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U.S.

Department of Justice
Bureau of Alcohol, Tobacco,
Firearms and Explosives

www.atf.gov

December 23, 2015

REFER TO: 2015-0677

Mr. David T. Hardy


8987 E. Tanque Verde
PMB 265
Tucson, AZ 85749
Dear Mr. Hardy:
This is in response to your March 12, 2015, Freedom of Information Act (FOIA) request to the
Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). Your request is part of ongoing
litigation with this agency. This is the first release of documents that ATF has provided to you in
response to your request. We are providing documents responsive to items 3, 4, and 5 of your
request. This is the second release of documents that ATF has provided to you. We will
continue to provide you more documents on a rolling production.
Certain material has been withheld from these documents pursuant to 5 U.S.C. 552(b)(3),
5 U.S.C. 552(b)(5), 5 U.S.C. 552(b)(6), and/or 5 U.S.C. 552(b)(7)(C).
For this release, we have processed a total of 1,044 pages of potentially responsive material. We
are releasing 894 pages in full, and we are releasing 126 pages in part. We are withholding 24
pages in full, 2 of which are non-responsive material. Each page of this production indicates
whether it is being released in full (RIF) or released in part (RIP). Individual redactions
identify the exemption pursuant to which the redacted material has been withheld. If pages were
withheld in their entirety, a deletion sheet is included noting the reason for the withholding.
Sincerely,

Stephanie M. Boucher
Chief, Disclosure Division
Enclosures

Case 1:09-cv-00192-GET Document 43 Filed 10/28/09 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT


FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
CASE NO.
vs.
1:09-CV-0192-GET
ONE HISTORIC ARMS MODEL 54RCCS
"7.62X54R CALIBER CONVERSION
SYSTEM" MACHINEGUN, SERIAL NO. Vl,
Defendant .
PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

COMES NOW the United States of America,

Plaintiff in the

above-styled civil action, pursuant to Rule 56(c) of the Federal


Rules of Civil Procedure, and he reby moves the Court for summary
judgment, because the evidence shows that there is no genuine issue
as to any material fact and that Plaintiff is entitled to judgment
in its favor as a matter of law .
As required by Local Rules 7 .1 (A) ( 1) and 56 .1, this Mo tion is
accompanied by a Statement of Material Facts as to Which There is
No Genuine Issue to be Tried and a Memo randum of Law, which c i tes
supporting authority.
In support of this Motion, Plaintiff re l ies upon any and all
pleadings, depositions, answers to interrogatories, admissions, and
affidavits

on

file

with

the

court,

as

well

as

the

followi ng

Exhibits, which are attached to Plaintiff's Memorandum of Law:

944

RIF

Case 1:09-cv-00192-GET Document 43 Filed 10/28/09 Page 2 of 4

Exhibit 1
Exhibit lA
Exhibit 2

ATF letter to Claimant dated June 10, 2008


(From Deposition of Max K. Kingery, Exhibit 2)
Unsigned copy of Exhibit 1, provided for
legibility of text and photographs.
ATF letter to Claimant dated July 11, 2008
(From Exhibit 4, ~~ 8-9, supra.)

Exhibit 3

Declaration of Firearms Enforcement Officer


Max M. Kingery

Exhibit 3A

Curriculum vitae of Max M. Kingery

Exhibit 4

Declaration of Chief, Firearms Technology


Branch John R. Spencer

Exhibit SA

Video of
Defendant
Range.

April 15,
at DeKalb

2009, test firing of


County Police Firing

Exhibit SB

Video of
Defendant
Range.

April 15,
at DeKalb

2009, test firing of


County Police Firing

Exhibit 6

Undated videos (3) provided by Claimant during


discovery

Exhibit 7

Claimant's
Response
to
Plaintiff's First
Requests for Admission (Doc. 14).

Exhibit 8

Letter from Claimant's president dated June


16, 2008. (Doc. 5, ~ 6).

Exhibit 9

Claimant's ATF
Exhibit 8) .

Exhibit 10

ATF Rulings 82-2, 82-8 and 83-5

Form

(From Spencer Depo.,

WHEREFORE, Plaintiff prays that its Motion be inquired into


and granted.

945

RIF

Case 1:09-cv-00192-GET Document 43 Filed 10/28/09 Page 3 of 4

This 28th day of October, 2009.


SALLY QUILLIAN YATES
ACTING UNITED STATES ATTORNEY

Isl G. Jeffrey Viscomi


G. JEFFREY VISCOMI
ASSISTANT UNITED STATES ATTORNEY

Isl Harry R. Foster, III


HARRY R. FOSTER, III
SPECIAL ASSISTANT
UNITED STATES ATTORNEY

Georgia Bar No. 289074


600 United States Courthouse
75 Spring Street, S . W.
Atlanta, Georgia 30303
( 404) 581-6036
jeffrey . viscomi@usdoj.gov

Georgia Bar No. 270620


Bureau of Alcohol, Tobacco,
Firearms and Explosives
2600 Century Parkway, N. E.
Suite 335
Atlanta, Georgia 30345
(404) 417-2696
harry.foster@atf .gov
Attorneys for Plaintiff

946

RIF

Case 1:09-cv-00192-GET Document 43 Filed 10/28/09 Page 4 of 4

CERTIFICATE OF SERVICE

I hereby certify that , on October 28, 2009 , I electronically


filed PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT with the Clerk of
Court using the CMIECF system, which will automatically send email
notification of such filing to the following attorneys of record:
John R. Monroe
H. Monroe Whitesides, Jr.

Isl G. Jeffrey Viscomi


G. JEFFREY VISCOMI
ASSISTANT UNITED STATES ATTORNEY
Georgia Bar Number 289074
600 UNITED STATES
75 SPRING STREET,
ATLANTA, GA 30303
Telephone:
( 404)
Facsimile :
( 404)

COURTHOUSE
S.W.
581-6000
581-6181

947

RIF

Case 1:09-cv-00192-GET Document 43-1 Filed 10/28/09 Page 1of10

IN THE UNITED STATES DISTRICT COURT


FOR THE NORTHEJm DISTRICT OF GEORGIA
ATLANTA DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
CASE NO .
vs.
1:09-CV-0192-GET
ONE HISTORIC ARMS MODEL 54RCCS
"7 . 62X54R CALIBER CONVERSION
SYSTEM" MACHINEGUN, SERIAL NO. Vl,
Defendant.
STATEMENT OF MATERIAL FACTS AS TO WHICH THERE
IS NO GENUINE ISSUE TO BE TRIED
1.

On

April

21,

2008,

Historic

Arms,

LLC,

(" Claimant")

Federally-licensed firearms manufacturer, filed a Notice of


Firearms

Manufactured o r

Impo rted,

Bureau

of

Alcohol,

Tobacco, Firearms and Explosives ("ATF") Form 2 ("Form 2") .


(Exhibit 9).

2.

In

the

Form

2,

Claimant

provided

notice

that

it

had

manufactured one Histo ric Arms Model 54RRCCS 7.62x54R Caliber


Conversion System machinegun, serial number Vl, ("Defendant")
as a rifle having a barrel o r barrels of less than 16 inches
in length.

3.

On

that

(Exhibit 9) .

same

day,

Claimant's

President,

Lennis

Savage,

submitted the Defendant t o ATF's Firearms Technology Branch

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Case 1:09-cv-00192-GET Document 43-1 Filed 10/28/09 Page 2of10

("FTB") 1

in

evaluation.

4.

Martinsburg,
(Do c . 5 ,

<JI

West

Virginia

for

technical

3) .

Claimant's President also submitted a letter dated April 21,


2008, in which he asked that FTB verify that the Defendant:
1) Is "[d]esigned to be fired from the shoulder,"
2) "Has a barrel length of less than 16 inches," and
3) Is "[d]esigned for exclusive use in MAC type machineguns as
a caliber conversion system."
(Doc . 5,

5.

Upon

its

<JI

3) .

receipt

by ATF,

the

Defendant

was

assigned

to

Firearms Enforcement Officer Max M. Kingery ("FEO Kingery")


for classification. (Vasquez Depo., pp. 19-21).

6.

FEO Kingery conducted an examination of the Defendant and


determined that it was a modified PK2 type machinegun; however

FTB is the office within ATF responsible for providing


determinations, technical reports, correspondence, and training
material concerning the identification, origin, function, and
classification of firearms, ammunition, and implements of war
under the GCA, NFA, and the Arms Export Control Act, 22 U. S.C.
2778.
2

The PK, or Pulemet Kalashnikova, machinegun was o riginally


designed for the Soviet military in the 1960s and has
subsequently been manufactured in several variants, including the
PKM, by the Soviet Union, its subsequent incarnations, other
communist countries and satellite states.
2

949

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Case 1:09-cv-00192-GET Document 43-1 Filed 10/28/09 Page 3of10

it

was

submitted

without

trunnion/stock mounting block3

7.

