. Yes, I did. And did you note any distinctions in those measurements? Yes. The bottom has -Objection, your Honor. Not part of
MR. KUMIEGA: direct testimony. THE COURT:
It's a whole different field. You mean not part of the cross? I'm sorry. Not part of the cross nor
MR. KUMIEGA:
was it brought up during direct. MR. MARTIN: Yes, it was, your Honor. I talked to him
about the tube and the measurements and the -MR. KUMIEGA: Not about the bolt, and it was not part
Savage - Redirect 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that. MR. KUMIEGA: MR. MARTIN: I didn't. of the cross-examination. THE COURT: MR. MARTIN:
1402
I didn't hear anything on cross about it. I don't know what -- I can't remember all I've got a very brief
of Mr. Kumiega's cross, your Honor. point here on this. MR. KUMIEGA: THE COURT:
Which we object, your Honor.
Counsel approach.
(The following was had at the bench, out of the hearing of the jury:) THE COURT: I don't remember him going into any of
I've just been given by the government
the report, your Honor, this morning about Mr. Kong's testimony, and he's going to get on the stand and offer testimony. THE COURT: Then you can cross-examine him. It's rebuttal, Judge.
MR. KUMIEGA: THE COURT: MR. MARTIN: THE COURT: MR. MARTIN: THE COURT: MR. MARTIN:
I didn't hear anything in cross -Okay. -- about it. Very well. You can cross-examine Mr. Kong. It's -- never mind.
(The following was had in open court, within the hearing B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Redirect 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 of the jury:) Q. (By Mr. Martin)
1403
Now, the -- the -- you were asked on
cross-examination about how Government's Exhibit 3.16, I guess, has changed in looks over a period of time. testimony, sir? A. Q. Yes. Okay. And have you seen evidence of what's occurred to Do you recall that
that gun to cause it to be damaged or lose paint or whatever? A. Q. Yes, I have. Okay. As a matter of fact, when you conducted your
tests, your examination of that gun, did you come to find out later that you were videotaped? A. I found out after the fact; it was done without my
knowledge. Q. Okay. So you didn't know that the ATF would be
videotaping you when you were examining that gun? A. Q. A. Q. No, I did not. And were you ultimately provided a copy of that? Yes, I was. And at the conclusion of that, does it show any
indication as to the proper or improper handling of that gun? A. About the last 30 seconds of the DVD, after I had stepped
out of the room that we examined it, Agent Knopp was attempting to assemble the firearm. We were on our way to the elevator to
go down, and he had gotten the bolt stuck, and he started B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Redirect 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q.
1404
striking this right here, I didn't have the butt stock on, but he started striking the bottom down against the table in the room that we examined trying to get the bolt out. Q. A. And what happens after that? It just -- they cut off the tape. We didn't get to see
what else he did. Q. All right, sir. And based on the photographs you've
seen, you have seen of how the gun looked when it was seized and how the gun looks today, how would you compare those? A. Severely worn compared to when it was first taken into It wasn't nearly as scratched up. MR. KUMIEGA: THE COURT: Objection, your Honor. Will be sustained. Did you -- when you looked at the No foundation.
custody.
(By Mr. Martin)
photographs, how did they appear? A. The photographs that were taken right after the gun was
taken into custody and the photographs that I took when I did my examination, the gun was far more scratched up, beat up, parts of it were bent, and looked like it just kept getting thrown around, either thrown into a vault or in a box or on the floor. Q. All right. Now, you, I believe, were asked by Mr.
Kumiega about government -- excuse me -- Exhibit 45, were you not, sir? MR. MARTIN: Could we put that up?
Savage - Redirect 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. (By Mr. Martin) Yes, I can.
1405
Can you see that on the monitor, sir?
And you heard the testimony that was a photograph taken
by the ATF, have you not, sir? A. Q. Yes, I did. And this is the tube you were talking -- that you were
testifying about that was missing all the cut-outs? A. Yes. It doesn't have the complete cocking slot cut-out,
just has a slot. Q. Okay. And you've also -- were asked on cross-examination
about other photographs that were taken by the ATF. MR. MARTIN: In particular, could we go to Defendant's
Exhibit 52, the second picture? Q. A. Q. (By Mr. Martin) Yes. Is there anything unusual about this photograph, Exhibit Do you recall seeing this picture, sir?
52, that draws your attention, sir? A. this. Q. A. Is that -- what? In what way? Yeah. It sure looks a lot like this, the tube that made
If you look at the tube, the only thing that's different One, this has all the machine cut-outs,
really is two things.
and two, it looks long enough to actually be a proper Mark III. It's actually a little longer than this, just without measuring it it appears to be approximately an inch or two longer than B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Redirect 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Q. Q. the tube on this. But if that's Mr. Erb holding that and
1406
that's one of Mr. Erb's tubes, it sure does look hauntingly familiar to this particular tube that made this firearm. MR. MARTIN: (By Mr. Martin) Can we go back one? This is the picture in front of that in
Exhibit 52. A. Q. Yes.
Do you see that, sir?
Big distinction?
What would you characterize the
distinction between those two tubes? A. Q. Length only. Okay. MR. MARTIN: (By Mr. Martin) MR. MARTIN: THE COURT: (By Mr. Martin) Go back to the other one. All right, sir. And if I might approach. Yes. Defendant's Exhibit 110 and 111 are the
two tubes that you performed your experiments on, correct, sir? A. Q. A. Q. A. Q. A. Q. Yes, sir. One of them has two strikes, that's 110? Correct. Verify that for me, please. Yes. And 111 was only struck once; is that right? That's correct. And when you were measuring those tubes across the top B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Redirect/Recross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. KUMIEGA: Q.
1407
and measuring Government's Exhibit 3.16 over the serial number where someone would have hit it, tell the ladies and gentlemen what you were looking for. A. What I was looking for is dents or a dimple formed from
striking the die on the tube. Q. A. Q. A. Q. And did you find that in 3.16? No. And did you find that in 110 or 111? Both of them. Okay, sir. MR. MARTIN: Again, your Honor, I would ask the Court
to allow those exhibits, along with 3.16, to be published to the jury. I have no further questions. Any other recross? Yes, your Honor, regarding new material
THE COURT: MR. KUMIEGA:
in Mr. Martin brought it. THE COURT: I sustained your objection. Regarding the video, your Honor. Excuse me? The video. He brought up new
MR. KUMIEGA: THE COURT: MR. KUMIEGA:
information for the United States to explore. THE COURT: Okay. RECROSS-EXAMINATION
Mr. Savage, after you damaged the tube, and you said you B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Recross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. did it inadvertently; is that correct? A.
1408
I never said I damaged the tube; I said I scratched the
paint. Q. A. Okay. No. You damaged it?
I scratched it. Let's move on. You scratched the paint over the serial
THE COURT:
(By Mr. Kumiega)
number? A. Q. A. Yes, I did. And you said -- what was the length of that, please? Looks like two of them about a quarter-inch long or about
the same width as the jaws of my micrometer. Q. A. Q. A. You said you did that inadvertently; is that correct? That's correct. And can you again show the jury how you did that, please? Would you like me to use a micrometer or would you like
me to use my imagination? Q. How about use the micrometer and show the jury how you
did it. A. Sure. I would be happy to. Your Honor, I didn't go over this. I
MR. MARTIN:
thought he was going to go over something that I had brought up. MR. KUMIEGA: He went over the videotape, your Honor.
That's why the United States video -- we had a videotape B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Savage - Recross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 because of his methods of -THE COURT:
1409
Why don't we get into why you videod it
and you can ask -- I don't think that he went into any of the -- what I heard was he just went into that the United States videoed it. Q. (By Mr. Kumiega) And you knew the second time you
examined the gun you were going to be videotaped; is that correct? A. I didn't know, but I strongly suspected, and I also made I felt it
my intentions known that I really didn't like it. was a violation of my civil rights. Q. A. And why would that be? Because I have the right to privacy.
If I wasn't being
detained or arrested, what right did the ATF have to videotape me? Q. A. Q. A. sir. Mr. Savage, you're an expert; is that correct? Yes, I am. And you were doing scientific tests? I was -- I was not doing scientific tests yesterday, no, I was actually doing some observations and some
photographs of some areas of the gun I could not disassemble the first go-round. Q. In fact, on the videotape the first time, you are
scratching the gun? A. I did scratch the gun. Yes, sir.
Savage - Recross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Honor. THE COURT: MR. MARTIN: Okay. If I haven't, I was told I hadn't Q. Q. All right. Okay.
1410
And again, can you show us how you did
that, please, with the micrometer? MR. MARTIN: THE COURT: Again, your Honor -Will be sustained. Okay. Now, one of the exhibits that were
flashed, Defendant's Exhibit 52, do you see a serial number on that? A. Q. A. No, I do not. And you believe that's Mr. Erb; is that correct? According to the ROIs that are accompanying that, that is I can't tell you if that is Mr. Erb or
one of Mr. Erb's tubes. not. Q. Okay. MR. KUMIEGA: THE COURT: (Brief pause) MR. KUMIEGA: THE COURT: MR. MARTIN:
Your Honor, if I can have a second. Yes.
Nothing further.
Anything else, Mr. Martin? Just like to publish the tubes, your
introduced 110 and 111, I thought I had, your Honor. THE COURT: I thought they were.
Savage - Recross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the -MR. MARTIN: THE COURT: Could we do all three? Let Mr. Bostic do it. MR. MARTIN: THE COURT: I thought they were.
1411
Mr. Bostic, if you could come up and hand
(The exhibits were displayed to the jury.) THE COURT: MR. MARTIN: THE COURT: Can Mr. Savage be excused? He may be excused, your Honor. Mr. Savage, you may be excused.
While they are doing that, counsel approach, please. (The following was had at the bench, out of the hearing of the jury:) THE COURT: MR. MARTIN: THE COURT: about 20 minutes. MR. KUMIEGA: THE COURT: Now, your Honor? You have one more witness? I have two very short ones. Okay. I think we'll take a break then for
Excuse me? When do you want to do that? And
As soon as they get through looking.
then you're going to call rebuttal? MR. KUMIEGA: THE COURT: Yes, sir. Mr. Kong?
Who is that?
Mr. Knopp, Mr. Kong, Tim Kelley.
What's Mr. Knopp's testimony?
1412 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 witness. MR. MARTIN: MR. KUMIEGA: THE COURT: MR. KUMIEGA: In rebuttal? Yes. MR. KUMIEGA: THE COURT: MR. KUMIEGA: About the No. 52. No. 52? Defendant's Exhibit No. 52, that Mack
just flashed on the screen, and also about banging the gun. Tim Kelley is going to talk about that the gun is in substantially the same or similar shape as when he seized it back in 2004, talk about his interview with Terri LeMaster. MR. MARTIN: MR. KUMIEGA: MR. MARTIN: MR. KUMIEGA: Terri Dennis. LeMaster. She's your witness, she's not my witness. Doesn't matter. I can impeach my own
What? To say the interview was not It was a Myself,
contentious, it was very nice, no good guy/bad guy. very easy-going interview. There are four people:
Delbert Knopp, my secretary, and her, and it was a very easy-going interview. MR. MARTIN: It's rebuttal, not their own evidence of
that's what happened in his case in chief. THE COURT: MR. KUMIEGA: What else? She's not really my witness. We had to
give her use immunity, and under Rule 607 I can impeach my own B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
1413 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 witness. A witness is a witness. THE COURT: MR. KUMIEGA: So what else? Then one more -- I can't remember. It's
on my list, your Honor. THE COURT:
One more short, but I can't remember.
So you'll finish it today? Very close, your Honor. I
I'll think about the Terri LeMaster. I didn't hear her say
would have to review her testimony.
anything about how contentious it was. MR. KUMIEGA: She said it was very contentious, very
aggressive, I think is the word she used. THE COURT: So what relevance does that have? Just shows she has motive. For what? To lie.
I didn't even hear any of her testimony
that was relevant to either side. MR. KUMIEGA: There was. The relevance of her
testimony was that she saw Mr. Friesen with a machine gun prior to him -- the Sten machine gun prior to him lawfully having one in 1996, and dated it by the Oklahoma City bombing. THE COURT: She testified to that? Yes, sir. In his case in chief, Judge. That was
MR. KUMIEGA: MR. MARTIN: not rebuttal.
1414 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that. MR. KUMIEGA: community. That's why we had to give her use MR. KUMIEGA: She did a 180 on me. THE COURT: You didn't ask her about the report. Yes, I did, your Honor. It is rebuttal. She's -- under 607.
I'm going to have to review her testimony. I didn't hear that you
I didn't hear any of that, Mr. Kumiega.
ever tried to declare her a hostile witness or rebut -MR. KUMIEGA: THE COURT: examination. MR. KUMIEGA: Yes. You know, I honestly do not Judge, the reason --
-- brought up her reports in her
remember, but I remember -THE COURT: MR. KUMIEGA: I don't remember that. There was an affidavit from Mr. Friesen
that she acknowledged signing. THE COURT: Well, there wasn't anything hostile about
She refused to testify for the government. I know. But I didn't hear any of her Maybe I
THE COURT:
testimony that was refuted by you in anything. misunderstood. MR. KUMIEGA:
She said it was contentious when in
truth and fact it was not. THE COURT: I didn't hear any of her testimony that
1415 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 yet. you rebutted with some prior statements or anything. MR. KUMIEGA: THE COURT: I honestly don't remember.
I'll review her testimony. I know she said that, your Honor.
MR. KUMIEGA:
(The following was had in open court:) THE COURT: Ladies and gentlemen, we're not through
Take your time.
(The following was had at the bench, out of the hearing of the jury:) MR. MARTIN: I would like to object at the appropriate We can do it now or
time to some of the rebuttal, your Honor. we can do it -THE COURT: your case in chief. MR. KUMIEGA: THE COURT: the other? No. Of course not.
Rebuttal is not going to be reiteration of
I can understand Mr. Kong.
But what is
Mr. Knopp? Mr. Knopp on the photograph that was not
MR. KUMIEGA:
part of the E series, and Mr. Knopp, I guess, banging on the machine gun. I would like to talk to Mr. Knopp regarding that.
And as I say, regarding Tim Kelley on the preservation of the firearm, that it's in the same condition that it was back when he seized it. THE COURT: Did he not testify to that? Excuse me?
MR. KUMIEGA:
1416 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Honor. THE COURT: Did anybody testify to that fact? Yes. The girls that -- Inspector McGrew THE COURT: Did he not testify to that on direct? No. He never testified on direct, your
MR. KUMIEGA:
MR. KUMIEGA: and Inspector Rowden. THE COURT:
So why would it be rebuttal? Because they are making a big deal. He's just disagreeing
I understand that.
with what your direct was. MR. KUMIEGA: THE COURT: Exactly.
It's not rebuttal to reissue your direct. The person who has actually the
MR. KUMIEGA:
preservation of the evidence, Mr. Kelley, was in charge of the chain of custody. He can testify the gun is in substantially
the same shape, nothing has really changed. THE COURT: Didn't your two -- did you have that
testimony in your direct? MR. KUMIEGA: THE COURT: I believe I did.
So why would that be rebuttal? Because they are attacking it.
They can attack your direct. That's what the purpose of rebuttal is.
MR. KUMIEGA:
I can rebut what they are saying, their testimony. THE COURT: But you already rebutted it. You already
Foster - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. MARTIN: Q. A. Q. Introduce yourself to the jury, please. My name is James E. Foster. All right, sir. I go by Jim. testified about it. MR. KUMIEGA: You can't retry your whole case. I'm not retrying my whole case.
1417
I'm