FEO

Kingery's

examination

trigger

group

and

rear

(Exhibit 1, pp. 2 and 7).

specifically

found

that

the

Defendant was comprised of the following components:


1) a Modified PKM-type receiver, mated with a MAC-type upper;
2) an unmodified PKM-type top cover and feed-tray assembly;
3) a newly manufactured plastic forearm;
4) a shortened PKM-type gas system;
5) a barrel approximately 15-3/4 inches long;
6) a modified PKM-type machinegun bolt carrier assembly;
7) a PKM-type bolt assembly.
(Exhibit 1, p. 1).
8.

During deposition, Claimant's President stated the origin of


the receiver 4 used to construct the Defendant and verified

A trunnion, as commonly known in the firearms industry, is


the mounting block where a barrel is attached to the receiver,
when the receiver itself is not threaded to accept a barrel. The
PK type machinegun, being of Soviet design and origin, also
contains what the Soviets called a "rear trunnion." On the PK
type machinegun, the rear trunnion is designed to contain the
recoil mechanism, serve as an attachment point for the rear stock
assembly, and to house the feed tray locking latch.
4

Specifically, a "frame" or "receiver" is the "part of a


firearm which provides housing for the hammer, bolt or
breechblock and firing mechanism, and which is usually threaded
at its forward portion to receive the barrel." 27 C.F.R.
479.11.
It is also that portion of the weapon bearing the
firearm's serial number. See 26 U.S.C. 5842(a); 27 C.F.R.
479.102.

950

RIF

Case 1:09-cv-00192-GET Document 43-1 Filed 10/28/09 Page 4of10

that the Defendant fired a 25-round test belt during test


firing at Claimant's range prior to its submission to ATF.
(Savage Depo., pp. 98-106 and Exhibit 6).

9.

Claimant ' s president stated that the Defendant's receiver was


a Wiselite semiautomatic PK receiver that he modified by
removing the lower shelf, which is where the machinegun bolt
blocking bar is located5

(Savage Depo., pp. 106-109; Kingery

Depa., p. 151, lines 13-16).

8.

FEO Kingery determined, and the Claimant confirmed that the


Defendant fires from an open bolt 6 and utilizes a fixed firing
5

A machinegun bolt blocking bar is a rectangular solid


metal bar (approximately ~ inch wide, by approximately l~ inches
long, by approximately 1/4 inch high) that is attached
permanently attached by fusion welding at approximately the
middle of the shelf on a semiautomatic PK receiver. ATF requires
all semiautomatic PK receivers to have a machinegun bolt blocking
bar to prevent the functioning of a PK machinegun bolt carrier
and bolt and to prevent automatic firing.
6

Firing from an open bolt refers to a method of operation


by which a machinegun's bolt is retracted to its rearmost
position and is held in such position until the trigger is
activated. Upon activation, normally the trigger acts on the
sear, releasing the bolt, which is propelled forward by the
action of a spring. The bolt strips a round of ammunition from
the clip or belt and forces the round of ammunition into the
chamber where a fixed firing pin, located on the bolt face,
ignites the primer firing the round. The reco il or gas generated
by the ignition of the gunpowder forces the bolt back to its
rearmost position and the cycle repeats automatically until the
trigger is released and the sear engages the bolt, the machinegun
malfunctions, or all ammunition is expended. Since 1982, ATF has
held that all firearms that fire from and open bolt are
4

951

RIF

Case 1:09-cv-00192-GET Document 43-1 Filed 10/28/09 Page 5 of 10

pin' .

10.

(Exhibit 3,

22 and Exhibit 7,

9).

After conducting his examination of the Defendant, FEO Kingery


concluded that, in addition to containing a frame or receiver
of a machinegun, the Defendant shot automatically more than
one shot, without manual reloading, by a single function of
the trigger 8

11 .

(Exhibit 1, p. 8).

To verify that the Defendant shot automatically, FEO Kingery


first attached a 1 inch by 1 1/4 inch aluminum plate to the
rear of the Defendant utilizing duct tape and plastic zip

machineguns.
7

PK machineguns do not utilize a traditional fixed firing


pin, rather they utilize a rotating bolt that locks the firing
pin in the battery position when the bolt is moved forward, not
when the trigger is pulled. The design is the functional
equivalent to a traditional fixed firing pin and is clearly
distinguishable from "hammer or striker fired" firing pins common
on semiautomatic firearms which are held under spring tension and
released forward when the trigger is pulled. Since 1982, ATF has
held that all firearms that utilize a fixed firing pin are
machineguns.
8

Under the NFA, the term "trigger" is no t defined. ATF has


consistently held that the term "trigger" is not limited t o a
conventional trigger, but rather refers to any part of a firearm
that initiates the firing sequence. In the case at hand,
Claimant submitted the Defendant without a traditional trigger.
FTB was able to initiate the firing sequence by simply retracting
and releasing the bolt operating handle on the Defendant. Hence,
in the case of the Defendant, the bolt operating handle is the
trigger for purposes of the statutory definition.
5

952

RIF

Case 1:09-cv-00192-GET Document 43-1 Filed 10/28/09 Page 6 of 10

t ies.

12 .

(Exhibit 1, pp. 6-7).

FEO Kingery attached an aluminum plate with duct tape and zip
ties to the Defendant utilizing no special tools, equipment or
skills.

13.

(Exhibit 1, pp. 6-7).

FEO Kingery then l o aded the Defendant with three rounds of


commercially available

7. 62x54R Wolf brand ammunition and

retracted and released the bolt operating handle to initiate


the firing sequence.

14 .

The Defendant fired a

(Exhibit 1, p. 6).

single round,

but the force of the

recoil generated by the firing of the round broke the plastic


zip ties and duct tape and the Defendant failed to chamber and
fire the second round.

15.

(Exhibit 1, p. 7).

FEO Kingery then reattache d the 1 inch by 1 1/4 inch aluminum


plate to the rear of the Defendant utilizing a short piece of
chain and a tensioning b o l t.

16.

(Exhibit 1, p. 7).

FEO Kingery's attachment o f the aluminum plate with a short


piece of chain and a tensioning bo lt to the Defendant took
approximately

two minutes

equipment or skills.

and

required

no

special

tools,

(Exhibit 3, 'ii 35).

953

RIF

Case 1:09-cv-00192-GET Document 43-1 Filed 10/28/09 Page 7of10

17 .

FEO Kingery then l o ade d the


commercially available

Defendant with three rounds of

7. 62x54R Wolf

brand ammunition

and

retracted and released the bolt operating handle to initiate


the firing sequence.

1 8.

(Exhibit 1, p. 7).

The Defendant automatically fired all three rounds by a single


function of the trigger .

19 .

On April 15,

2009,

(Exhibit 1, p. 7)

FEO Kingery repeated and videotaped the

above-mentioned test at the Dekalb County Police Firing Range


in Lithonia, Georgia.

(Exhibit 3,

~~

17-19 and Exhibits SA

and SB)

20 .

The test was identical to the previo us test except that the
Defendant

was

loaded

with

seven

r o unds

available 7.62xS4R Wo lf brand ammunitio n.

of

commercially

(Exhibit 3,

~~

17-

19 and Exhibits SA and SB) .

2 1.

The Defendant auto matically fired all seven rounds by a single


function o f the trigger.

(E xhibit 3,

~~

17-19 and Exhibits SA

and SB) .

22.

After

FTB completed its

evaluation of

the

Defendant,

ATF

954

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Case 1:09-cv-00192-GET Document 43-1 Filed 10/28/09 Page 8 of 10

classified the Defendant as a "machinegun," as defined in 26


U.S.C. 5845(b).

23 .

(Exhibit 1, p. 8).

In reaching that conclusion, ATF found that the Defendant met


the definition of "machinegun" as set forth in 5845(b), as
it

was

the

frame

or

receiver

of

machinegun

and

shot

automatically more than one shot, by a single function of the


trigger.

24.

(Exhibit 1, p. 8).

ATF notified Claimant of its classification of the Defendant


as a machinegun by a letter dated June 10, 2008.
Cf[Cfl

25 .

(Exhibit 4,

6-7).

In reply, Claimant's president wrote ATF, in a letter dated


June

16,

2008,

and

stated his

belief

that

ATF' s

testing

procedures were "not valid," that the classification of the


Defendant

was

erroneous,

class if ica ti on.

26.

and

that

ATF

should

change

its

(Exhibit 8) .

ATF sent a letter, dated July 11, 2008, in which it advised


Claimant's president that he needed to amend his Form 2 to
reflect

the

(Exhibit 4,

Defendant's
Cf!Cfl

classification

as

machinegun.

6-7).

955

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Case 1:09-cv-00192-GET Document 43-1 Filed 10/28/09 Page 9 of 10

27.

Claimant's president rejected the recommendation, refusing to


sign an amended Form 2.

30.

(Exhibit 4,

10).

In August 2008, the Defendant was transferred to ATF's Atlanta


Field Division where it was seized for forfeiture.
4,

31.

(Exhibit

10).

On January 23, 2009, Plaintiff filed this action to forfeit


the Defendant pursuant to 26 U.S.C.

5872.

(Doc. 1).

SALLY QUILLIAN YATES


ACTING UNITED STATES ATTORNEY

Isl G. Jeffrey Viscomi

Isl Harry R. Foster, III

G. JEFFREY VISCOMI
ASSISTANT UNITED STATES ATTORNEY

HARRY R. FOSTER, III


SPECIAL ASSISTANT
UNITED STATES ATTORNEY

Georgia Bar No. 289074


600 United States Courthouse
75 Spring Street, S.W.
Atlanta, Georgia 30303
(404) 581-6036
jeffrey.viscomi@usdoj.gov

Georgia Bar No. 270620


Bureau of Alcohol, Tobacco,
Firearms and Explosives
2600 Century Parkway, N.E.
Suite 335
Atlanta, Georgia 30345
(404) 417-2696

harry.foster@atf .gov
Attorneys for Plaintiff

956

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Case 1:09-cv-00192-GET Document 43-1 Filed 10/28/09 Page 10 of 10

CERTIFICATE OF SERVICE

I hereby certify that I have prepared the foregoing STATEMENT


OF MATERIAL FACTS AS TO WHICH THERE IS NO GENUINE ISSUE TO BE TRIED

in compliance with Local Rule 5.1, NDGa., using Courier New 12


point type and have this day electronically filed the document with
the

Clerk

of

Court

using

automatically send e-mail

the

CM/ECF

system,

which

notification of such filing

to

will
the

following attorneys of record:


John R. Monroe
H. Monroe Whitesides, Jr.
This 28th day of October, 2009.
/s/ G. Jeffrey Viscomi
G. JEFFREY VISCOMI
ASSISTANT U.S. ATTORNEY
Georgia Bar No. 289074

957

RIF

Case 1:09-cv-00192GET Document 43-2 Filed 10/28/09 Page 1 of 30

IN THE UNITED STATES DISTRICT COURT


FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
CASE NO.
vs.
1:09-CV-0192-GET
ONE HISTORIC ARMS MODEL 54RCCS
"7.62X54R CALIBER CONVERSION
SYSTEM" MACHINEGUN, SERIAL NO. Vl,
Defendant.
MEMORANDUM OF LAW IN SUPPORT OF
PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
I. INTRODUCTION
Historic Arms, LLC (" Claimant" ) challenges the forfeiture of
one Historic Arms Model 54RRCCS 7.62x54R Caliber Conversion System
machinegun,

serial number Vl

("Defendant").

The Defendant is

subject to forfeiture as it is a machinegun that cannot be lawfully


possessed by Claimant because it has no t been properly registered
as required by the National Firearms Act ("NFA"), 26 U.S.C . Chapter
53.

Because the Defendant is properly and reasonably classified as

a machinegun,

this Court should grant Summary Judgment to the

Government.

A.

Legal Background

The Gun Control Act of 1968 ("GCA"), as amended, generally


makes

it

"unlawful

machinegun."

18

for

u.s.c.

any

person

922 (o) (1).

958

to

transfer

or

possess

Certain exceptions t o this

RIF

Case 1:09-cv-00192-GET Document 43-2 Filed 10/28/09 Page 2 of 30

prohibition exist, such as for law enforcement personnel and those


machineguns lawfully possessed on or before May 19,
U.S.C. 922(0) (2).

198 6.

18

The term "machinegun" used in section 922(0)

shares the definition of the term in the NFA.

The NFA defines a

machinegun as:
[A]ny weapon which shoots, is designed to shoot, or can
be readily restored to shoot, automatically more than one
shot, without manual reloading, by a single function of
the trigger.
The term shall also include the frame or
receiver of any such weapon, any part designed and
intended solely and exclusively, or combination of parts
designed and intended, for use in converting a weapon
into a machinegun, and any combination of parts from
which a machinegun can be assembled, if such parts are in
the possession or under the control of a person.
See 18 U. S . C. 921(a) (23); 26 U.S . C. 5845(b); see also 27 C.F.R.

478.11 and 479.11 .


Under

the

NFA,

machinegun

manufacturers

register in accordance with 26 U.S . C . 5822.

are

required

to

Generally, the GCA

requires that manufacturers may only manufacture machineguns for


the use of a Federal or State department or agency. See 18 U.S.C.

922(0).

("ATF")

The Bureau of Alcohol, Tobacco, Firearms and Explosives


is

the

agency

charged

with

the

administration

and

enforcement of the GCA and NFA.

See Akins v. United States, 312

Fed.

2009) (recognizi ng

Appx.

197,

198

(11th Cir.

Congressio nal

delegation of authority to ATF to interpret and enforce NFA); See


also

U.S .

v.

One Sentinel Arms

Striker-12

Shotgun Serial

No.

959

RIF

Case 1:09-cv-00192-GET Document 43-2 Filed 10/28/09 Page 3 of 30

001725,

416

F.3d

977,

979-980

(9th

Cir.

2005) (recognizing

delegation of authority to ATF); 27 C.F.R. 479.

B.

Statement of Facts

Plaintiff inco rporates herein by refere nce its Statement of


Material Facts as to Which There is No Ge nuine Issue to Be Tried .

II . ARGUMENT AND CITATION OF AUTHORITY


A.

Summary Judgment Standard

Summary judgment is proper "if the pleadings, the discovery


and disclosure materials on file,

and any affidavits show that

there is no genuine issue as t o any material fact and that the


nonmoving party is entitled to judgment as a matter of law."
R.

Civ.

P.

56(c).

Summary

j udgment

is

appropriate

forfeiture actions where th i s standard is met.


States v.

in

Fed.
civil

See, e . g . , United

$291,828.00 in United States Currency,

536 F . 3d 1234,

1236 (11th Cir. 2008).


When a motion for summary judgment is properly made and
supported, an opposing party may not rely merely o n
allegations or denials in its own pleading; rather, its
response must - by affidavits or as otherwise provided in
this rule - set out specific facts showing a genuine
issue for trial.
If the opposing party does not so
respond, summary judgment should, if appropriate, be
entered against that party .
Fed. R. Civ. P. 56(e) (2).

The district court need not permit a

case to go to trial where the party opposing summary judgment


relies upon implausible inferences drawn from the evidence.

Mize

960

RIF

Case 1:09-cv-00192-GET Document 43-2 Filed 10/28/09 Page 4 of 30

v. Jefferson City Bd. of Educ., 93 F.3d 739, 743 (11th Cir . 1996).
"[T]he mere existence of some alleged factual dispute between
the parties will not defeat an otherwise properly supported motion
for summary judgment; the requirement is that there be no genuine
issue of material

fact."

Scott v.

Harris,

550

U.S.

372,

380

( 2007) (quoting Anderson v. Liberty Lobby, Inc., 4 77 U.S. 242, 24 748 (1986)) (emphasis in original).

A fact is "material" if proof of

its existence or nonexistence would affect the outcome of the case


under the applicable law.

Anderson, 477 U.S. at 247-48.

A dispute

about a material fact is "genuine" (and, thus, sufficient to defeat


summary judgment) only "if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party."
there

is

genuine

issue

of material

fact

Id.

depends

Whether
upon

the

substantive law of the underlying case and the evidentiary burdens


that the law places on each party.

See Anderson, 477 U.S. at 252-

57.
The summary judgment procedure "is particularly appropriate in
cases in which the court is asked to review . . . the decision of
a

federal

administrative

Growers Ass' n v.

Brock,

agency."
771

(internal citations omitted) .

Florida

F. 2d 1455,

1459

Fruit

&

Vegetable

(11th Cir.

1983)

In this case, "application of the

arbitrary and capricious standard to the [agency's] conclusions in


view of

the

facts

in

the

administrative

record raises

legal

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Case 1:09-cv-00192-GET Document 43-2 Filed 10/28/09 Page 5 of 30

questions,

no t

f a ctua l

o nes . "

Miccosukee Tribe of Indians v.

United States , 420 F . Supp . 2d 1324, 1332 (S.D. Fla. 2006).


B.

Forfeitures Under the National Firearms Act

Property involved in a violation of the NFA is subject to


seizure and forfeiture to the United States.

26 U.S.C.

The provisions of the Customs Laws (Title 19, U.S.C.


govern

the

seizure,

summary

and

judicial

5872(a).

1602-1618)

forfeiture,

condemnation of property by ATF for violations of the NFA. 1


U.S.C.

and

See 18

3051 (c) (1) . 2

With the passage of the Civil Asset Forfeiture Reform Act


of 2000 ("CAFRA"), Pub. L. No. 106-185, 114 Stat. 202 (2000),
Congress mandated a fundamental change in the government's
initial burden of proof in most civil judicial forfeiture actions
that were commenced on or after the statute's effective date of
August 23, 2000. In many forfeiture actions under Federal law
the government now bears the burden of first establishing, by a
preponderance of the evidence, that defendant property is subject
to forfeiture. See 18 U.S.C. 983(c) (1). However, the
provisions of CAFRA do not apply to any civil forfeiture action
commenced under the Internal Revenue Code of 1986, such as the
present case. See 18 U.S.C. 983 (i) (2) (B); 26 U.S.C. 5872 (a).
2

Section 3051 (c) ( 1), enacted as part of the Homeland


Security Act of 2002, provides:
(1) Except as provided in paragraphs (2) and (3), and
except to the extent that such provisions conflict with the
provisions of section 983 of title 18, United States Code,
insofar as section 983 applies, the provisions of the
Customs laws relating to(A)
(B)
(C)

the seizure, summary and judicial forfeiture,


and condemnation of property;
the disposition of such property;
the remissions or mitigation of such
forfeiture; and
5

962

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Case 1:09-cv-00192-GET Document 43-2 Filed 10/28/09 Page 6 of 30

A person may file a claim of ownership of property seized by


the government for forfeiture.
of such claim,
f orfei tu re

19 U.S.C.

1608.