just making the point that the gun was the same, your Honor. (The following was had in open court:) THE COURT: Are we through now?
We'll take our afternoon break for about 20 minutes. Remember the admonitions that I've given you before. All rise while the jury exits. (The jury exits the courtroom.) (Court stood in recess, after which the following was had in open court:) THE COURT: MR. MARTIN: Mr. Martin, call your next witness. James Foster, your Honor. JAMES FOSTER, called as a witness, having been duly sworn, testifies as follows: DIRECT EXAMINATION
And what is your profession or
occupation? A. Q. A. I'm a private investigator. And who do you work for? I work for the Law Offices of Doug Friesen. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Foster - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. And prior to that, what did you do, sir? I worked for the state of Oklahoma. I retired from
1418
there, I was supervisor of computer operations at the University Health Sciences Center. Q. All right, sir. And how long have you known Douglas
Friesen? A. Q. I don't know. Okay, sir. Seventeen, 19 years. During your time of
And let me ask you, sir:
employment with the law office, among your duties did you have the occasion to travel to a residence in Northwest Oklahoma City of Annette Johnson? A. Q. Yes, sir. Would you tell the ladies and gentlemen of the jury about
that, please? A. case. Mr. Friesen was representing Ms. Johnson in a divorce She had some firearms that were her husband's, and Doug asked me to go out and get
wanted them out of the house. them.
I drove out by the Nichols Hills police and asked the
dispatcher if she can have a police officer come to the house while I was getting the guns. I drove on over to Ms. Johnson's
house, the Nichols Hills police were there when I arrived. Went inside, Ms. Johnson was getting some clothes, her clothes, and she had two children, I think a son and a daughter. Q. A. Why was she getting clothes, sir? I'm sorry? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Foster - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. A. down. Why was she getting clothes? They were moving out. Go ahead. I'm sorry.
1419
The -- she showed me where the guns were.
I brought them I
One was a Beretta 92F, which is a military firearm. They were both in
don't remember what the other one was. boxes.
I opened the boxes, checked magazines for ammunition,
checked the chamber, make sure there wasn't a round of ammunition in it. ammunition. Johnson. Both of them were -- didn't have any
Packed them up, went outside and waited for Mrs. She asked
She made a couple of trips with clothes.
me if I would follow her out, she was going to pick her children up, they went to school at Christ the King. said, sure, I'll be happy to. And I
Went back out, thanked the She
officer for his time, followed Ms. Johnson to the school. picked up her children, and I went back to the office. Q. And where were the firearms when you got back to the Where were the firearms when you first got back?
office? A. Q. A. Q. A. Q. A.
They were in the car. Okay. What did you do with them?
Doug's car was not there. Was not where, sir? At the office, at his office. All right. And I own an antique shop next door to Doug's. I bought
Foster - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
1420
the property there and my wife and I had an antique shop there. So Doug wasn't there, and I don't have the key to the safe in the library. safe. Q. A. Q. When you say "them" what do you mean, sir? The two firearms. Okay. And do you recall approximately what time frame So I took it into my shop and put them in my
this was? A. Q. No, sir, I don't. All right. I think it was January. In relation -- are you familiar
All right.
with a compliance inspection, sir? A. Q. Yes, sir. In relation to the compliance inspection, and I'll
represent to you that occurred February 19, 2003, would it have been before or after? A. Q. A. That I picked up the firearms? Yes, sir. It was before I picked them up. I'm sorry. I picked up
the firearms before the compliance inspection. Q. A. Q. A. And I believe you testified you put them in your safe? Yes, sir. When was the next time you saw those firearms? After the firearms, or the compliance inspection, that
evening I left the office probably 5:00 or so, drove home, my wife and I had dinner, and all the sudden I realized that they B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Foster - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q.
1421
did not see two firearms, because I had them over in my safe, and I thought that I had gotten Doug in trouble. and apologized. I said Doug, I'm sorry. I called him
I don't -- I have two And
guns that I picked up from Mrs. Johnson over in the safe. I said, what do we do? morning? Do you need to call them in the
And he said, no, they are not my firearms.
He said,
bring them over in the morning. MR. KUMIEGA: THE WITNESS: THE COURT: Objection to hearsay, your Honor. I'm sorry.
Be overruled. Okay. After you called Doug, what did
(By Mr. Martin)
you do the next day? A. I got there maybe 8:15 or so, and I called over to Doug's
office. Q. A. Q. A. This is the day after the compliance inspection? Yes, sir. Okay. And told Doug I have the firearms. He said bring them on
over, and I said okay.
So I went over and I came in through
the back door and the kitchen area goes into the library, and Doug was already in there. Q. A. In where, sir? There's a bookcase, or a, it's a library, and from the And Doug has his books in there and some
floor to the ceiling. things.
Foster - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. Is there a safe behind those books? Yes, sir. Okay.
1422
And did you all do something with respect to those
guns, those two firearms that you got from Ms. Johnson and that safe? A. Yes. Doug was already in there, and I apologized again,
and he said don't worry about it, and he took the guns, and he checked them to make sure there wasn't any ammunition, same thing I had done, and I think I remember saying I checked them and he said I know you did. But it's proper any time you get a
firearm, you check to make sure -- it's always the unloaded gun that kills someone. Q. Did you -- when you were standing there with Doug, did
you look inside that safe, sir? A. Q. I saw inside the safe. Prior to those two -- those two firearms -- well, were
there any firearms in that safe? A. No, sir. There was a -- as I recall there was a VCR
tape, some papers, and then on the bottom of the safe there was an accordion type folder. Q. A. All right. And there were some files in there that I think were from
the office. Q. A. And where were those firearms placed then? I think Doug, he put them down on the floor. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Foster - Direct/Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. KUMIEGA: Q. A. Q. Good afternoon, Mr. Foster. Afternoon, sir. Q. A. Q. A. Q. Inside the safe or in the secret room? No. Inside the safe. So they were in the safe?
1423
Okay, sir. Yes, sir. All right.
Now -Just a moment, your Honor.
MR. MARTIN: (Brief pause) MR. MARTIN: THE COURT:
Nothing further. Any cross-examination? Yes, your Honor. CROSS-EXAMINATION
MR. KUMIEGA:
Now, you have been a friend of Doug Friesen's for many
years; is that correct? A. Q. Probably, as I said, 18, 19 years. And you have worked exclusively for him as a private
investigator; is that correct? A. Q. A. Q. A. That is correct. And from what time frame, please? 1994 until 2002. Okay. And that was on retainer for Mr. Friesen?
At first, when I first went to work for Mr. Friesen, I I was a salaried employee.
was paid regular salary.
Foster - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. A. This is '94 to '02? Well, half that. Okay. I was a salaried employee.
1424
Sometime in, I think, early
2000 I was changed over to a contract employee and paid with, well, paid with check and everything, but it all went on a 1099. Q. Okay. And so from that period of time to currently,
what's the nature of your business relationship with Mr. Friesen? A. In 1999, I had a total knee operation. I had a blood
clot and they thought part of it had broke off and gone to my brain. I still would go down to the office. And in 2002, I And by
was diagnosed with cancer, neuroendocrine carcinoma.
2003, I wasn't working anymore, just trying to heal up and everything. been. Q. And -All right. So are you currently -- what's the nature of Everything is fine now. I'm in remission and have
your business relationship with Mr. Friesen as we sit here today? A. I'm not sure of the time frame, but after the chemo,
radiation and everything, was there at my house, and stayed there, I didn't go out much, and I was seeing a psychologist. Q. A. Mr. Foster -I'm sorry. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Foster - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. The question I'm asking you today is:
1425 What's the nature
of your business relationship with Mr. Friesen? A. I go down to the shop, run errands, do some filings, and
things like that. Q. A. Q. A. Q. You still office at the business; is that correct? Well, I have an office in two places. Okay. Yes. Okay. And you're one of his best friends; is that Do you have an office at Mr. Friesen's law office?
correct? A. Q. I like to think so. Okay. Yes, sir.
And as you said, the nature of the relationship
goes back to 1994; is that correct? A. Q. Yes, sir. And you were present, as you testified, when the
compliance inspection occurred on February 19, '03; is that right? A. Q. Yes, sir. Okay. And you just testified that you received some guns
from Annette Johnson just prior to that in December of '03 or January -- excuse me -- of '02? A. Q. Yes, sir. And Mr. Friesen told you to get those guns and bring them
to the office; is that right? A. Yes, sir. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Foster - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Okay. And you said that you thought you got Doug in
1426
trouble; is that right? A. Q. A. Q. That is correct. And you knew about the compliance inspection? Yes, sir. And did you tell him, Mr. Friesen, I think I got you in
trouble, on the day inspectors knocked on the door? A. Q. Yes, sir. All right. And again, what did you tell him? Why do you
think you got him in trouble? A. Because I had two firearms which Doug was holding that I
had them over at my shop. Q. Your shop at -- you own an antique store; is that
correct? A. Q. A. Q. A. Q. A. Q. A. Q. Yes, sir. So you had them at your store? Yes, sir. On the 19th of February? Yes, sir. The day of the compliance inspection? Yes, sir. And why do you think you got him in trouble? I thought that they had to see guns. Okay. And after you had your talk with Mr. Friesen, what
did you do about the guns? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Foster - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. guns. Q. A. Q. That's on the next day? The 20th. Okay. Yes, sir. I brought them over to him. Okay.
1427
He said they didn't need to see those, they were client
So on March 3rd, excuse me, on March 4th, 2003,
the guns were in Mr. Friesen's hidden room; is that right? A. Q. They were in the library and in the safe room. All right. The hidden room in the back, behind the
bookshelf? A. Q. Yes, sir. Okay. Now, you're familiar with that hidden room; is
that correct? A. Q. A. Yes, sir. And was used to -- for what purpose? Mr. Friesen has a considerable amount of artwork that
he's purchased over the years. Q. A. Okay. He kept -- the artwork that's not on the walls he kept He also had a safe back there for clients.
back there. Q.
And you were working for Mr. Friesen when that safe, or
that hidden room was installed; is that correct? A. Q. Yes, sir. You know Mr. Nelson, John Nelson? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Foster - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 please. Q. (By Mr. Kumiega) That's the gun vault behind the A. Q. Yes, sir. He's also a good friend of Mr. Friesen's; is that
1428
correct? A. Q. Yes, sir. All right. And you were aware that Mr. Friesen would
store certain items in that, behind the book shelves? A. Q. A. Yes, sir. Okay. Who had access to that room?
Of course, Doug had access, I think the key was either
kept at the front desk, Nicki would keep the key, or Tiffany had the key in her closet where he keeps other keys. MR. KUMIEGA: Can we look at Government's Exhibit 2.1,
bookshelf; is that right? A. Q. A. Q. A. Q. A. Q. A. Yes, sir. All right. And in there was firearms; is that correct?
You mean the day after the compliance inspection? No. No. At all. All the time.
Not all the time. How do you know that, sir?
Not all the time.
Well, I don't think Mr. Friesen kept guns in it. How do you know that? Well, he kept all those guns at the house. The safe that
was in, behind the library -B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Foster - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q.
1429
You heard the testimony, do you know Annette -- well, you Do you know about Ms. Long?
testified about Annette Johnson. Do you know her, Catherine Long? A. Q. A. Q. A. Q. Oh, yes, sir. Okay. Yes. And who was she, please?
She was a secretary.
And Julie Ann White?
She was -- I think her title was office manager. Okay. Now, they had access to that vault, didn't they,
or that hidden room? A. Catherine probably did. I apologize for the time frames.
Catherine worked there before the compliance inspection, I think. Q. Okay. And she testified that there were always guns in
that vault. MR. MARTIN: mischaracterization. THE COURT: Will be sustained. The Rule has been Your Honor, I object to the
invoked and so one witness isn't necessarily supposed to know what other witnesses have testified to, Mr. Kumiega. Q. (By Mr. Kumiega) THE COURT: objection. MR. KUMIEGA: apologize, your Honor. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603 I thought it was regarding -- I If other witnesses said --
Mr. Kumiega, I just sustained the
Foster - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. (By Mr. Kumiega)
1430
So you're saying there were never any
guns in that vault? A. Q. jury? A. Q. A. Q. Yes, sir. Regarding one of these very issues; is that correct? Yes, sir. And during that grand jury testimony, you explained how I can't say never. Okay. Now, you remember testifying in front of a grand
you brought Ms. Johnson's guns to the law office; is that correct? A. Q. That is correct. All right. And you at one time -- well, who put them in
the safe then when the government found it during the inspection, or the search warrant? A. Q. A. I'm sorry, who -How did the firearms get in the secret room? I have no idea. I suppose Doug probably put them in
there. Q. So on the 19th of February 2003, you told Mr. Friesen
that I have Annette Johnson's guns? A. Q. A. Q. Yes, sir. And later -- and did you give them to Doug? I gave them to him the next morning. So on the 20th you gave them to him? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Foster - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. Yes, sir.
1431
So do you know where they were from the 20th of February
2003, to the time the search warrant was done June 10th, 2004? A. Q. A. Q. I assume they were in the safe. Okay. That's where Mr. Friesen had put them. Okay. So when Mr. Friesen was interviewed by Inspector
McGrew on March 4th, 2003, regarding firearms in the office -A. Q. A. Q. Yes, sir. Are you following me? I think so. Yes, sir.
He knew that there were guns -MR. MARTIN: Again, your Honor, he's going into
testimony of another witness. MR. KUMIEGA: I'm not, your Honor. I'm asking him a
question about when the search warrant occurred, when the -when Ms. McGrew had the opportunity to talk to Mr. Friesen, and Mr. Foster knowing when the gun was finally placed in the safe. THE COURT: Just ask him if he knows when the gun was
finally placed in the safe. Q. (By Mr. Kumiega) Do you know when the gun was finally
placed in the safe? A. Q. A. The day after the compliance inspection. On the 20th, right? Yes, sir. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Foster - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Q. back. MR. KUMIEGA: (By Mr. Kumiega) Yes. Q. A. The second day of the compliance inspection?
1432
I don't know if it was the second day of the compliance But --
inspection. Q. A. Q. A.
On the 20th? I gave Mr. Friesen those guns on the 20th. And did you watch him put them somewhere? He put them on the floor of the safe, on top of each
other. Q. Okay. On the 20th. So when Ms. McGrew interviewed Mr.
Friesen on March 4th, 2003 -MR. MARTIN: Your Honor, again, I'll object. We're
going into testimony of another witness. MR. KUMIEGA: THE COURT:
He doesn't know that.
Of course, he does, your Honor.
I guess he knows when Ms. McGrew came
When Ms. McGrew interviewed Mr. Friesen
on March 4th, 2003 -MR. MARTIN: THE COURT: Your Honor, I don't think -I don't know that he knows that. Lay some
foundation about if he knows. MR. KUMIEGA: (By Mr. Kumiega) Okay. The inspection ended March 4th, 2003.