Upon the filing

the government must initiate a civil

action

and meet

its

initial burden

judicial

to demonstrate

probable cause to believe that the property was used in violation


of law.

19

1149, 1160
standard

u.s.c.

1615; United States v. $242,484.00, 389 F.3d

(11th Cir. 2004)

in

$183,791.00,

pre-CAFRA
2009

2009) (comparing

WL

(en bane)

forfeiture
2957276,

forfeiture

under

(applying probable cause


case) 3 ;

*5

United
Ga.

(N. D.

probable

cause

States
Sept.

v.
15,

standard

to

forfeiture under CAFRA).


The probable cause standard in non-CAFRA forfeitures is a
"reasonable ground for belief of guilt,

supported by less than

prima facie proof but more than mere suspicion-the same standard

(D)

the compromise o f claims,

shall apply t o seizures and forfeitures incurred, or alleged


to have been incurred, under any applicable provision of law
enforced or administered by the Bureau of Alcohol, Tobacco,
Firearms, and Explosives.
Section 305l's predecessor statute, 31 U.S.C.

9703( 0 ) (repealed

by the Homeland Security Act Of 2002), similarly provided that

the Customs Laws governed all seizures and forfeitures by ATF.


3

Prior to the adoption of CAFRA (Seen. 1, supra), 21


U.S.C. 88l(d) made 19 U.S.C. 1615 applicable to sectio n 881
forfeiture actions, typically sought in narcotics cases. Thus,
pre-CAFRA narcotics f orfeiture cases provide thoughtful
discussions on forfeiture procedure under 1615.
6

963

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Case 1:09-cv-00192-GET Document 43-2 Filed 10/28/09 Page 7 of 30

used to determine the legality of arrests, searches, and seizures


in criminal law."

United States v. Four Parcels of Real Property

on Lake Forrest Circle, 870 F.2d 586, 590 n. 10 (11th Cir. 1989)
Once the government establishes probable cause, the claimant
must prove by a preponderance of the evidence that the property was
not related to a violation of federal law.
U.S. v.

$242,484 at 1160;

U.S.

19 U.S.C. 1615; See

v. Carrell,

252 F.3d 1193,

1201

(11th Cir. 2001) (discussing pre-CAFRA forfeiture in the context of


a

narcotics

case) .

If the claimant offers such evidence,

the

government may offer "probative admissible evidence to contest the


claimant's proof."

United States v. $129,727.00 U.S. Currency, 129

F.3d 486, 492 (9th Cir. 1997).


C.

The Government Has Established Probable Cause

It is clear from the facts of the present case that there is


probable cause to believe

that the Defendant was involved in a

violation of the NFA.


Under the NFA, a manufacturer is required to register every
firearm manufactured in the National Firearms Registration and
Transfer Record ("NFRTR").
must

include

an

26 U.S.C. 5841(b).

identification

of

the

The registration

firearm,

the

date

of

registration and the name and address of the person who may possess
the firearm.

Id.

The registration requirement is further spelled out in the


7

964

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Case 1:09-cv-00192-GET Document 43-2 Filed 10/28/09 Page 8 of 30

relevant regulations, which require a manufacturer to register all


firearms

manufactured

on

form

entitled

"Notice

of

Firearms

Manufactured or Imported," more commonly referred to as a "Form 2."


The

Form

must

set

forth

specific

information

about

the

manufacturer and the firearm, including the type, model and barrel
length of barrel.

27 C.F.R.

47~.103.

The Form 2 must be signed

under penalty of perjury and filed with ATF no later than the close
of

business

the

manufactured.

next

business

day

after

the

firearm

was

Id.

In the present case, Claimant submitted the Defendant with a


Form 2 dated April 21,

2008.

On the Form 2,

under the heading

"Type of Firearm," Claimant entered "SBR," an abbreviation for


short-barreled rifle. 4
Form 2,

(Savage Depo . , Exhibit 5).

Based on that

the Defendant was registered in the NFRTR as a short-

barreled rifle.
In a

(Spencer Depo., p. 14 lines 23-25).

letter to Claimant dated June 10,

2008,

ATF informed

Claimant's president, Lennis Savage, that ATF had classified the


Defendant as a machinegun.

The eight-page letter was prepared by

Firearms Enforcement Officer ("FEO") Kingery, reviewed by Firearms


4

Under the NFA all firearms, as defined by 26 U.S.C.


5845, including, but not limited to, machineguns and shortbarreled rifles, must be registered with ATF in the NFRTR.

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Case 1:09-cv-00192-GET Document 43-2 Filed 10/28/09 Page 9 of 30

Technology Branch

( "FTB")

Assistant

signed by FTB Chief John Spencer.

Chief Richard Vasquez

(Exhibit 1).

and

The text of the

letter explained the classification process and was accompanied by


photographs of the testing undertaken by FEO Kingery.

Id.

Page

eight of the letter states that the Defendant has been classified
as a machinegun and therefore the Defendant "must be properly
registered with the ATF National Firearms Act Branch by close of
business of the next business day following your receipt of this
letter."

(Spencer

Depo.,

p.

lines

10-15;

Exhibit

1,

p.

8) (emphasis added).
In response

to ATF' s

letter of June 10,

2008,

Claimant's

president sent a letter on behalf of Claimant, dated June 16, 2008,


expressing his opinion that ATF's classification was "not valid"
and erroneous.

(Doc. 5,

sent

two

at

least

6; letter attached as Exhibit 8).

subsequent

letters

to

Claimant,

ATF

advising

Claimant's president that the Defendant must be registered as a


machinegun via the submission of a corrected Form 2.

Claimant's

president refused, failing to submit a Form 2 consistent with ATF's


classification of the Defendant as a machinegun.
The NFA branch of ATF,

(Doc. 5,

7) .

which administers and maintains the

NFRTR, also advised Claimant of the need to submit a corrected Form

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Case 1:09-cv-00192-GET Document 43-2 Filed 10/28/09 Page 10 of 30

2.

(Doc. 5,
It

7) .

C][

is

of

Occupational

no

consequence

Taxpayer

("SOT"),

that

Claimant

is

licensed by ATF

to

firearms, including machineguns.


C.F.R.

479.31.

SOTs

are

manufacture

See 26 U.S.C. 5801, 5802; 27

required

to

register all

manufactured by the close of the following business day.

479.103.

Special

firearms
27 C.F.R.

Plaintiff is unaware of an exception that allows a SOT

to possess an unregistered or improperly registered firearm beyond


the

close

of

business

on

the

day

following

said

firearm's

the

transfer,

manufacture.
The

NFA bans

the

transfer

of

firearms

"if

receipt, or possession of the firearm would place the transferee in


violation of law." 26 U.S.C. 5812(a).

While there is no transfer

at issue in the present case, it follows from 5812(a) and common


sense that ATF could not return the Defendant to Claimant knowing
that doing so would have placed Claimant in violation of 18 U.S.C.

922(0) and 26 U.S.C. 586l(d) and (j).


Because Claimant failed to submit an accurate Form 2,

the

Defendant is not properly registered as a machinegun as required by


26 U. S.C .

5841 and 27 C.F.R .

479 . 101-105.

Therefore,

the

Defendant is an unregistered machinegun and cannot be possessed by


any person pursuant to 26 U.S.C. 586l(d); the government had no

10

967

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Case 1:09-cv-00192-GET Document 43-2 Filed 10/28/09 Page 11 of 30

option other than to condemn it and seek its forfeiture.


In addition to t he s h owing of probable cause in support of the
instant seizure , the materials upon which the United States relies
in support o f t h is Motion establish that the Defendant was properly
classified as a mach inegun within the meaning of the NFA.

0.

The Applicable Standard of Review

The Sup reme

Court has

recognized that agency

rulings

and

determinations that are the product of a Congressional mandate for


"administrative action with the

force

of law" are entitled to

deference and therefore should be sustained if reasonable (i.e.,


so-called "Chevron deference") .

United States v. Mead Corporation,

533 U. S. 218, 229 (2001); see also Chevron U.S.A. Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837, 843

(1984).

Most

cases in which the Supreme Court applies Chevron deference involve


"the

fruits

adjudication."

of

notice-and-comment

rulemaking

or

formal

Mead, 533 U.S. at 230.

Where an agency determination does not qualify for Chevron


deference, the Supreme Court has measured the weight to be accorded
an

agency

determination

"Skidmore respect") .

on

sliding

scale

(i.e.,

so-called

"The fair measure of deference to an agency

administering its own statute has been understood to vary with


circumstances, and courts have looked to the degree of the agency's
11

968

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Case 1:09-cv-00192-GET Document 43-2 Filed 10/28/09 Page 12 of 30

care, its consistency, formality, and relative expertness, and to


the persuasiveness of the agency's position

"

Mead,

533

U.S. at 228 (citing Skidmore v. Swift & Co., 323 U.S. 134 (1944),
footnotes omitted).