Do you know about that, roughly? A. No. Not really.
Foster - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q.
1433
Do you know the inspection lasted a couple of days, at
least a week or two? A. Q. A. No, sir. You don't know about that? No. I thought they were there that one day. Now, they
came back and picked up a -- I think they call it the FFL, Doug's records. Q. All right. You were officing at the building during that
period of time; is that correct? A. Q. Yes, sir. And you were watching the inspectors come and go for a
period of time of about ten days; is that correct? A. Q. No. I saw them the day of the compliance inspection. You knew -- you were helping or did you know Mr.
Okay.
Friesen was looking for some business records or gun records? A. Q. A. Q. Yes. All right. No, sir. Okay. Did you know that the inspectors were looking for Did you help him?
gun records? A. Doug mentioned it, I suppose, the next day or something
like that. Q. A. Q. Okay. So you don't know when the inspection concluded?
No, sir. Okay. But if the inspection concluded on March the 4th,
Foster - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2003, where were the guns? firearms? MR. MARTIN: MR. KUMIEGA: THE COURT: Your Honor -If he knows, your Honor. Where were Annette Johnson's
1434
He said he doesn't know when the If he can testify he knew where they
inspection was completed. were on March 4th. Q. (By Mr. Kumiega)
Do you know Where they were on March
4th, 2003? A. Q. A. Q. I gave them to Mr. Friesen the day after the inspection. And you watched him -Put them in the safe. -- put them in the safe? Good enough.
Now, you said that you're very good friends with Mr. Friesen? A. Q. A. Q. A. Q. A. Q. gun? A. I knew he had several machine guns. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603 Yes, sir. And did you know about his machine guns? One of these, I take it? Excuse me? The Sten machine gun. You were familiar with it? No, sir. You never were familiar with him owning a Sten machine
Foster - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. A. Q. A. Q. A. How did you know that? I suppose he told me. Right. Did you know about his silencers?
1435
I knew he had silencers also. And did you know about his extensive firearms collection? No. You didn't know about that? I mean, Mr. Friesen has firearms. I don't know that it
was a collection. Q. All right. Did you know he had a firearms -- that he had
a license to sell firearms? A. Q. Yes, sir. That, I knew.
Did you know at one time he had a license to sell machine
guns, silencers, sawed-off shotguns? A. Q. That, I knew also. Okay. Were you present when Mr. Hunter, or Mrs. Hunter
brought back the silencer? A. Q. A. Yes. Tell us about your involvement in that, please. Apparently, Doug had given Bobby Hunter, who is an Edmond
police officer, a silencer to use for testing and evaluation. During the compliance inspection, Mr. Friesen asked me if I would call Mr. Hunter and bring the silencer back, that the ladies that were doing the inspection needed to see the silencer. I called Mr. Hunter and couldn't get ahold of him.
Foster - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I called Mrs. Hunter and explained that Mr. Hunter had a
1436
silencer, and that they were having a compliance inspection and the inspectors needed to see it. She says, okay, let me go --
I suppose she either went to the police department or out to the range, picked up the silencer, and brought it to up to the office. Q. A. Q. A. All right. Yes. All right. And what did you do with the silencer? If he was She brought it to you; is that correct?
I don't remember if Doug was there or not.
there, I gave it to him. desk. Q. A. Q.
If he wasn't in, I put it on his
Did you consider Mr. Friesen an expert with firearms? How do you mean "expert"? Well, the same question I asked you in the grand jury. Just the common
Do you consider him an expert in firearms? terms. A. Q. He's knowledgable. All right. Yes.
He's more than knowledgeable; is that
correct? A. I don't know about that. MR. KUMIEGA: THE COURT: MR. MARTIN: MR. KUMIEGA: Your Honor, may I approach? Yes. Can you tell us what page you're on? Yes. Grand jury testimony, page 24,
Foster - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 again? starting at line 20. Q. (By Mr. Kumiega)
1437
Can you read that to yourself, sir?
Does that refresh your recollection of what you said in the grand jury? A. Q. Yeah. No. I mean, would you like me to read it? Does that -- I'm going to ask you from the
No.
podium, does that refresh your recollection what you told the grand jury? A. Q. Yes. Okay. Now, the question again is: Is Mr. Friesen
somewhat of an expert in firearms? A. There again, I don't think I said anything like that in I think
those -- that paragraph and the sentence following it. he -- it was a hobby, he was a gun enthusiast. expert witness there? MR. KUMIEGA:
Did I say an
Your Honor, may I approach the witness
I would like to have him look at page 25. THE COURT: Why don't you just ask if he testified to
that in the grand jury. Q. (By Mr. Kumiega) Mr. Foster, did you say that: I mean, is this
"I'm going to ask you this question:
his hobby, he's kind of a gun enthusiast?" And you said: "Right." And the question was: B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Foster - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. A. "He's a lawyer.
1438
Would it be fair to say he knows all
the regulations and all the rules and procedures in either selling, buying, or possessing firearms?" Do you remember how you answered? Yes, sir. I think, if I'm not mistaken, I replied in the
affirmative on that. Q. Right. And then the next question was:
"In fact, he's a self-proclaimed expert, would that be fair to say?" Do you remember your answer? No, sir. Your answer is: "I don't know if he would classify himself as an expert." My next question, though: "Well, you would, though, wouldn't you?" And you said: "Yeah." Okay. All right. So for buying, selling, and knowing the
regulations of firearms you would consider him an expert as you testified in January 24th, 2008; is that correct? A. Q. That would be correct. Okay. All right. And let me ask you this: Do you
remember when the government did the search warrant on June 10, B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Foster - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2004? A. Q. I was not there that day. Okay. Did you talk to Mr. Friesen about the search
1439
warrant on that day, or after that day? A. Q. Probably after that day. All right. And did you have conversations about the
government seizing Government's Exhibit 3.16, the Sten machine gun? A. Q. Yes. Now, again, you're still really good friends with him; is
that not correct? A. Q. Yes, sir. And did he tell you why the government seized the
firearm? A. Q. A. Q. A. Q. No. He never did? No. Okay. He said that they took the Sten, they took other guns. And you never asked him why and he never explained why
the United States went to his law office and took his machine gun? A. Q. No, sir. Okay. You would visit with him every day; is that
correct? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Foster - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. A. A. Q. A. Q. A. Q. him? A. Q. him? A. Yes, sir. Yes, sir. And even since the search warrant? I'm sorry? Even since the search warrant in '04, June of '04? Yes, sir. Okay.
1440
And you still have a business relationship with
And you still have a very active social relationship with
I don't know if you would -- it would be classified as an We have dinner a group of us maybe every month
active social. or two. Q.
And during that period of time, did he ever tell you why
the United States seized the serial number and -- or seized the machine gun and what his concerns are? A. No, sir. MR. KUMIEGA: THE WITNESS: (By Mr. Kumiega) No. Are you sure? Positive. MR. KUMIEGA: THE COURT: Nothing further. Nothing further. He -I'm sorry. You had something to say?
Any redirect?
Foster - Redirect/Holder - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. MARTIN: Q. BY MR. MARTIN: Q. MR. MARTIN: Very briefly. REDIRECT EXAMINATION
1441
Doug told you and you told the grand jury pursuant to Mr.
Kumiega's questioning that everything about that firearm was legal, didn't he, sir? A. Yes, sir. MR. MARTIN: THE COURT: Nothing further. Thank you, Mr. Foster. You may be
excused, and you're instructed to not discuss the testimony you've given here today with other persons that may be a witness in this matter. Call your next witness. MR. MARTIN: Zella Holder, your Honor. ZELLA HOLDER, called as a witness, having been duly sworn, testifies as follows: DIRECT EXAMINATION
Ms. Holder, please introduce yourself to the ladies and
gentlemen of the jury. A. Q. I'm Zella Holder. And tell them what do you do for a living, what's your
profession or occupation? A. I do stained glass. I have a stained glass studio.
Holder - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. And what do you do in that studio? We do commission work, teach classes.
1442
I have a retail
business of which I sell to hobbyists. Q. A. Q. Okay. Can you see over here?
Uh-huh. Do you know this -- stand up -- do you know this
individual? A. Q. A. Q. A. Yes, I do. And who is that? Doug Friesen. And how do you know him? I first met Doug whenever I had done a commission for
someone and they had recommended me to Doug whenever he had told them he had wanted some glass done. Q. A. Q. A. Q. A. How long have you known Doug? A good 20 years. All right. Have you ever done any work for him?
Yes, I have. And what type of work have you done? I've done from the stained glass to I've done etching,
which one of that is in his office. Q. A. Q. A. Are you familiar with Doug's office? Yes. And the one on North Classen here? Yes. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Holder - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. And is any of your work in that office? Yes, it is. Okay.
1443
Describe for the ladies and gentlemen of the jury
some of the type work that you've done in there. A. On the doors, there's four doors with etching of wolves,
and then there is an actual stained glass piece hanging in one of the windows. Q. A. Q. I couldn't hear you. It's a stained glass piece hanging in the window. Okay. And not only have you done work at the office,
have you done work at other locations for him? A. Q. Yes. Okay. In his home. And let me ask you: Approximately how many pieces
of stained glass would you guess you have -- is the right word "commissioned"? A. Q. A. Yes. Has he commissioned for you? Through the time, I couldn't count all of them because
he's had me do some for friends for gifts, and right now I'm doing all his cabinet doors and about eight windows in his house. Q. So I don't know. Probably around 20 pieces, at least. Are you familiar, relatively
Okay.
And let me ask you:
familiar with his house where he lives now? A. Q. Yes. On, is it Northwest 17th? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Holder - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. Yes. And have you ever been there before? Oh, yes.
1444
Do you recall an occasion when you happened to be in his
house when he was working on a firearm? A. Q. Yes. And could you tell the ladies and gentlemen of the jury,
first of all, how you remember that particular occasion? A. At that time, I was very, very busy with my stained glass
business, and I have a trailer park, and I had just for the first time that I -- which I never tried hard before, but I had filled it with people that do construction work. And I was
having to juggle these two jobs because I remember that it was going to be by the 1st of April I was going to be into worrying about mowing and doing all this that I hadn't done before. It's 11 1/2 acres and 50 spaces, so all of that was going to be consuming a lot of my time. So I was there to get things lined
out with what he was going to want done, because I knew I wouldn't have a whole lot of time other than that. Q. A. Q. And did you go to his house? Yes. All right. And when you went to his house, what
happened? A. I can't remember if I was kind of early or kind of late, And I told him, well,
but he was in the middle of a project.
Holder - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 please. Q. A. Q. A. Q. A. Q. (By Mr. Martin) Yes. And does this look familiar? Yes. And what is that? It's his little workshop. All right. Can you see this?
1445
go ahead and finish what you're doing, and he said well, just, come downstairs with me. Q. A. Where did you go? We went downstairs into his basement. MR. MARTIN: Can we pull up Government's Exhibit 3.7,
And can you tell us what occurred while you Let me stop you just a second. Is this
were in the basement? in the basement? A. Q. A. Yes.
Now, while you were down there, what happened? He was removing some paint from a metal piece. And I
asked him what he was doing that for, because I thought it was a good paint job myself, and he said that he was having to verify or find some numbers that was under the paint. Q. What kind of metal piece was it that he was removing
paint from? A. It was -- I don't know how you would describe it. It was
-- it could have been a car part for what I know.
But it was
Holder - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Q. Honor. THE COURT: Excuse me. Be sustained. -- it was a piece from a gun. Q. A. Q. Okay.
1446
And so he was removing the paint to find these numbers. All right. And did he say -- was he using any type of
mechanism to aid him in looking for anything? A. Q. Some kind of solvent. All right. What about light or magnification or anything
like that? MR. KUMIEGA: Objection to leading the witness, your
(By Mr. Martin)
Besides the solvent, what else was he
using? A. Q. A. He had a magnifying glass that had a light, and -Would you recognize that again if you saw it? I might. MR. MARTIN: (indicating). MR. KUMIEGA: to the diagram. THE COURT: Overruled. Do you recognize this, if you do, this There's a monitor right next Objection to leading again, your Honor, If we could zoom in right there
(By Mr. Martin)
device right here (indicating)? to you if that helps. A. Oh, okay. I see it now.
Yes.
Holder - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. A. What is that? That is the light. Okay. And what was he doing with that light?
1447
He was -- it was shining down over the piece, metal
piece. Q. A. Q. A. Q. Okay. And how was he looking at the metal piece?
Through the magnifying part. Through the top, the bottom of it, or -He was looking through the top. Okay. Is -- where is the light in relation to where he
was looking? A. The light -- let me think. I've got two or three of
them, so I'm kind of confused in what it looked exactly like. The light was on the top. Q. All right, ma'am. And what did he tell you about what he
was doing? A. He said that he was having to find these numbers because
of an inspection, he needed to verify the numbers. Q. All right. And how long did you all -- were you down in
the basement while he was doing that? A. Q. A. Q. Fifteen, 20 minutes. All right. Approximately. And would you recognize the device, the gun part again, Something like that.
whatever it was, if you were shown it? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Holder - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. I can't say I could do that for positive. Okay. All right. And let me ask you this:
1448
After you --
well, what brought the -- whatever was going on in the basement, what brought that to a conclusion? A. He had finished finding the numbers, and then that was
what he needed to do, and -Q. A. And what did you all do? And then we went on upstairs to finish doing the stained
glass thing. Q. All right. And you were there -- what purpose were you
there for? A. Q. A. Q. I was there to go over the stained glass thing with him. Okay. That was my reason for my visit. Be fair to say you had nothing to do with the location or
work relating to that -- what occurred in the basement? A. Q. No. Oh, no. You had -- did you have any idea what he was Was he planning on you
All right.
going to be doing when you got there? being there or not? A. I have no idea.
I mean, he was just waiting until I
could get there. Q. All right. And I believe you testified that you have
some, or have a mobile home park; is that right? A. Yes, I do. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Holder - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q.
1449
And does there come a period of time when you become very
busy because of that? A. Q. A. Yes. And approximately when is that? I figure starting April the 1st, that that's when things
have to get into play for the mowing and different groundwork and the trees and so on. Q. And I guess the reason for that question is, I asked you,
did I not, to try to in your mind give me your best guess as to when you may have been at Doug's house? A. Q. A. Yes. And what did you base that on? I based it on that time period because I needed to know,
get everything lined out that I was going to have to do with him in preparation because I wouldn't be having a lot of time after that, and that included my weekends. And with the things
I would have to order, the drawings I would have to do, because it was going to take me a while, and I would just have to work it in whenever I had time in between the trailer park thing. Q. 1st? A. in. Q. Okay. When you were there on this occasion and in the I could have, but it would have really been working it Would you have had time to go to his house after April
basement with the light that we've seen, were you pressed for B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Holder - Direct/Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. KUMIEGA: Q.
1450
time already, or was this something where you still had time to meet and visit with him? A. Well, I was kind of pressed for time. This was just
going ahead and getting this done, a time that both of us had. Q. All right. And how -- when would you characterize, as
best you can, when this might have occurred, month-wise? A. It would have been in March, and I am -- it would have
had to have been on a Sunday, but it would have probably been at least the middle of March or third week or something like that of March. MR. MARTIN: THE COURT: Thank you, Ms. Holder. You may cross-examine. Thank you, your Honor. CROSS-EXAMINATION Nothing further.
MR. KUMIEGA:
Now, Ms. Holder you said you have a trailer park and you
own a stained glass business; is that correct? A. Q. A. Q. A. Q. A. Yes. Where is your stained glass business located? Here in Oklahoma City. What's the address, please? 3308 South Walker. And how long have you had it? I have had it at that location, I've just been there a
year, but I've been in business here in Oklahoma City 13 years. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Holder - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. All right.
1451
So what's -- prior to moving to South Walker,
where did you have your other business at? A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. 89th and South Western. And the name of your shop, please? Z's stained glass. Were you there for all those 11, 12 years? Yes. Okay. And you also have a trailer park; is that correct?
Yes, I do. Where is that located at, please? It's in Luther. And how long have you had that? I've had it for 17 years. Okay. And is that how you earn your income, from those
two sources? A. Q. A. Q. Yes. Any other sources of income? No. Now, you said you've known Mr. Friesen for approximately
20 years? A. Q. Yes. And what's the nature of your relationship with Mr.
Friesen? A. Q. We're friends. Okay. Has he ever represented you in any contract
Holder - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 disputes or any legal actions? A. Q. A. Q. A. Q. A. Q. A. Yes. Can you tell us about that, please?
1452
We -- I have an eminent domain situation pending now. So he currently represents you? Yes. What about in the past? He has my family, but nothing particularly on me. I didn't understand your answer. He's represented my children, tickets and that kind of
thing. Q. A. Q. All right. But this is -Besides something other than tickets, what other type of
representation for your children? A. Q. A. Q. I think a DUI. Is that it? Four. Okay. So back in 2003, you went to Mr. Friesen's I think that's it.
And how many children do you have, please?
residence -A. Q. A. Q. Yes. -- as you just testified? Yes. And instead of going to his office you went to his
residence; is that right? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Holder - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Yes. Why did you go to the residence, not to the office? Because this is where the glass work was going to be
1453
done, and I measure and -Q. A. Q. So you were there for business purposes; is that correct? Yes. Have you ever been involved with Mr. Friesen socially
outside of -- here in Oklahoma City for dinner or visiting at his house? A. Q. A. We've gone to dinner. How often? Sometimes we've gone maybe twice a month, sometimes we Just depends on how
don't go to dinner maybe for six months. busy we are. Q. A. Q. A. Q.
And this is for the 20-year period of time? Yes. Uh-huh.
So you're more than casual acquaintances, you're friends? Yes. Okay. Now, while you were casual acquaintances prior to
February of 2003, did you know about Mr. Friesen's gun collection or gun activities? A. No, I really didn't. I knew he hunted, but I never got
into guns. Q. Okay. You were not aware about him having a license to
sell firearms? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Holder - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. No. Okay.
1454
Did you know about his collection of different
kind of, I guess, exotic weapons? A. Q. No. Not really.
So you don't know anything about his collection of
machine guns or silencers? A. Q. No. Okay. Now, you said that you showed -- showed up there
back in March, you think in March of 2003? A. Q. Correct. And you date that by your business activities; is that
correct? A. Q. Yes. What was so unusual about meeting Mr. Friesen in the
basement and working on the gun that you would remember that? A. time. Because I was so pressed for time at that particular The other thing that I -- that caught my attention on
this was because I do a lot of etching from glass to rock to metal and different things, it kind of -- I kind of remembered it because of the paint kind of over the numbers, because when I sign a lot of my commission work I engrave it, and a lot of times I may rub it with paint. And so this was along the same
category that he was doing, is one reason I remember it. Q. Okay. So you knocked on the door, he invites you to his
house, and he says, come on downstairs with me, I've got to do B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Holder - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 something. A. Q. A. Q. A. Q. A. Q. A. Yes. And you actually watched him do something? Yes. And he told you what he was doing? He said he was having to find some numbers -Okay. -- that had been painted and covered up. All right. Is that basically it?
1455
Did he tell you who covered up the numbers? I think he said he had painted it
I'm not sure on that.
and as preservative or whatever. Q. A. Are you just guessing, or are you sure? I'm not a hundred percent sure. I don't remember
exactly. Q. Okay. Now, let me ask you this: Who first contacted you
about your testimony today? A. Q. A. Q. A. Q. A. Doug mentioned it to me. How long ago? Maybe two weeks ago. Two weeks ago? Two or three weeks ago maybe. And where did that conversation take place? I was in his office because of this eminent domain thing
we've got going. Q. And under what circumstances did he bring that out, B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Holder - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 please? A.
1456
He asked me if I remembered that instance, and I said, And he said, what
well, I kind of had to think a little bit. all do you remember about it? Q. A. Q. A. Q. Okay.
And this happened just two weeks ago?
Or three weeks ago maybe. Did you write a report? No. So you didn't write down anything and hand it to Mr.
Friesen? A. Q. No. Who was there besides Mr. Friesen when he asked you that
question? A. Q. A. Q. We were in his office, no one else. Just you two? Yes. Okay. And that's the only time other than your testimony
today that you visited with Mr. Friesen about this? A. Let's see. I think we briefly mentioned it afterwards,
and he said if we go to court, he said, all you have to do is tell the truth. Q. A. Q. Okay. And that's about it. Okay. Now, you go downstairs, and do you see this
device, you called it a car part, but you think it's a gun? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Holder - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Yeah. Since you say it is.
1457
Can you describe it to the jury, please? I don't -- I'm just now looking at these. These are all
just kind of foreign to me. Q.
What is it you asked, now?
Can you describe the gun for the jury that you saw Mr.
Friesen work on? A. Q. part? A. Well, it wasn't like a whole gun. Huh. I don't know if It was just a part. What do you mean a part? It was not a gun, it was a
I can describe that exactly or not.
I remembered a long thing.
It was longer than that, I believe, but that wasn't the part that he was working on. Huh. I don't know. It might have
been something like -- oh, I don't know. -- no. Q. I don't know exactly.
Maybe something like
Okay.
Ms. Holder, so you go downstairs and you actually
see him working on a part? A. Q. Uh-huh. Yes.
And then he -- are you curious or are you wanting to do
business at that point? A. into. Q. A. Okay. And I knew he hunted, and I don't know all the kind of The guns didn't really, wasn't something I really got
guns and stuff that he has for any of that. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Holder - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Okay.
1458
When you went downstairs and he was working on it,
was he almost completed or did he just -- was he starting? A. Well, he had it set up where -- that he had started He sort of it had it in a holding pattern so
working on it.
that he could -- and he had everything ready and he started cleaning the spot. Q. A. Q. How long were you there? Fifteen, 20 minutes in the basement. How long did he take to find the serial number? Or did
he find the serial number already and was telling you about it? A. No. He found it, and actually I was probably doing more
of the talking and everything because I was relating to him because that, that's the kind of thing that I do, and I always teach it or I do it, but I never get to see anybody actually do something like that their self. you. Q. A. Q. A. Q. A. Q. All right. And what did he show you, please? And he say, well, I can show
There was some numbers or something that showed up. All right. And what did the numbers look like?
Just engraved, or lightly engraved in the metal. Okay. Yes. Now, Mr. Friesen's basement is in -- how would you And did you peer over in the magnifying glass too?
describe it? A. It's got a lot of tool stuff -B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Holder - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. A. Q. Is it in neat order? -- shelves. Is it neat or is it sloppy? No. It's neat.
1459
Okay.
And he told you the reason he's doing this is for
what reason, please? A. Q. He had to show the numbers for an inspector. Okay. And did he say what he was going to do once he
found the numbers? A. I guess -- I don't know remember, but he probably said
that -- well, I assumed that once he found these numbers, then he would show them to the inspector. Q. A. Q. A. Q. You assumed that. He may have. Okay. I think possibly he did. Did he seem very concerned that he was looking for the Did he tell you that?
numbers? A. He seemed to know that there was numbers there. It's
just going ahead and locating them. Q. Okay. But when you were there he found the numbers
already; is that right? A. Q. When I was there, while I was there he was cleaning it. So you weren't there when he was searching around, he had
found the numbers already, and then you watched him do B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Holder - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. something with the numbers? A. Q. A. No. He finished finding them when I was there.
1460
Oh, he was finished? No, he wasn't finished. He had started cleaning it, and
he finished cleaning it off, and he said, there they are. Q. Okay. Did he say anything about the firearm, where he
got it from? A. Q. A. No. Okay. No. No. Did he tell you about the nature of this lawsuit?
That it was because of some firearms, and that's
about as far as we went. Q. Okay. MR. KUMIEGA: the agent. THE COURT: (Brief pause) (By Mr. Kumiega) After that incident, and then from '03, Yes. Your Honor, if I may have a moment with
around February, March '03, until just recently, was there any other conversation about that gun? A. Q. No. Did you know about a compliance inspection other than
what he told you? A. Q. A. No. Did you know about the search warrant? No. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Holder - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q.
1461
But you had -- you've had conversations with him since
you saw him with the gun in the basement in February or March of '03? A. Q. Yes. I've had conversations with him since.
Did he ever tell you that the government took the firearm
back in June of 2004? A. Q. No. Did he ever tell you that he was under indictment by a
federal grand jury? A. Q. No. He never told you about the nature of this case or he's
being represented by a lawyer? A. Q. A. That he was represented by a lawyer? Uh-huh. Yes. He told me who his lawyer was, and that's who got
ahold of me. Q. A. Q. And when did that lawyer get ahold of you? Let's see. All right. I talked to him last Saturday. So for the whole period of time you were
unaware of this important thing that was going on in Mr. Friesen's life? A. Q. Yes. Other than the fact that in the meeting upstairs in Mr.
Friesen's office several weeks ago, three weeks ago, he said, by the way, Zella, do you remember when I did this and this? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Holder - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. A. Q. Yes. And took you a while to remember? Yes. Okay. How do you know he's telling the truth, Ms.
1462
Holder? MR. MARTIN: THE COURT: Objection. Objection will be sustained. What was his demeanor like when he
(By Mr. Kumiega)
found the serial number? A. Q. A. Q. A. There it is. And that's it? That's all he -- yeah. And then once he found it, what happened next? Then he said, well, I've got this done, now we can go
ahead and finish up what you've got to do so you can get on. Q. Okay. Did he tell you that he had other activities with
the inspectors that he needed to do, like look for records? A. Q. Oh, no. No.
Did he ever tell you that ATF is coming back and they
want some more stuff from me? A. Q. A. Q. A. No. Okay. Do you remember what type of solvent he used?
No, I don't. Do you remember what type of container it was in? I think it was in a can, I think. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Holder - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. A. Q. A. What kind of can? Just a, like, a quart size can. Commercial or -Oh, I don't know. Do you remember it was in a can? Uh-huh. Because he -- he tilted it to put it on his
1463
cloth. Q. A. And you -- can you describe the can for the jury? Just -- it would be a can similar like to a paint thinner
can that would be like -- I think it's quart size. Q. A. Q. for? A. I don't remember it. MR. KUMIEGA: THE COURT: MR. MARTIN: THE COURT: No. Ma'am, did he tell you this was a machine gun? I don't think so. No.
He didn't tell you what type of gun he was doing this
Nothing further, your Honor. Any redirect? No, your Honor.
Okay.
Ms. Holder, you may be excused, and
I would advise you you're not to discuss the testimony you've given here with other persons who may be a witness in this case. You may be excused. MR. MARTIN: THE COURT: Your Honor, may I approach briefly? Yes.
(The following was had at the bench, out of the hearing of B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
1464 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the jury:) MR. MARTIN: Defense will rest, and we renew our
previous motion for directed verdict of acquittal. THE COURT: All right. Rebuttal I've revised -- I'm
going to allow you to call Mr. Knopp as it relates that he was pounding the gun or something, and that's it, right? MR. KUMIEGA: THE COURT: is that right? MR. KUMIEGA: THE COURT: that's it. MR. KUMIEGA: THE COURT: Okay. Yes, sir. Yes. And I'll let you call Mr. Kelley;
Okay.
That the gun is in the same condition, and
I can find nothing in Ms. LeMaster's
testimony, other than she did say that the meeting was contentious and so forth. So who were you planning on calling
to say that the meeting was not contentious? MR. KUMIEGA: THE COURT: Mr. Kelley. I found
So he can testify to that.
nothing in Ms. LeMaster's where you tried to impeach her or questioned her testimony. MR. KUMIEGA: I was -- other than what I was saying
regarding contention, I was not going into anything else. MR. MARTIN: My objection on that, your Honor, is That's his case. He can do that
rebuttal is to rebut my case.
1465 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 in his case in chief. He's not rebutting my case with this.
Rebuttal is purely to rebut what has been presented in my case and LeMaster's hasn't been mentioned, that I recall. MR. KUMIEGA: According to 607 I can impeach my own
witness through rebuttal, that holds calling your witness -THE COURT: What's the purpose of it? Show that the government was not
MR. KUMIEGA:
overhanded, your Honor, that it was a very nice interview, and then later on she changed her mind. THE COURT: There is nothing in the testimony that she