Skidmore respect therefore ranges from "great

respect" to "near indifference."

Id.

(citations omitted).

The precedent in the Eleventh Circuit is very clear: an ATF


firearms classification will be upheld provided that it is not
arbitrary and capricious.
197,

200

(11th Cir.

Akins v. United States, 312 Fed. Appx.

2009).

See also Gilbert Equipment Co. v.

Higgins, 709 F. Supp. 1071


(lith

Cir.

(S.D. Ala. 1989), aff'd, 894 F.2d 412

1990) (sustaining

ATF

classification

of

the

USAS-12

semiautomatic shotgun under the arbitrary and capricious standard) .


In

Akins,

Appellant

William

Akins

challenged

ATF's

classification of a device he manufactured to increase the firing


rate of semi-automatic rifles.

In March 2002, Akins submitted a

prototype of the device, named the "Akins Accelerator" to FTB.

FTB

tested Akins' device and determined that it was not a "machinegun"


under the NFA.

Akins, 312 Fed. Appx. at 198.

In November 2006,

several individuals contacted ATF with questions regarding Akins'


device.

In

classification.

addition,
Because

similar
of

devices

these

events,

were
ATF

submitted

for

re-opened

the

classification and, after further evaluation of a production model,

12

969

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Case 1:09-cv-00192-GET Document 43-2 Filed 10/28/09 Page 13 of 30

advised Akins that his device had been reclassified as a machinegun


and that any previous rulings were deemed "overruled." Id. at 199.
After his request for reconsideration was denied by ATF, Akins
filed a challenge in the district court, arguing in part that the
classification of the device as a machinegun was unreasonable and
that the summary classification of the device violated his right to
due process.

The district court granted summary judgment for the

United States and Akins appealed.

Id.

In affirming the district court's decision,

the Eleventh

Circuit first set forth the deferential standard by which it would


review ATF's classification of the Akins Accelerator:
Under the Administrative Procedures Act, we defer to the
decision of the Bureau unless it " ( 1) exceeds the
Bureau's
statutory
authority,
(2)
violates
a
constitutional right, or (3) constitutes an 'arbitrary'
or 'capricious action,' or 'an abuse of discretion' or an
action 'otherwise not in accordance with law. '" Based on
that deferential standard, we "cannot substitute our
judgment for the Bureau's judgment, but rather, we must
presume" that the actions of the government agency are
"valid [.] "
Akins, 312 Fed. Appx. at 200 (internal citations omitted) (quoting
Gun South, Inc. v. Brady, 877 F.2d 858, 861 (11th Cir. 1989)).

The

court held that ATF acted within its discretion when it classified
Akins' device.

312 Fed. Appx . at 200.

Further, the court found

that ATF's decision to reconsider its 2002 classification was not


arbitrary and capricious.

Id.
13

970

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Case 1:09-cv-00192-GET Document 43-2 Filed 10/28/09 Page 14 of 30

The Akins court also ruled that ATF's denial of Akins' request
for reconsideration of the machinegun classification was not
violation of due process.
reclassification

and

Because Akins received notice of the

was

given

the

opportunity

reconsideration, due process was satisfied.


Finally,
outside

of

though Akins

its

did

not

statutory authority,

seek

to

Id.

claim that
the

court

ATF was
noted

acting

that

the

classification was made pursuant to the powers delegated to ATF by


Congress to interpret the NFA.
In

the

present

case,

Id. at 198.

ATF

Claimant submitted it to ATF.

classified

the

(Doc. 5, 'ii 3).

Defendant

after

Claimant was then

sent written notice of the classification along with an explanation


of how the classification was performed.

(Exhibit 1).

Claimant

disagreed with the classification and asked for reconsideration.


(Doc. 5

at~

6).

FTB denied Claimant's request.

(Exhibit 2).

In contesting this forfeiture action, Claimant argues that the


classification of the Defendant as a machinegun was incorrect.
(Doc. 5, Second Defense).
technical merits,
Akins.

as

Claimant's argument fails both on its

discussed in Section E,

supra,

and under

ATF acted within its authority when it classified the

Defendant

as

classification,

machinegun.
but

mere

Claimant may disagree


difference

of

with ATF' s

opinion,

however

vociferously advanced, does not render the classification arbitrary


and

capricious.

Accordingly,

ATF's

determination

that

the

14

971

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Case 1:09-cv-00192-GET Document 43-2 Filed 10/28/09 Page 15 of 30

Defendant is a machinegun within the meaning of the NFA must be


sustained

unless

it

was

arbitrary,

capricious,

an

abuse

of

discretion , or otherwise contrary to law .

E.

The Defendant is a Machinegun

The crux o f this case centers o n ATF ' s classification of the


Defendant as

a machinegun under the NFA.

Congress originally

enacted the NFA in 1934 to regulate so-called "gangster weapons."


The NFA governs

the making,

machineguns

certain

and

impo rt,

o ther

transfer,

firearms.

The

and taxation of
NFA

defines

"machinegun" as:
Any weapon which shoots, is designe d to shoot, or can be
readily restored to shoot, automatically more than one shot,
without manual reloading, by a single function of the
trigger. ~
The term shall also include the frame or receiver
of any such weapon, any part designed and intended solely and
exclusively, or combination of parts designed and intended,
for use in converting a weapon into a machinegun, and any
combination of parts from which a machinegun can be assembled
if such parts are in the possession or under the control of a
person .
26

u.s.c.

5845 (b).

The Defendant is a machinegun if it meets any one of the

Under the NFA, the term "trigger" is not defined. ATF has
consistently held that the term "trigger" is not limited to a
conventional trigger, but rather refers to any part of a firearm
that initiates the firing sequence.
In the case at hand,
Claimant submitted the De'fendant without a traditional trigger.
FTB was able to initiate the firing sequence by simply retracting
and releasing the operating handle on the Defendant. Hence, in
the case of the Defendant, the operating handle is the trigger
for purposes of the statutory definition.
15

972

RIF

Case 1:09-cv-00192-GET Document 43-2 Filed 10/28/09 Page 16 of 30

definitions

provided

by

statute.

United

States

v.

Espinosa, 57 F. Supp. 2d 1359, 1362 (M.D. Fla. 1999).


Espinosa,

the court interpreted

5845(b)

Aguilar-

In Aguilar-

as providing multiple

independent definitions of machinegun:


In short, the statute provides several alternative
formulations.
If a weapon shoots automatically, is
designed to shoot automatically, or is readily restorable
to shoot automatically, the weapon is a machine gun.
These three al terna ti ves are expressed disjunctively.
Any weapon that qualifies under any one of the three
concepts (shoots, designed to shoot, restorable to shoot)
is a proscribed machine gun.
Aguilar-Espinosa at 1362 (emphasis added) .
In the present case, ATF initially found that the Defendant
contains the frame or receiver of a machinegun and is a weapon that
shoots automatically more than one shot without manual reloading,
by

single

function

of

the

trigger.

(Exhibit

1,

p.

8).

Subsequent evidence, including that obtained in discovery, led ATF


to conclude that the Defendant also meets two additional prongs of
section 5845(b), in that it is designed to shoot automatically more
than one shot without manual reloading, by a single function of the
trigger; and is a weapon that can be readily restored to shoot
automatically more than one shot without manual reloading,
single function of the trigger. 6

(Kingery Declaration,

by a

38).

In

While ATF concluded and maintains that the Defendant


shoots automatically, Plaintiff did not specifically allege this
in its complaint.
16

973

RIF

Case 1:09-cv-00192-GET Document 43-2 Filed 10/28/09 Page 17 of 30

other word s ,

while the Defendant need satisfy only one of these

alternativ es to be considered a machinegun, ATF's classification


shows t h a t

the Defendant in fact meets two of the formulations

found in s e ction 5845(b ) and discovery in this case has allowed ATF
to determi ne that the Defendant meets,

in total ,

four different

formulation s of machinegun under section 5845(b) .


1.

Defendant Contains the Frame or Receiver of a


Machinequn

The a b ove-quoted definition includes an amendment enacted by


Congress in 1968 to include within the definition a machinegun
receiver

standing

alone . 7

receiver

is

the

main

structural

component of the weapon to which other working parts are attached


or in which all working parts are housed.

By making the receiver

equivalent to a machinegun, Congress clearly intended to control


and regulate this one component standing alone as a machinegun .