changed her mind on anything. MR. KUMIEGA: THE COURT: Okay. Well, you read it and I haven't.
I couldn't find anything and, I wondered There was nothing in the
why we granted her immunity.
testimony she testified differently or had given any statements or anything. MR. KUMIEGA: THE COURT: question, as to why. MR. KUMIEGA: Just show the government was not Yes, sir. So that's my
I couldn't find anything.
heavyhanded, it was a very friendly meeting, a long meeting and she went away happy and satisfied with her statements to the ATF. That's it. THE COURT: MR. KUMIEGA: I don't see any purpose to that. Just shows we're not being heavyhanded.
1466 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 She said we were good cop/bad cop. THE COURT: I would say that if she had said something
and changed her statements or something else, but there was never any testimony about her changing her testimony, what she had given previous statements to. MR. KUMIEGA: THE COURT: Okay. So I don't see So I'll allow
I couldn't find anything.
any impeaching in that, or any relevance to it.
Mr. Kelley to testify to the condition of the gun, and Mr. Knopp that he didn't find it dented or whatever. MR. KUMIEGA: THE COURT: MR. KUMIEGA: witness, your Honor. MR. MARTIN: MR. KUMIEGA: And Mr. Kong.
And Mr. Kong. Mr. Kong is going to be a very lengthy He'll take an hour or so. On those tubes? Now, I gave you the list. It was of the
tubes and there was other things there that Mr. Savage testified about. THE COURT: I'm going to let you put on those other
two, and then I'm going to limit your conversation with Mr. Kong. His testimony wasn't lengthy. He didn't testify over an
hour on his direct. MR. KUMIEGA: THE COURT: Savage, you mean? So we're going to, we'll talk about
Okay.
it's after -- I'm going to let you put on these other two, then B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
1467 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603 we'll talk about it. (The following was had in open court:) MR. KUMIEGA: MR. MARTIN: THE COURT: Your Honor, may I approach again? Off the record. Yes.
(An off-the-record discussion was had at the bench:) THE COURT: MR. MARTIN: THE COURT: Mr. Martin. Yes, sir. Defense rests, your Honor.
Any rebuttal? Yes, your Honor.
Call your first witness. Yes, your Honor. The United States
MR. KUMIEGA:
would like to call Howard Kong. THE COURT: (Witness sworn) THE COURT: Mr. Kong, you were previously sworn before Mr. Kong, if you'll come forward, please.
you gave your testimony at the beginning of this case, and I would remind you you're under the same obligations that you gave when you gave your oath at the beginning of this trial. THE WITNESS: Yes, sir.
Kong - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. KUMIEGA: Q. you? A. Q. Yes. The one marked Exhibit 110 and 111. And you were present today during the HOWARD KONG,
1468
recalled as a witness, having been previously sworn, testified as follows: DIRECT EXAMINATION
Mr. Kong, you have analyzed those two tubes in front of
All right.
testimony of Mr. Savage; is that correct? A. Q. That's correct. All right. Can you give the -- obviously, you've Did Mr. Savage use a scientific method
testified in the past.
when he made those markings on those tubes? A. Q. He did not. All right. And what is a scientific method, please,
especially for those exhibits, please? A. Well, it's -- the scientific method is a standardized You
procedure to answer a question or to solve a problem.
would formulate a hypothesis, which is an educated guess at what the answer could be. You would further, by designing a
test that would give you the results that can help you answer the question. And after you do your test, you evaluate your
results and you would see if that fits your hypothesis or not. If it does not, then you need to figure it out what's wrong, B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Kong - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
1469
you would have to reevaluate and reformulate your hypothesis, and you may have to refine your testing procedure or your test itself. answer. And that did not happen here, and I don't think that's -that's not a -- the results of his test is not valid to draw the conclusions that he did regarding this gun here. Q. Mr. Kong, you generated a two-page, I guess really a And you would repeat the steps until you come to your
page, page and a quarter, or page and an eighth of a report regarding the test Mr. Savage did, or tried to do in this case; is that correct? A. Q. Yes. All right. One of the things that you mentioned is that Is that correct?
this test is invalid because of materials. A. Right.
He -- Mr. Savage said that the gun was made from
mechanical tubes, out of mechanical tubing, out of mild steel. That is an assumption; he doesn't know that. out and got tubes that are mild steel. Q. All right. And would that make the test invalid just on And he just went
that criteria alone? A. You have no materials. That's a variable that you have
to consider.
That would -- that would -- that would put the
results in question. Q. All right. The knowningness of the material; is that
correct? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Kong - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. That's correct.
1470
You said -- you had testified you had background as a
materials engineer at one time; is that correct? A. That's correct. My degree is in materials engineering,
and I worked as a materials engineer and metallurgist at the Naval Aviation Depot in Alameda, California for nine years. Q. Mr. Kong, you also said that the hardness of the tubes
are important to replicate the test; is that correct? A. Q. A. Yes. Can you tell the jury about that, please? Yes. The hardness is very important. It's an indication
of the strength of the material.
The strength of the material
is the mechanical property of metals that resist deformation. Again, there was an assumption made that they were similar. testing was done to determine whether their hardness are the same. Q. Is hardness an indication of the strength of the No
material? A. Q. Yes, that's correct. Okay. And is that a primary value or variable if you're
going to do some kind of test to compare a serial number on one of the firearms and serial number on the tubes? A. If I were -- if I were to perform a test to see if a dent
may occur on a tube, that is definitely a variable that I would consider. Again, this variable is unknown in this experiment.
Kong - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Okay.
1471
You heard Mr. Savage testify that he did the test
behind Mr. Friesen's law office on the porch using a hammer; is that correct? A. Q. Yes, that's correct. And is the application of force, is that important to
replicate if you want to do a test that complies or conforms with the scientific -A. Absolutely. The application of force is very critical in
determining whether you are exceeding the yield strength of the material or not. Let me explain. Metals will resist Once
deformation and will resist deformation up to a point.
you exceed that point when you apply a force to it that's greater than its, its yield strength, then it will deform. But
if you apply a force to it that's below it, then it will not deform, and you -- and that is a known property of the metal. And in the experiment here, an unknown force was used to make the test marks which dented the tubes. Q. So it's possible, then, if you used a lesser force, there
would be no deformation, possibly no deformation? A. Yes. It's possible if you use the force that's less than
the yield strength of the material, then it may not dent. Q. Okay. You also in your critique talked about underlying Can you tell the jury about that,
support and a mandrel. please? A. Yes.
Mr. Savage testified that in order to put an
Kong - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
1472
impression in a tube you need to put a mandrel in for support and when you do that you will not get the deformation that you observe here on these tubes. tubes, there was no support. punch to it. When he did the test on these He just applied the hammer to the
Now, he's comparing -- he's comparing to the
serial numbers that are impressed onto the receiver of this gun. And this receiver has internal components, one of which It's the big cylindrical heavy piece of
is called a bolt.
metal, and the dimensions of the front and the rear -- back end of the bolt is very similar to the ID of the receiver. support. Q. A. There is an area that has a cut-out -That is
All right. -- that could affect, could affect how much support it's But nevertheless, that's support. It's totally
getting.
different than the experiment that Mr. Savage did. Q. So let me ask you this then: Would a fair question be
that the bolt in this instance, on Government's Exhibit 3.16, could be considered like a mandrel? A. Q. Yes. Okay. Yes, it definitely can act as a mandrel. Now, when you looked -- when you looked how Mr.
Friesen -- excuse me -- when you look at the firearm, what configuration would the firearm be to put the serial number on the firearm, please? A. Q. I'm not sure what you mean by that. How -B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603 But --
Kong - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. -- if I were to put a serial number on this gun -Well, in the space where there is a purported serial
1473
number, how would it be done, please? A. Well, I would lay it down on some kind of flat surface
and I would -- I would take the punch and I would hit it with a hammer. And there's only certain positions that this firearm
can be set on a level surface, and one of which is like so (demonstrating) with the magazine housing flat with the table. And the serial number right now is basically at twelve o'clock in such a position. And that would be a logical position to
apply the hammer and the punch. Q. All right. You also -- in one of your critiques of Mr.
Savage's scientific methods, you also talk about another variable regarding the dies that he used; is that correct? A. Yes. That's another variable that he did not consider.
A brand-new die would have a sharp cutting edge and that would have a different effect than one that's been used many, many times over. The character on the die, that's the part that
makes the impression, may have been rounded off, and the force required to dent the tube may be different. Q. All right. In your discussion you also talked about the
halos, what Mr. Savage referred to as halos on Government's Exhibit 3.16; is that correct? A. Q. Yes. And you came to the conclusion, my understanding, that B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Kong - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 was not solvent; is that right? A. Q. A. It's very unlikely to be solvent. Can you tell the jury why, please? Sure.
1474
A solvent is a liquid that is used to dissolve The two types of
something and it evaporates very quickly.
solvents that Mr. Savage mentioned, acetone and methyl ethyl ketone, which is commonly called MEK for the first three letters, evaporate extremely fast. If you were to put, say,
like, you know, take an eye-dropper and put ten drops of the solvent on a flat surface, within a minute it would be all gone. That's how quickly they evaporate. In looking at the
halos around the fastener holes, it's a perfect circle that's around each one of the fasteners. And as you can see on the
gun, the fastener holes go all the way around the tube and each one of those have that perfect halo. And if solvents were
coming out of the threads you would not expect it to leach out in an equal manner distance. You set it on the table and the
liquid is leaching out it would -- because of gravity it's going to tend to go down and you'll get an uneven glob of reaction with the paint. So since I see that it's a perfect circle that's on each and every one of those fasteners, it's unlikely that it is caused by the solvent. quickly. And again, solvent evaporates very
You have to consider the source of the solvent also, If somebody had, say, wiped on the
where did it come from.
Kong - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 surface of the tube, okay, that solvent would have an
1475
interaction with the paint, and as the solvent is leaking out of the hole, it's going to react to it the same way. You may
not see a distinct pattern where you can view it in a halo that Mr. Savage described. Q. Mr. Kong, you were also present when Mr. Savage actually
took out the screws or rivets or whatever from the machine gun; is that correct? A. Q. I had an opportunity to look at it after he did. And was there something peculiar about the color that
made you think again why it's not a solvent? A. I removed the same two screws that he did, and I looked I saw a white powder, I did not
inside to see what was there.
see any rust that he testified to. Q. All right. You also were present when he testified about
how inaccurate your -A. Q. I'm sorry. I missed that.
You were also present in the courtroom sitting behind
there when you heard Mr. Savage testify that your test regarding the paint and the serial number was wrongheaded and was wrong. A. Q. Yes. All right. From listening to his testimony, have you Do you remember that?
changed your mind about finding paint as you did in Government's Exhibit -- if you can look at Government's Exhibit B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Kong - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 No. 9. A. No, I have not changed my opinion on that. I've not
1476
changed my opinion on that.
He was talking about how if you
were to stamp metal with paint on it, because of the character of the stamp it would -- it's like a V shape, it would just push all the paint out. Well, like I was saying, if you have
an old die, one with rounded edge, and you're hitting it perpendicular to the surface, it will just push the paint in. It won't necessarily take all the paint out. Q. All right. So you used a microscope and you found paint
in these grooves; is that correct? A. I -- I examined it with a microscope, and my -- and my
co-worker, Sarah Walbridge, did an analysis of the paint in the groove and one adjacent to it. Q. Okay. So here's a main groove and there's several other
grooves here; is that correct? A. Q. A. Q. Yes. Okay. Is that more than two stamps?
That's definitely more than two stamps. Okay. Mr. Savage also criticized you about your analysis
of firearms that were either made when the tube was manufactured, and he brought in photographs from a gun called a Benelli and a gun called a Heckler & Koch, H&K? A. I believe he brought in pictures of two serial numbers on I'm not sure what the other one
a Benelli, one was a shotgun.
Kong - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 was; it may have been a shotgun also.
1477 And then he showed a
serial number of an H&K rifle, Heckler & Koch. Q. All right. And would it be fair to say that those
manufacturers radically do new, I guess, technology to put serial numbers on firearms? A. I had an opportunity to look at those photographs. They
were not stamped on, they were laser-etched, it appeared to me to be laser-etched. Laser -- application of serial number by
laser is the latest technology and those, again, are high-end guns, and the mechanism in applying the serial number might be different than stamping. So the manufacturer may have their
own reasons why they wanted to coat it first before applying the serial number on there. Q. Is the laser application the newest rage in technology
for firearms? A. Q. Yes. Okay. It's high-tech. Now, you also heard testimony about that Sten
machine gun being called a Mark II SA, is that correct, or an S? A. Q. I believe Mr. Savage said it was a Mark II-S. All right. And have you determined, can you tell the
jury what a Mark II-S is, please, and if that Government's Exhibit 3.16 is a Mark II-S? A. A Mark II-S is a Mark II that's been converted, added,
with a silencer added to it, which would give it a longer tube B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Kong - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 at the end.
1478
My understanding is that a Mark II-S and a Mark II
have the same barrel length, and that's different than one that's a Mark III. And a Mark II, the difference between a
Mark II-S and a Mark II is that the Mark II-S has a silencer. Q. All right. So a Mark II-S is a silenced Sten machine
gun; is that correct? A. Q. Yes. And Mr. Savage then, his conclusion would be what, then,
on what this gun was built to be? A. If he's saying that this is a Mark II-S, then he's saying
this is intended to be one that's built with a silencer. Q. All right. Let me ask you this: You testified before
that the Government's Exhibit 3.16 has characteristics of a Mark III; is that correct? A. Q. A. Q. Yes. Have you changed your conclusions? No, I've not. Okay. Now, in your analysis, peer review is probably one
of your most important, I guess, fail safes; is that correct? A. Q. Yes. It's a quality control.
And what other quality controls do you use when you
looked at Mr. Savage's work in this case, please? A. Q. What other quality control did I use? What other quality controls did Mr. Savage -- let me A real scientist, a real gunsmith or gun
rephrase that.
Savage - Direct/Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. MARTIN: Q. Q.
1479
expert, what quality control issues would he have told the jury about? MR. MARTIN: Your Honor, I object to the nature of the Mr. Kumiega is assuming that.
question, "a real scientist." THE COURT:
Be sustained. Okay. What would an expert do, what
(By Mr. Kumiega)
quality controls would an expert do, sir, in this case, generally? A. He would have -- there would be parameters. He would --
in conducting a test like this, like the tubes, you would want to minimize all the variables that are present. There are just
too many ones in this particular test for it to be valid to draw the conclusion that he did. For instance, a very critical There is really no
variable is the application of the force. written record of how that was done. Q. Okay. MR. KUMIEGA: THE COURT:
I have nothing further, your Honor.
You may cross-examine. CROSS-EXAMINATION
I assume you brought for the jury examples of your tests
where you have taken tubes like what's been introduced as Defendant's Exhibit 110 and 111, that don't have dents in them? A. I don't believe that's an accurate test of the question
at hand. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Kong - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q.
1480
I assume you've brought for the jury tubes that you've
put serial numbers in that don't have dents; is that true? A. Okay. Are you asking me -- I'm not sure what you're
asking me. Q. A. Q. You told the jury -Yes. I'm sorry. Go ahead.
You told the jury you could do this without putting dents Where are your examples,
inside on top, like Mr. Savage did. is my question. did that? A.
Where are your tubes for the jury to see you
I did not say that's possible -- I did not say that I did
that, I said it was possible to do that. Q. A. Q. Where -I did not do the test because -So you assume that's possible, that's what you're telling
us, you assume that's possible because you've not done it; is that right? A. Q. A. Q. A. Q. I did not do the test because -Do you assume that's possible, sir? Yes. Okay. It may be possible. It may be possible. Okay. All right. You've never done
this and produced what you described for the jury; isn't that true? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Kong - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. That's correct.
1481
And you didn't videotape any of the testing you did, did
you, sir? A. Q. It's not in our protocol to do that. Well, Mr. Kumiega -- well, you were here while my client
-- excuse me -- while Mr. Savage testified, were you not? A. Q. Yes, I was. And you heard Mr. Kumiega ask him about whether or not he
videotaped, did you not, sir? A. Q. Yes, I did. And you are telling the ladies and gentlemen of the jury
we don't do that either? A. It's not -- it's not in our protocol to do that, and we
don't feel that it's necessary, that's why we don't do that. That's why we don't write it into our protocols. Q. We don't do that either, right? We don't videotape,
right? A. Who is "we"? We, the forensic science laboratory in San
Francisco does not do that? Q. A. Q. Right. Is that correct?
That's correct. All right. And as a matter of fact, these were flown out
to you Friday, and you had them up until, I guess -- I got them this morning, did I not? A. I don't know when you got them. I can tell you that
Kong - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
1482
those were flown out to me on Thursday, and they were returned here late Saturday. Q. Well, you were in the courtroom this morning when you saw
me get them, weren't you? A. Q. I saw you get them this morning. Okay. All right. Yes, sir.
And so you've had them to work on
them, and there's tests to determine the hardness of this, isn't there, sir? A. Q. A. Q. There's a way to do that. Did you do that? I did not do that. Okay. And you performed some stamping tests, did you Yes.
not, sir? A. Q. A. Q. A. I did not do that. Sarah Walbridge did, right? She did some stamping tests regarding to the paint. And what was the hardness of the metal that she used? Okay. I don't know the answer to that, because I didn't
do the test. Q. A. Q. Okay. And her test involved paint -You don't know the answer, you don't know the hardness;
is that correct? MR. KUMIEGA: interrupting. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603 Objection, your Honor. He's
Kong - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: THE WITNESS: Let him finish. The hardness is an indication of
1483
strength and its ability to resist deformation. not deforming the metal. Q. (By Mr. Martin)
Painting is
Did -- were you present when Mr. Erb
testified? A. Q. I was not. And you weren't present when he talked about the type of
tubing? MR. KUMIEGA: Objection, your Honor. He's talking
about another witness's testimony. THE COURT: witnesses. Q. This is an expert who can hear other
Not subject to the rule, Mr. Kumiega. You weren't present when he talked about
(By Mr. Martin)
the type of tubing he used to make these receivers out of, were you, sir? A. Q. I was not here. Okay. I was not here for that.
And is this mechanical seamless tubing, sir,
Defendant's Exhibit 110 and 111? A. Well, there's a number of machine marks on the ID. It
could very well be. Q. Okay. Let me ask you, sir: The -- there's an
instrument, and I'll get the name of it wrong here, that you can measure the thickness of this pipe. A. Thickness? Are you referring to what Mr. Savage calls a
Kong - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. A. Q. micrometer caliper? Q. All right.
1484
And did you measure the pipe in the -- tube,
excuse me -- in 3.16? A. Q. A. Q. A. The receiver. Okay. Yes, I did.
And what is the width of it?
Outer diameter is about one and a half inches. And that's not anywhere in this report, is it, sir? That was -- no, it's not. I didn't specify, I didn't
specifically write it in there what that is. Q. And what is the thickness of -- can you get more specific Can't you get scientific with me
than one and a half inches?
and say it's, like, you know, down to centimeters or whatever? Isn't there a specific measurement? A. I could, but I would have to look at my notes. I
don't -Q. Well, did you take the measurement of the bolt? MR. KUMIEGA: Your Honor, could Mr. Kong look at his
notes so he can answer the question? MR. MARTIN: THE COURT: I'm moving on, Judge. Yes. Did you take a measurement of the bolt?
(By Mr. Martin) Yes, I did.
And do you know what that is? I do. What is it? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Kong - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. It's about 1.36 inches. Smaller than the tube? It's smaller than the OD of the tube.
1485
It's also smaller
than the ID of the tube also. Q. The bolt, if I might, is this piece right here
(indicating), right -A. Q. A. Q. tube. A. Q. Yes. -- that I'm moving? Yeah. Okay. It's the shiny metal that's inside the tube. And it's obviously loose enough to move within the
It's spring-loaded, right? Yes, it is. And it's -- you certainly can move it.
So it's not so tight that if it was -- that it is a
mandrel in and of itself, is it, sir? A. Q. A. Q. It could act as a mandrel. You know what a mandrel is, sir? Yes. It's something that fits so tight that when you hit it
you will not bend the tube; isn't that true? A. Q. That's what it's used for. Yes.
And it's also used for a Sten III to form the tube,
right, as is evidenced in Defendant's Exhibit 112? A. In the manufacturing process to make this tube they may I don't know that for sure.
use a mandrel to do that. Q.
And the -- do gun manufacturers typically use a loose B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Kong - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 bolt as a mandrel? A. Q. No, they do not. Okay. They use a bolt as a bolt.
1486
And you testified about the location of the serial
numbers on Government's Exhibit 3.16; is that right? A. Q. Yes. And we don't know when those serial numbers were put on.
Would you agree with that, sir? A. Q. I agree with that. And we don't know what state that tube or that receiver
was in when those serial numbers were put on there, do we, sir? A. Q. We do not know that. We don't know if it was tube or it was partially put
together or not, or completely put together, we have no idea. Would you agree with that? A. Partially put together? You mean the gun itself or you
mean -Q. A. Q. A. Q. Correct. No, we don't know that. All right. The tube was probably already a tube. And I believe you testified -- I'm sorry. What did you
just say? A. You asked me if the tube was partially put together at
the time, and I said, well, I think you're referring to the gun, the tube is already a tube when the number is put on. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Kong - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Q.
1487
And we don't know if it was just a tube when the serial
numbers were put on, do we, sir? A. We don't know if it was a tube or if it was already a
completely assembled firearm when those numbers were put on. Q. I'm going to show you what's been previously marked as
Defendant's Exhibit 129 and 130, and ask you, sir, if you recognize those as photographs of those screws being removed or loosened from the end of Government's Exhibit 3.16. A. Q. Yes. They appear to be that.
And those are the halo marks that you were talking about;
is that right? A. Those are the halo marks Mr. Savage was talking about. MR. MARTIN: Your Honor, I move to introduction of
Defendant's Exhibit 129 and 130. MR. KUMIEGA: THE COURT: No objection, your Honor. Will be admitted. I believe you just testified that you
(By Mr. Martin)
saw those screws loosened and you actually loosened them yourself, right? A. Q. I did. And I believe you said, after you loosened them, you saw
white powder but no rust; is that right? A. Q. That's right. This is Defendant's Exhibit 130. And can you see the,
what is that, cotter key right there? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Kong - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. Looks like an allen wrench on a cap screw. All right.
1488
And this is the area that -- that is the cap
screw right? A. Q. sir? A. That's part of the halo that he was talking about. I was Yes. And do you not see discoloration and rust in that area,
referring to after you take the screw out, you look at the fastener hole, that's the area I was talking about. Q. A. Are you talking about this area here (indicating)? You have to take the screw completely out, and then you
look in there. Q. A. Q. You saw, so -I saw white powder, I did not see rust. Okay. This is Defendant's Exhibit 129. And this is kind
of a picture of the same area, right? A. Yeah. That was one of the pictures you showed me, right,
just a minute ago? Q. A. Q. A. Q. Right. Okay. Do you have a photograph with the screw out? I do not. You would agree with me that there is rust on that gun One of the other ones?
and rust by the halo areas? A. You know, I think in my notes I may have mentioned that B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Kong - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 there were very little rust on this gun.
1489 I can take a look at
it right now, because the photograph you're showing me is on the surface here and not inside. any. Q. A. On the outside of that gun? Right. Right here. This is the area that your Yes. Very little rust if
photograph shows, right in here (indicating). Q. A. Q. Right. I don't see rust. All right, sir. I'm sorry.
The -- this gun was seized July [sic]
10th, 2004? A. Q. Okay. And you didn't look at this gun for the first time until
February 15th, 2008; isn't that true, sir? A. Q. A. Very close to February 15, 2008. Yes.
That is when it was actually received by you? By the laboratory. Right. I looked at it maybe a week
or two weeks after that. Q. Okay. After my client had already been indicted; isn't
that true, sir? A. Q. I did not know when he was indicted. Well, if he was indicted February 5th, 2008, you wouldn't
have looked at that gun until after the indictment was returned? A. That would be correct. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Kong - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q.
1490
And relating to the dies that were used on that test, you
saw these this morning, didn't you, sir? A. Q. A. Q. A. Q. I did. And did you examine those? I looked at them for a few minutes. Yes, I did.
And they are relatively new dies, aren't they? They look like new dies to me. Not, as you testified to, as dies that have been used a
lot, right? A. I would not say that they are dies that were used a lot.
I would say that they are new dies. Q. A. Q. New dies? Yes. So that part of your conclusion that if they were old
dies they would make a bigger indentation with these, that wouldn't apply then, would it? A. It would not apply. But nevertheless, that is a factor Mr. Savage did have those dies
that you would consider.
available, but he did not have the dies that were used to make the same numbers that were on Exhibit 3.16. Q. A. Q. And neither does the government? No. The government does not either. Correct.
And so your tests weren't made with the dies that made
3.16, the -A. I do not feel that's an accurate test, therefore, I did B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Kong - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 not do any tests. Q.
1491
And although you testified about you assume you can put
serial numbers on seamless metal tubing without bending it, you've never done it, and that's an assumption; isn't that true? A. I've never done that, but according to the material
properties, there is -- a material has something called elastic property. When you apply a stress to it, it will stretch a
little bit, but if you don't exceed the yield strength of it, and you release the stress, you will go back to the shape it was in. That's resistance to deformation. And sure, there
will be stresses that are going to be below this yield point or yield strength, and it's quite possible that you could do that. Q. Tell the ladies and gentlemen of the jury then why you
didn't do that and bring that tube for them to see to prove the validity of the point you just made? A. There are so many variables involved in this test that
it's not practical to do that. Q. You were in the hearing this morning and you heard how
many ounces the hammer was, weren't you, sir? A. Q. I'm sorry? You were in the hearing this morning that was held
outside the presence of the jury, correct? A. Q. I was here this morning. Yes, sir.
And you heard the type hammer he used? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Kong - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. Yep.
1492
And you heard how he put it on an anvil, or how he put it
on a solid surface and how he hit it, did you not, sir? A. Q. A. I did. And the whole process took ten or 15 seconds, maybe? I do not have that information prior to coming here this I did not want to run out to the hardware store and That's not the way that
morning.
buy the equipment and do it at lunch. we do things. Q.
You wait until after somebody has been indicted before
you even do any test on the gun? MR. KUMIEGA: THE COURT: MR. MARTIN: THE COURT: (Brief pause) (By Mr. Martin) Thursday, those tubes were flown out to Objection, your Honor.
Will be sustained. May I have just a moment, your Honor? Yes.
California, right? A. Q. A. Yes. And you returned them I think you said Saturday? Well, the tubes were returned here on Saturday. I
returned them Friday afternoon. Q. All right. Did you perform any tests whatsoever on those
tubes? A. I did not. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Kong - Cross/Redirect 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. KUMIEGA: Q. MR. MARTIN: THE COURT: Nothing further. Any redirect? Yes, your Honor. REDIRECT EXAMINATION
1493
MR. KUMIEGA:
Mr. Kong, you did not perform any hardness tests on those
tubes; is that correct? A. Q. A. Q. A. I did not. And why not, please? Why didn't I perform the tests on those? Yes. I didn't see a need to. I looked at the -- I evaluated
the testing that was done on it, and I -- I looked at the gun, and basically the testing does not represent the conditions under which those numbers were put on the gun. Q. A. Okay. Go ahead.
Hardness testing is not a standard forensic science
laboratory test, it was a metallurgical test. Q. Okay. And you never had the opportunity to look at Mr.
Savage's report regarding his tests; is that correct? A. That's correct. I saw a transcript of his testimony, and I did not see a copy of his
I believe that was all I saw.
report until last night, but the report that I saw did not mention the results of his test or how this test was done. Q. Okay. And you are also testifying from your analysis