As

explained in the pertinent legislative history:


This is an important addition to the definition of a
machinegun and is intended to overcome problems encountered in
the administration and enforcement of existing law.
It is
intended that the [frame or receiver] be subject to all
provisions
of
the
chapter
applicable
to
serviceable
machineguns.
Of course, if the frame or receiver are
themselves unserviceable as a frame or receiver then they
would be treated as an unserviceable machinegun.
Any
machinegun frame or receiver which is readi l y restorable would
be treated as serviceable. (Removed extra line space below)
See NFA Amendments of 1968, adopted as Title II of the
Gun Control Act of 1968, Pub. L. No. 90-618, 82 Stat. 1213
(1968).
17

974

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Case 1:09-cv-00192-GET Document 43-2 Filed 10/28/09 Page 18 of 30

90~h

Sees. Rep. No. 1501,

Cong., 2d Sess. 45-46

(1968); see also

United States v. Whalen, 337 F. Supp. 1012, 1016-17 (S.D.N.Y. 1972)


("Presumably the reason for this breadth of inclusion was the felt
necessity

for

keeping

record

not

only

of

all

operating

or

repairable machineguns, but also of all possible sources of parts


for

repairs

and

for

conversion

of

manual

weapons

into

machineguns.n) (citations omitted) . 8


It is not disputed that Claimant constructed the Defendant
utilizing
(Savage

modified

Depo.,

pp.

semiautomatic
106-109).

Wiseli te Arms

However,

PK

receiver.

Claimant's

president

testified that prior to assembling the Defendant, he removed the


lower shelf, including the machinegun bolt blocking
semiautomatic PK receiver.

Id .

bar ~ ,

from a

FEO Kingery testified that the

difference between a semiautomatic PK receiver and a machinegun PK

The Court in Whalen address e d "servic eablen firearms,


which are capable of discharging a sho t by means of an explo sive
or capable of being readily restored t o a firing condition, and
"unserviceablen firearms, whi ch are inc apable of discharging a
shot by means of an explosive and incapable of being readily
restored to a firing conditio n. Even an unserviceable firearm
can be a machinegun under the NFA. See 26 U.S.C. 5845(h) and
5852(e). See also United States v. Pena-Lora, 225 F.3d 17, 31-32
(1st Cir . 2000) (inoperable Uzi machinegun plainly meets the GCA
d ef i nition of machinegu n).
9

A machinegun bolt blocking bar


metal bar (approximately ~ inch wide,
long, by approximately 1/4 inch high)
a pproximately the middle o f the l o we r
receiver.

is a rectangular solid
by approximately l~ inches
that is attached at
shelf o n a semiautomatic PK

18

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RIF

Case 1:09-cv-00192-GET Document 43-2 Filed 10/28/09 Page 19 of 30

receiver is that the semiautomatic PK receiver has a machinegun


bolt blocking bar attached on its lower shelf and has a widened
left bolt guide rail.

(Kingery Depo., pp. 150-15 6) .

The purpose

of these two design features is to prevent the installation and


functioning

of

PK machinegun

facilitate automatic fire.

bolt

carrier

and

bolt,

Id. pp. 150-156 and 161-162.

type receiver without these features is a machinegun.


As

stated

above,

Claimant

constructed

the

which
Any PK

Id. p. 156.
Defendant

by

removing the lower shelf and machinegun bolt blocking bar on a


semiautomatic
Furthermore,

PK

receiver.

(Savage

Claimant modified a

Depo.,

pp.

112-113).

PK machinegun bolt carrier by

widening the left guide slot from 3/32 inch to 1/4 inch.
1, pp. 5-6).
defeated

the

As a result, the modified


purpose

of

the

(Exhibit

PK machinegun bolt carrier

widened

left

guide

rail

and

the

modified a PK machinegun bolt carrier and bolt could be installed


in

the

Defendant's

receiver,

thus

enabling

automatic

fire.

(Kingery Depo., p. 199, lines 20-22; Savage Depo., p. 134, lines 721) .

These mod if ica tions,

in and of themselves,

constitute the

manufacture of a machinegun as the Defendant's receiver no longer


contains the design features required to prevent the installation
of machinegun parts
contains

the

and automatic

frame or

modified by Claimant,

receiver
the

fire.

of a

Defendant's

Hence,

machinegun.
frame

or

the

Defendant

Further,
receiver

as

is

19

976

RIF

Case 1:09-cv-00192-GET Document 43-2 Filed 10/28/09 Page 20 of 30

machinegun as defined by the statute regardless of whether it was


capable o f f i ring .
2.
A

Defendant is Designed to or Can be Readily Restored to


Shoot Automatically
firearm,

including

receiver,

is

machinegun

if

it

satisfies any of the statuto ry criteria set forth in 26 U.S.C.


5845(b), i.e., it shoots or is designed to shoot automatically, or
can be "readily restored" to shoot automatically.

The Defendant

satisfies this test because it is designed to shoot automatically


and, alternatively, because it can readily be restored to shoot
automatically.
neither

the

restorable."

The definition of machinegun in the NFA defines

term

"designed

to

shoot"

nor

the

term

"readily

Longstanding ATF rulings provide that "designed to

shoot" includes weapons that "possess specific machinegun design


features which facilitate automatic fire by simple modification or
elimination

of

existing

component

parts."

ATF

Ruling

82-2

reprinted in 1982-1 A.T.F. Q.B. at 18; 82-8 reprinted in 1982-2


A.T.F.

Q.B.

at 49;

83-5 reprinted in 1983-3 A.T.F.

(copies attached as Exhibit 10)


Treasury,

774

F.2d

417

1
J .

(10th

Q.B.

at 35

See York v. Secretary of the


Cir.

1985) (upholding

ATF' s

classification of a YAC Sten MKII as a machinegun pursuant to ATF

10

Effective January 24, 2003, all references to Title 27,


Code of Federal Regulations, Part 179, are now contained within
Title 27, Code of Federal Regulations, Part 479.
20

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RIF

Case 1:09-cv-00192-GET Document 43-2 Filed 10/28/09 Page 21 of 30

Ruling 83-5) .
The Eleventh Circuit has held that a firearm with machinegun
design features is a machinegun even if it has not functioned as a
machinegun in the past .

See S.W. Daniel, Inc . , v. United States,

831 F.2d. 253, 254-55 (11th Cir. 1987) (upholding the use of a jury
instruction,

in a

tax liability case,

defini n g a machinegun as

"those weapons which have not previously functioned as machine guns


but possess design features which facilitate full automatic fire by
simple modification or elimination of existing component parts7").
In

addition,

the

above-mentioned

rulings

provide

that

"(t]he

'readily restorable' definition defines weapons which previously


could shoot automatically but will not in their present condition."
ATF

Ruling

82-2

reprinted

in

1982-1

reprinted in 1982-2 A . T . F. Q.B. at 49;

A.T.F.

Q.B.

at

18;

82-8

83-5 reprinted in 1983-3

A.T.F. Q.B. at 35 (copies attached as Exhibit 10).


Courts

have

held

that

the

"readily

restorable"

test

is

satisfied where a firearm can be made capable of renewed automatic


operation, even if the restoration required the application of some
degree of skill and the use of some tools and parts .

See United

States v. One Harrington and Richardson Rifle, Model M-14,


Caliber, Serial No.

85279,

278 F.Supp. 2d.

888,

891

7.62

(W.D. Mich.

2003) (firearm satisfies the "readily restorableu test if it can be


made

capable

of

automatic

operation

through

some

form

21

978

RIF

of

Case 1:09-cv-00192-GET Document 43-2 Filed 10/28/09 Page 22 of 30

restoration, including restoration requiring a degree of skill and


the use of tools and parts) (citations omitted); United States v.
Aguilar-Espinosa, 5 7 F. Supp. 2d 1359, 1362 (M. D. Fla. 1999) (holding
that "readily restored" "means a less than arduous assembly of
manageable and available parts by a combination of (1) the ability
of a reasonably skilled and informed but not necessarily expert or
artistic worker and (2) tools commonly understood by and commonly
available to such workers, including, for example, Allen wrenches,
files,

jeweler's screw drivers, and the like but excluding, for

example,

the resources available to a master machinist with a

modern and well-equipped lathe."); United States v. Catanzaro, 368


F. Supp. 450, 453 n.3 (D. Conn. 1973) (firearm restored to automatic
fire capability by addition of $15.00 worth of parts and one hour
of assembly was readily restorable).

United States v. Smith, 477

F . 2d 399, 400 (8th Cir. 1973) (firearm was "readily restorable to


shoot automatically" notwithstanding that " [ t)o do so would take
about an 8-hour working day in a properly equipped machi ne shop").
On the other hand, the readily restored standard was held not
to be met

in a

case

in which

restoration

to

automatic

fire

capability would involve "impractical" drilling of barrel we l ds and


plugs that would damage or destroy the weapon barrel, require tools
costing approximately $65,000 (in 1980), and necessitate "expert
gunsmith services . "

United States v . Seven Misc . Firearms, 503 F.


22

979

RIF

Case 1:09-cv-00192-GET Document 43-2 Filed 10/28/09 Page 23 of 30

Supp. 565,

573

(D.D.C. 1980).

Regardless of the amount or time

needed, level of skill required, or type of tools needed to restore


a

firearm,

the

restored firearm need not

original design specifications.

be

See United States v.

7.62x51mm Caliber,One Model 14 Serial 593006,


(9th Cir. 2006)

identical

to

the

TRW Rifle

447 F.3d 686,

691

(The rifle need not be a duplicate of the original

or even meet

the

original

specifications

to

qualify as

being

"restored.").