Kong - Redirect/Recross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. MARTIN: Q. A. Q. there is no rust on that firearm; is that correct? A. Yes. Well, in the area that we were talking about.
1494
There might be rust somewhere else on the gun, but -- and even if there was rust there, it's insignificant. MR. KUMIEGA: THE COURT: MR. MARTIN: Nothing further.
Thank you, Mr. Kong. May I look at -- may I just briefly your
Honor, look at something? THE COURT: MR. MARTIN: (Brief pause) MR. MARTIN: Very briefly, your Honor. RECROSS-EXAMINATION Yes. I may have one follow-up question.
Was Government's Exhibit 3.16 also shipped to California? Yes, it was. And did you perform any tests on that for hardness for
comparison to Defendant's Exhibit 110 or 111? A. I was evaluating the tests that he did. I do not want to
go down the road that he did, because that's not a -- it's not the approach to take to do that. Q. Okay. I'm going to ask it again very carefully, because
I didn't ask a thing about Mr. Savage. A. Q. Okay. My question was: Did you perform any tests on
Kong - Recross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
1495
Government's Exhibit 3.16 to determine the hardness of that tube for comparison to Defendant's Exhibit 110 or 111? MR. KUMIEGA: question. MR. MARTIN: MR. KUMIEGA: THE COURT: He didn't answer it. I believe he did, your Honor. Objection, asked and answered. Same
Objection will be overruled. Answer it?
THE WITNESS: THE COURT: THE WITNESS:
Yes. No, I did not do any tests on that when I mean, I'm sorry, when they
they came back to me last Friday. came to me last Thursday. Q. (By Mr. Martin)
So we don't know if they are the same
hardness or not; isn't that true, sir? A. That is right. MR. MARTIN: THE COURT: We don't know that. Nothing further. Thank you, Mr. Kong. You may be excused.
Call your next witness. MR. KUMIEGA: to call Tim Kelley.
Any other rebuttal witnesses? The state would like
Yes, your Honor.
Kelley - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. KUMIEGA: Q. A. Sir, can you introduce yourself to the jury? My name is Tim Kelley. I'm a special agent with the TIM KELLEY, called as a witness, having been duly sworn, testifies as follows: DIRECT EXAMINATION
1496
United States Justice Department Bureau of Alcohol, Tobacco, Firearms & Explosives. Q. A. Q. How long have you been working with ATF? Over 16 years. And back in January, excuse me, June of 2004, were you so
officing here in Oklahoma City? A. Q. A. Q. That is correct. And in the same capacity as being a special agent? That's correct. And currently you're assigned to a different area of ATF;
is that correct? A. Q. A. That is correct. Can you tell the jury about that, please? I'm assigned for the next two or three years with the The organization is called the JIEDO,
Department of Defense.
Joint Improvised Explosive Defeat Organization, dealing with the Counter-IED fight in Iraq and Afghanistan. Q. You said counter what? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Kelley - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. A. Counter Improvised Explosive Defeat Organization. You have a specialty then with ATF? With explosives. And what is that specialty, please?
1497
Once again, it's dealing with disposal and dealing with
explosive -- criminal issues dealing with explosives. Q. All right. You took custody of the Government's Exhibit
3.16 back if June 10, 2004; is that right? A. Q. A. Q. That's correct. Can you hold that up to the jury, please. (Complies) Okay. Is that the firearm you sized in your custody on
that day? A. Q. That is correct. And you are part of the chain of custody, or you're one
of the technicians that preserved the evidence on the day of the search warrant? A. Q. That's correct. All right. And the gun that you now see in front of you
on, today's date is September, I guess, 29, 2008, is that gun substantially the same as it was when you seized it back in June of 2004? A. Q. Yes, it is. All right. When you say substantially similar, what do
you mean by that, please? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Kelley - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A.
1498
Obviously, the gun is in the basic condition that it was,
though I will note that it has become more scratched as the case has gone on through being handled by witnesses in this case, being handled by the government, being handled by the defense, scratches have came on here. It is basically in the
same condition that it was the day in which we seized it. Q. When you talk about the same condition, you're talking
about the paint marks, or the lack thereof, on that firearm? A. Prior to testifying, I did review a lot of the I
photographs of the day that we executed the search warrant. would classify the gun was not in pristine condition the day that we took this, took this gun, though I will admit that a
lot of scratches have came onto the gun in the course of this investigation. Q. All right. Does the photograph do it justice, the day
you took them, or your agency took them on June 10, 2004? A. Q. I do not believe they do. You said a lot of scratches. Are you saying the
substance of the firearm has been altered? A. No, it hasn't been altered. But I never felt that the
photographs that were taken on the day of the search warrant did a real good justice to show some of the scratches on some of the back parts of the gun. Q. All right. So are you -- your testimony is regarding the What is it, then,
substantial -- the nature of the firearm.
Kelley - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. please, from June 10, 2004, to your testimony today? A.
1499
I believe it wasn't in pristine condition when we got it
and I definitely don't think it is today. Q. A. Q. A. Q. A. Is it the same, though? It is the same. Same condition? Same condition. Other than? Other than there is more scratches on it. MR. KUMIEGA: THE COURT: Nothing further, your Honor. Same gun.
Mr. Kumiega, the Court is going to allow
you, under 607, to very briefly go into the other matter if you want. MR. MARTIN: objection? THE COURT: I will note your objection. It's up to Your Honor, could the record note my
you whether you want to. MR. KUMIEGA: THE COURT: Very briefly, your Honor. Very briefly. Yes, sir. You were present during an interview
with Ms. LeMaster also known as Ms. Dennis; is that correct? A. Q. A. That is correct. And where did that interview take place, please? Took place at the ATF office. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Kelley - Direct/Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. MARTIN: Q. Agent Kelley, I'm assuming -B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603 Q. All right.
1500
How would you characterize the -- first of
all, who was present during that interview, please? A. Myself, you, prosecutor Mr. Kumiega, Delbert Knopp, and
we had Linnette Tarver, the secretary for the U.S. attorney's office there for a short period of time. Q. A. Q. How long was this meeting, please, or interview? I couldn't image it went over an hour. All right. And can you tell the ladies and gentlemen of
the jury what type of meeting was it, please? A. It was a fact-finding meeting. It was a non-hostile type
of interview.
We were looking for facts, looking for dates to
just kind of corroborate previous statements and dates involving this case. Q. A. Was the meeting in any way contentious? By that you mean hostile, no. It was not a hostile
interview at all. Q. What was Ms. LeMaster's or Ms.Dennis' demeanor during
this interview? A. Actually, she was quite helpful. This was the third time
in which we had dealt with her. MR. KUMIEGA: THE COURT:
She was very helpful.
Nothing further, your Honor.
You may cross-examine. CROSS-EXAMINATION
Kelley - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. MR. MARTIN: THE COURT: (By Mr. Martin) May I approach, your Honor? Yes. This is Government's Exhibit 3.1.
1501
What
is this portion of the gun, what is that thing there called? A. I don't know the technical term for it, but it's
obviously there to deflect some of the casings when they are ejected from the firearm. Q. Okay. A casing deflector or shell deflector or
something? A. Q. A. Q. A. Q. Sure. Sure.
And does it appear to be bent or broken or cracked? It is bent. Okay. Does it have -- does it have a crack in it?
Yes, it appears that. Okay. And you'll agree with me, it was not in that
condition when you got it on June 10th? A. That is correct. I reviewed the photographs and it was
not bent. Q. A. As a matter of fact, there's a -- and it wasn't cracked? If I was wasn't bent, it wasn't cracked. Yes, that's
correct. Q. 37. This is what has been introduced as Defendant's Exhibit Can you see this right here, sir, the -- what did you just
call that? A. Yes. I do see that.
Kelley - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q.
1502
And that purports to be a picture taken on February 14th, That was some three or four years
2008, by a Gina Kishur.
after the search, wouldn't that be right? A. Q. That would be correct. Okay. And would that accurately represent how that
deflector looked then if that date is right in February of 2008? A. that. Q. Okay. And that deflector that you have there is If you say that photograph was taken, I would agree with
substantially different; wouldn't you agree, sir? A. Q. A. Yes, I would. And we don't know how it got that way? No, I do not. MR. MARTIN: THE COURT: Nothing further. Agent Kelley, you may be excused. Thank you, sir.
THE WITNESS: THE COURT:
Any other witnesses? Agent Knopp, your Honor. Agent Knopp, you've been previously
Okay.
sworn in this matter, and I would just tell you you're under the same oath that you gave when you gave your previous testimony. THE WITNESS: THE COURT: Yes, sir.
You may proceed.
Knopp - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. KUMIEGA: Q. MR. KUMIEGA: Thank you, your Honor. DELBERT KNOPP,
1503
Recalled as a witness, having been previously sworn, testified as follows: DIRECT EXAMINATION
Agent Knopp, you went out to Mr. Erb's business during
the course of this investigation; is that correct? A. Q. Yes. On two separate occasions.
And you photographed certain tubes and devices he had out
there; is that correct? A. Q. Yes, I did. And he manufactured from your understanding the E series
of tubes called the Mark II; is that correct? A. Q. A. Q. A. Q. That's correct. And you looked at the birthing document? Yes. I had it.
Excuse me? Yes. I had it.
And have you tried to determine where each of the
firearms went? A. Yes. We traced some of them down and tried to examine
some of them, and we took photographs, that type thing. Q. All right. When you examined a long tube in Mr. Erb's
business in, I think it's Fredericktown, Pennsylvania; is that B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Knopp - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603 correct? A. Q. Yes.
1504
Was that in the stream of commerce back in -- when you
did that investigation, I believe, in 2006? A. That was November of 2006. He had several -- a couple of They had not
tubes left there, and they were in his business. been sold. Q. Okay. And let me ask you this:
You heard testimony
about you hitting that machine gun at the conclusion of an interview with Mr. Savage; is that correct? A. Q. A. Q. A. That's correct. Did you damage or alter the gun in any way? No. Okay. Why did you do that, please?
When he left I attempted to put the bolt back into the
gun and I got it slightly off, and it got stuck. Q. A. desk. Q. A. Did you damage the gun in any way? Not that I'm aware of. MR. KUMIEGA: THE COURT: No. Okay. Only way I could get it back out was hit on top of the
Nothing further.
You may cross-examine.
Knopp - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. MARTIN: Q. CROSS-EXAMINATION
1505
When mr. Kumiega was just questioning you, I believe you
were testifying about, this is a first picture in 52, this is the second one. see their face? A. Q. A. Q. I believe it's Robert Murphy. Is that an ATF agent? He's a DEA agent. DEA agent. And did you or someone at your direction take Who is standing in that picture that you can't
the picture depicted in these? A. Q. I believe I took it. Okay. And those pictures are taken, are they not, at
Erb's -A. Q. A. Q. A. Q. Yes, they are. -- in Pennsylvania? Yes. Is that correct? Yes. Okay. And have you seen the -- I'm through with that --
have you seen the video at the end of the examination by -- Mr. Savage's was videoed, was he not? A. Q. sir? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603 Yes, he was. Okay. And he didn't know he was being videoed, did he,
Knopp - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. Not the first occasion. All right. And have you seen that video, sir?
1506
Yes, I have. And at the end of it do you not take the gun and strike
it on the desk? A. I didn't see the whole video, I saw portions of it, and I
didn't see that part, but, yes, I did strike it on the desk. Q. A. Q. A. And his testimony about that was accurate then? Yes. How many times did you strike it, sir? I can't recall. MR. MARTIN: THE COURT: your seat. Anything further, Mr. Kumiega? MR. KUMIEGA: With that, your Honor, United States has Probably two times maybe. Nothing further. Thank you, Agent Knopp. You may retake
no other witnesses to put on. THE COURT: Government rests? Yes.
MR. KUMIEGA: THE COURT: MR. MARTIN: THE COURT: (Brief pause) MR. MARTIN: THE COURT:
Mr. Martin. May I have a moment, your Honor? Yes.
No surrebuttal, your Honor. Defendant rests?
1507 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. MARTIN: (Brief pause) THE COURT: Ladies and gentlemen of the jury, we're You've now heard all the Yes, sir.
going to recess for this evening.
evidence in this case, but it's very important you not reach any conclusions until you've heard all my instructions on the law and the closing arguments of counsel. We've worked some
but we had to wait basically until the evidence was in to know exactly what law applies and so forth. And so the attorneys
and I, we're going to work in the morning to work out the instructions and the difference in views on what instructions the Court ought to give, and we're going to work that out. And
I'm going to have you come back at one p.m., and we'll then get the case submitted to you with my instructions on the law and the arguments of counsel. With that, again, don't discuss the case with anyone, allow anyone to discuss it with you, as I said, don't reach any conclusions until you've heard my instructions on the law and closing arguments of counsel. Have a good evening, and we'll see you tomorrow afternoon at 1:00. All rise while the jury exits. (The jury exits the courtroom, after which the following was had in open court:) THE COURT: Mr. Martin, you renewed your Rule 29
1508 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 motion at the end of the government's case, and the Court reserved ruling until the rebuttal evidence, and the Court, based upon the standards that the Court has to view the evidence in the light most favorable to the government, or in most favorable light to the person against whom the motion is made, the Court will overrule the Rule 29 motion at this time as to all counts. We need to meet in the morning. instructions. I would like to get
Just visiting with Ms. Williams, I guess you did
meet briefly with her. MR. MARTIN: THE COURT: Yes, sir, we did. And I understand there's one or two But --
differences of opinion on certain instructions. MR. MARTIN: THE COURT:
That's a fair characterization, Judge. Okay. But I would like to get all of
those ironed out, and I'll visit with her some this evening to see exactly what those major differences are, and so we can get this submitted to the jury at 1:00. a.m. in the morning in chambers. MR. MARTIN: Your Honor, I know it's going to be hard If So we need to meet at nine
to believe, but I actually have an 8:00 court appearance. I'm -- I might be here at ten after 9:00, but it's an 8:00 municipal court, and I might be a few minutes late. can be here, she's a lot smarter than me anyway. THE COURT:
Kendall
I mean, I think, I think you're right.
1509 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603 I hereby certify that the aforegoing is a correct transcript from the record of the proceedings in the above-entitled matter. __________________________ B. Jeanne Ring, RDR Judge. THE COURT: With nothing further, we'll be in recess And, counsel, if you can be in Martin. MR. MARTIN: THE COURT: I know what you mean, she's smarter. I'm not going to disagree with you, Mr.
So you can be here at 9:00 and we'll try to get
started, at least get started and iron out and make sure we know exactly what the differences are. And I hope you get your traffic tickets paid off, Mr. Martin. MR. MARTIN: They are putting me on a payment plan,
until one p.m. tomorrow. chambers about 9:00.
(Court stood in recess until September 30, 2008.
For
further transcription, see Volume VII of this transcript.) * * * * * REPORTER'S CERTIFICATE

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1 2 3 4 5

UNITED STATES OF AMERICA, Plaintiff,

vs. LARRY DOUGLAS FRIESEN,

Case No. CR-08-41-L

versus Larry Douglas Friesen. their Daubert hearing? MR. KUMIEGA:

Yes, your Honor.

I would like to have him sit in here since

I have picked up something over the weekend, so I

CONTINUED DIRECT EXAMINATION

screw. Q. As a matter of fact, that's a distinction relating to a

show me that three minutes ago.

hear some testimony on it.

Savage - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. (By Mr. Martin) What is Defendant's Exhibit 112?

right off the bat.

Savage - Direct/Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. KUMIEGA: Q. A.

I examine it. to crack. Q. A. Q. A.

first report that Mr. Savage -- here. CROSS-EXAMINATION

You know, Mr. Savage, it's my understanding you proffered

Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. Pardon me?

manufacturer, sir. Q. Okay. So you're going to testify to your expertise in

You also talked about,

-- the physical characteristics of what you're talking

There's no test. I can even get a manufacturer's license to make

to go through a background test and everything.

(By Mr. Kumiega)

examination. Q. A. All right. And what were the findings, please?

My findings are -- show me that that is an Erb II that

It says quite a bit.

My report says that -- talks about

report, please? A. That is a -- my findings are --is that that is an Erb II

United States. Q. A. Q. A. Q. Okay. Have you gone to gunsmithing school?

Of course. All right. So what did you learn there, please?

In order to learn the craft, like any other craft, you

Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. I don't remember. Okay. It was near 15 years ago.

Fifteen years ago.

And how many times did you

or three times a week? A. Q. No, sir. No, sir.

Can you give us a straight answer and tell the Court

1993, '94, I moved to Mississippi.

From Mississippi, I moved

Your Honor, can you ask the witness to

To the best of my ability, I believe it

(By Mr. Kumiega)

experience there. Q. Okay. Were they a business that could confer a

So while you were employed making, I guess, stuff

And can you tell me what years you were there,

Mr. Savage, you have been interviewed several times by

Can I not explore his bias to show that

Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. THE COURT: Let's do it very quickly.

(By Mr. Kumiega)

Have you been interviewed by people who

Was to show the lack of a testing method by Firearms

I was a technical adviser on a case, United States v.

Savage - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. A. Q. A. No, I did not. Okay.

Did you make another documentary called The Gang?

I don't understand. THE COURT:

Did you participate in a documentary,

procedure at Firearms Technology Branch.

(By Mr. Kumiega)

you videotape yourself? A. Q. A. Q. A. Q. Did I? No, I did not.

You asked if it was correct and

The Lock Shop -- excuse me -- The Cop

You haven't gone to any gunsmithing schools, as you said,