See also United States v. One TRW, Model M14, 7.62

Caliber Rifle, 441 F.3d 416, 424 (6th Cir. 2006) ("[T]he definition
of

'restore'

"restored"

does not preclude an object from being considered

without

returning

it

to

condition

in

which

it

previously existed.").
a.

The Defendant is Designed to Shoot Automatically

In examining

the

Defendant,

ATF

determined,

and

Claimant

readily concedes that the Defendant fires from and open bolt 11 and

11

Firing from an open bolt refers to a method of operation by


which a machinegun's bolt is retracted to its rearmost position
and is held in such position until the trigger is activated.
Upon activation, normally the trigger acts on the sear, releasing
the bolt, which is propelled forward by the action of a spring.
The bolt strips a round of ammunition from the clip or belt and
forces the round of ammunition into the chamber where a fixed
firing pin, located on the bolt face, ignites the primer firing
the round . The recoil or gas generated by the ignition of the
gunpowder forces the bolt back to its rearmost position and the
cycle repeats automatically until either the trigger is released
and the sear engages the bolt, the machinegun malfunctions, or
all ammunition is expended .
23

980

RIF

Case 1:09-cv-00192-GET Document 43-2 Filed 10/28/09 Page 24 of 30

utilizes a fixed firing pin. 12

(Exhibit 1, p.2; Exhibit 7, 'H 9).

As discussed above, these features are unique to machineguns.


ATF Rulings

82-2,

82-8

and

83-5

(ATF classi f ica ti on

the

See
KG-9

pistol, the SM-10 and SM-llAl pistols and YAC STEN MK II carbine as
machineguns in part due to the fact that all were designed to fire
automatically as they all fired from an open bolt and utilized a
fixed

firing

pin) .

Since

issuing

those

rulings,

ATF

has

consistently held that open bolt operation and a fixed firing pin
were design characteristics of machineguns, and has classified all
firearms

which

contain

those

(Vasquez Depo., p. 61-62).

design

features

as

machineguns.

Now, some 25 years after ATF classified

the KG-9 pistol, the SM-10 and SM-llAl pistols and YAC STEN MK II
carbine as machineguns, Claimant argues that the Defendant is not
designed to fire automatically even though it admitted that the
Defendant incorporates
characteristics.
In

s.w.

the same operating principle and design

(Savage Depo., pp. 169-170; Exhibit 7,

Daniel,

the

Eleventh

Circuit

affirmed

9).

that

the

definition of machinegun includes "those weapons which have not

!PK machineguns do not utilize a traditional fixed firing


pin, rather they utilize a rotating bolt that locks the firing
pin in the battery position when the bolt is moved forward, no t
when the trigger is pulled. The design is the functional
equivalent to a traditional fixed firing pin and is clearly
distinguishable from "hammer or striker fired" firing pins c ommo n
on semiautomatic firearms which are held under spring tension and
released forward when the trigger is pulled.

24

981

RIF

Case 1:09-cv-00192-GET Document 43-2 Filed 10/28/09 Page 25 of 30

previously functioned as machine guns but possess design features


which facilitate full automatic fire by simple modification or
elimination of existing component parts."

Here, the "designed to

shoot" prong of the statutory definition is


because the Defendant,

clearly satisfied

as submitted by Claimant,

contained the

machinegun design features of open bolt operation and a fixed


firing pin, and was capable of shooting automatically wi th minor
modifications.

This classification is consistent with both ATF's

longstanding Rulings and this Circuit's precedent.


Defendant

is

machinegun,

since

it

was

As such, the

designed

to

shoot

automatically more than one shot, without manual reloading, by a


single function of the trigger .
b.

The Defendant is Readily Re s t orabl e to Shoot


Automatical.ly

In addition to satis f ying the "designed to shoot" criterion of


Section 5845(b), the Defendant is also "readily restorable to shoot
automatically"
previously,

within

the

meaning

of

the

NFA.

As

stated

Claimant admitted that the Defendant's receiver is

constructed from a semiautomatic PK receiver which was modified by


removing the lower shelf and machinegun bolt blocking bar.
Depa., pp. 106-107).
the

machinegun

bolt

(Savage

FEO Kingery testified that Claimant removed


blocking

bar

from

receiver, thus manufacturing a machinegun.

the

semiautomatic

PK

(Kingery Depo., p. 199,

25

982

RIF

Case 1:09-cv-00192-GET Document 43-2 Filed 10/28/09 Page 26 of 30

lines 18-22).

During deposition, Claimant's president identified

three

clips

video

which

depicted

the

Defendant

automatically prior to its submission to ATF.


98-103 and Exhibit 6).

shooting

(Savage Depo., pp.

It is not disputed that when Claimant

provided the Defendant to ATF, it was incomplete and not in firing


condition as it lacked a mechanism to capture the recoil spring,
operating

rod

and

buffer

assembly

and

traditional

trigger.

(Exhibit 1, pp. 6-7).


FEO

Kingery

demonstrated

that

the

Defendant

was

readily

restorable to function as a machinegun in a matter of a few minutes


with the addition of a few common parts which are available at any
hardware store. 1 3 (Kingery Depo., pp. 112-122).

The Defendant was

restored to firing condition by simply securi ng a 1 inch by 1 1 /4


inch aluminum plate to the rear of the Defendant's receiver with a
short length of chain and tensioning bolt. Id.;
The

restoration

required

no

permanent

(Exhibit 3,

modifications

34).

to

the

Defendant and took less than two minutes to accomplish using no


tools.

(Exhibit 3,

35) .

To verify that the restored Defendant

would function as a machinegun,

FEO Kingery loaded the Defendant

with a belt of three rounds of commercially available Wolf brand


7.62 x 54R ammunition and retracted and released the bolt operating
13

The FTB Report contains a complete description and


photographs how FTB restored the Defendant's capacity for fully
automatic fire. (Exhibit 1, pp. 6-7).
26

983

RIF

Case 1:09-cv-00192-GET Document 43-2 Filed 10/28/09 Page 27 of 30

handle.

(Exhibit 1. pp. 6-7).

The release of the bolt operating

handle initiated an automatic firing sequence whereby the Defendant


fired all three rounds automatically, without manual reloading, by
a single function of the trigger.
April

15,

2009

at

Lithonia, Georgia.

the

DeKalb

(Exhibit 3,

Id.
County

'.11'.ll

This test was repeated on


Police

Firing

Range

17-19; Exhibits SA and B).

in
The

test was identical to the previous test except that the Defendant
was loaded with seven rounds of commercially available Wolf brand
(Exhibit 3, '.II 18).

7.62 x 54R ammunition.

Again, the Defendant

fired all seven rounds automatically, without manual reloading, by


single function of the

trigger.

Id.

'.II

19.

Furthermore,

the

Claimant conceded that the Defendant would shoot automatically


regardless of what items were secured to the rear of the Defendant
if the such items could capture the recoil spring, operating rod
and buffer assembly.

(Exhibit 7, '.11'.ll 17-18).

In previous cases,

courts have found that machineguns were

readily restorable when the act of restoring the machinegun to


shoot automatically took up to several hours,
skills,

tools,

and machinery.

Here,

utilizing special

the undisputed facts show

that the Defendant was readily restored to shoot automatically by


the

simple

addition

of

approximately two minutes.


parts or skills.

three

common

pieces

of

hardware

in

The restoration took no special tools,

(Exhibit 3, '.II 35).

As such, the

Defendant is a

27

984

RIF

Case 1:09-cv-00192-GET Document 43-2 Filed 10/28/09 Page 28 of 30

machinegun,

since it is designed to shoot,

or can be readily

restored to shoot, automatically more than one shot, without manual


reloading, by a single function of the trigger.
Based on

the

foregoing,

the

Court

should

hold

that

the

Defendant contains the frame or receiver of a machinegun and is


designed to, or can be readily restored to shoot, automatically
more than one shot, without manual reloading, by single function of
the trigger.
III . CONCLUSION
ATF acted reasonably in protecting the public by classifying
the

Defendant

as

machinegun.

Claimant

failed

to properly

register the Defendant and further refused to avail himself of the


opportunities given to him to do so.

Therefore, the Defendant is

an improperly registered machinegun which cannot be returned to


Claimant and the Defendant must be forfeited to the United States.
Accordingly, the Court should grant judgment in favor of Plaintiff.

Dated: October 28, 2009

28

985

RIF

Case 1:09-cv-00192-GET Document 43-2 Filed 10/28/09 Page 29 of 30

SALLY QUILLIAN YATES


ACTING UNITED STATES ATTORNEY
/s/ G. Jeffrey Viscomi
G. JEFFREY VISCOMI
ASSISTANT UNITED STATES ATTORNEY
Georgia Bar No. 289074
600 United States Courthouse
75 Spring Street, S.W.
Atlanta, Georgia 30303
(404) 581-6036
jeffrey.viscomi@usdoj.gov

/s/ Harry R. Foster, III


HARRY R. FOSTER, III
SPECIAL ASSISTANT
UNITED STATES ATTORNEY
Georgia Bar No. 270620
Bureau of Alcohol, Tobacco,
Firearms and Explosives
2600 Century Parkway, N.E.
Suite 335
Atlanta, Georgia 30345
(404) 417-2696
harry.foster@atf .gov
Attorneys for Plaintiff

29

986

RIF

Case 1:09-cv-00192-GET Document 43-2 Filed 10/28/09 Page 30 of 30

CERTIFICATE OF SERVICE
I hereby cert ify t hat I have prepared the foregoing MEMORANDUM
OF LAW IN SUPPORT OF PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT in
compliance with Local Rule 5 . 1 , NDGa., using Courier New 12 point
type and have thi s day electronically filed the document with the
Clerk of Court us ing t he CM/ECF system, which will automatically
send e-mail notifi cation of such filing to the following attorneys
of record:
John R. Monroe
H. Monroe Whitesides, Jr .
This 28th day of October, 2009.

Isl G. Jeffrey Viscomi


G. JEFFREY VISCOMI
ASSISTANT U.S. ATTORNEY
Georgia Bar No. 289074

987

RIF

Case 1:09-cv-00192-GET Document A3 -3 File d 10/28/09 t.Page 1 of 8


U.S. Department oT Jus ice

Bureau of Alcohol, Tobacco,


Firearms and Explosives

Maninsburg, WV

2540 I

www.atf.gov

903050:MMK
3311/2008-472

JUN 10 2008
Mr. Len Savage
Historic Arms, LLC
1486 Cherry Road
Franklin, Georgia 30217
Dear Mr. Savage:
This refers to your letter of April 21, 2008, to the Fireanns Technology Branch (FTB), Bureau of
Alcohol, Tobacco, Fireanns and Explosives (ATF), regarding a submitted prototype. Your
submission is a modified PKM-type, 7.62x54R caliber machinegun receiver assembly, which
you have designated the Model 54RCCS. serial number VJ. You request verification that the
sample is designed to be fired from the shoulder, has a barrel length of less than 16 inches, and is
designed for "exclusive use in a MAC-type machinegun as a caliber conversion device.
The submitted sample (photo immediately below) is comprised of the following components:

Modified PKM-type receiver, mated with a MAC-type upper.


Unmodified PKM-type top cover and feed-tray assembly.
Newly manufactured plastic foreann.
Shortened PKM-type gas system.
Barrel approximately 15-3/4 inches long.
Modi fled PKM-type machinegun bolt carrier assembly.
PKM-type bolt assembly.

~--~ Alw LL.A;,


Modet ~ Seftil No.: V1

988

. .........
'

'

RIF

Case 1:09-cv-00192-GET Document 43-3 Filed 10/28/09 Page 2 of 8


-2Mr. Len Savage

The FTB examination noted the following external markings:

On the right side of the receiver

HISTORIC ARMS LLC


FRANKLIN GA
54RCCS 7.62x54R
SERIAL No - VJ

JI

On the top of the feed-tray assembly

EA-141

1976

FTB examination noted the PKM-type receiver was modified in the following manner (see
photos, below):

The lower rear portion of the machinegun receiver where the trigger guard is mounted
and a short section of the rear, was removed.
The rear trunion/stock-mounting-block was removed.

989

RIF

Case 1:09-cv-00192-GET Document 43-3 Filed 10/28/09 Page 3 of 8

3Mr. Len Savage

A modified MAC-type upper assembly was inserted into the rear of the PKM-type
machinegun receiver and welded in place (see photos below and next page).
1

.. . -, .

'r

... _. -.

,-;....

...

.-:

-.
J ,.

990

.:

:. ~ ~

RIF

Case 1:09-cv-00192-GET Document 43-3 Filed 10/28/09 Page 4 of 8


-4-

Mr. Len Savage

The left-side bolt guide rai I was widened in a manner preventing installation of an
unmodified machinegun bolt.
A new manufactured plate was welded in place to act as a catch for the top cover lock.
A new manufactured ejection port cover was added to the left side.

991

RIF

Case 1:09-cv-00192-GET Document 43-3 Filed 10/28/09 Page 5 of 8


-5Mr. Len Savage

In addition, a modified PKM-type machinegun bolt-carrier-group was found installed. The


following characteristics/features of this bolt carrier were noted:

Gas piston was shortened.

Original sear notch removed and a plate welded on to act as a sear notch for a MAC-type
machinegun sear.

Un-Modified Bolt-Carrier Assembly

992

RIF

Case 1:09-cv-00192-GET Document 43-3 Filed 10/28/09 Page 6 of 8


-6Mr. Len Savage

Left-side guide-rail notch in the bolt widened from 3/32 inch to 1/4 inch.

Gulde-rail slot

The submitted sample was test fired on May 8, 2008, at the ATF test range, Martinsburg, West
Virginia, utilizing commercially available Wolf brand, 7.62x54R caliber ammunition. Due to the
absence of a rear trunnion block to hold the recoil spring and guide rod in place, an aluminum
plate (from stock), approximately 1-1 /4 inch x 1 inch and approximately 3/16 inch thick, was
tied to the rear of the receiver using duct tape and two plastic ties (see photo below).

993

RIF

case 1:09-cv-00192-GET Document 43-3 Filed 10/28/09 Page 7 of 8


-7-

Mr. Len Savage

With the normal factory trigger removed, the operating handle becomes the trigger which
initiates the automatic, open-bolt firing sequence. A belt of three rounds was loaded into the
sample; the operating handle was pulled back and released. The sample fired one round, and the
plastic ties separated under the recoil forces.
Next, to more securely hold the aluminum plate in place, a small section of metal chain was used
(see photo, next page). The chain was selected since it incorporated a tensioning bolt that could
securely hold the aluminum plate in place and would not be cut by the sharp edges of the
aluminum plate.

Again, a belt of three rounds of ammunition was loaded into the sample; the operating handle
was pulled back and released. The sample fired all three rounds automatically, without manual
reloading, by a single function of the trigger. This test was repeated with an additional three
rounds of ammunition, with the same result.
The use of a modified bolt did not remove the machinegun features of this bolt. It is still an
open-bolt operated device.
In review of your modifications of the PKM-type machinegun receiver, it was determined that
the original machinegun design features/characteristics were retained. Specifically, a PKM-type
machinegun receiver; an open-bolt firing mechanism; an original PKM-type machinegun belt
feed ammunition mechanism; and a shortened PKM-type machinegun barrel. It was determined
that a MAC-type upper assembly was welded to the PKM-type machinegun receiver, which
allows the PKM-type machinegun receiver to be attached to a MAC-type machinegun receiver.
These modifications do not allow for a shoulder stock. Instead, the intent is to use the shoulder
stock and/or pistol grip on the MAC-type machinegun receiver to which it is mounted. Further,
the mating of the cwo machinegun receivers, simply allows the MAC-type machinegun receiver
to be utilized in initiating the automatic firing sequence of the PKM-type mac~inegun receiver.

994

RIF

Case 1:09-cv-00192-GET Document 43-3 Filed 10/28/09 Page 8 of 8

-8Mr. Len Savage

In conclusion, FTB found that the "Model 54RCCS, serial number Vt'' submitted with your
correspondence is a weapon that shoots automatically more than one shot, without manual
reloading, by a single function of the trigger; it also incorporates the frame or receiver of a
rnachinegun. Therefore, the submitted sample constitutes a "machinegun" as defined in 26
5845{b).

u.s.c.

With regard to your request we determine if the submitted sample is a caliber conversion device
or not. The welding of MAC-type upper section to the internal portion of your PKM-type
receiver does not create a caliber conversion. Further, the combination of the MAC-type
rnachinegun and your PKM-type machinegun would result in the creation of a new machinegun.
We regret that our response in this matter has not been more favorable. Because your sample
constitutes a "machinegun," in and of itself and you are a registered SOT, the machinegun must
be properly registered with the ATF National Firearms Act Branch by close of business of the
next business day following your receipt of this letter. Please notify FTB when the registration
process is complete.
The sample will be returned to you under separate cover upon receipt of a notice of proper
registration. To expedite the return of your prototype, please provide FTB with your FedEx
account number or other appropriate carrier information within 30 days after receiving this letter.
We trust the foregoing has been responsive to your request for an evaluation and classification.
Ifwe can be of any further assistance, please contact us.
Sincerely yours,

ohn R. Spencer
Chief, irearms Technology Branch

995

RIF

Case 1:09-cv-00192-GET Document 43-4 Filed 10/28/09 Page 1 of 8

903050:MMK
3311/2008-472

Mr. Len Savage


Historic Anns, LLC
1486 Cherry Road
Franklin, Georgia 30217
Dear Mr. Savage:
This refers to your letter of April 21, 2008, to the Firearms Technology Branch (FTB), Bureau of
Alcohol, Tobacco, Firearms and Explosives (ATF), regarding a submitted prototype. Your
submission is a modified PKM-type, 7.62x54R caliber machinegun receiver assembly, which
you have designated the Model 5./RCCS, serial number VJ. You request verification that the
sample is designed to be fired from the shoulder, has a barrel length of less than 16 inches, and is
designed for "exclusive use in a MAC-type machinegun as a caliber conversion device.
The submitted sample (photo immediately below) is comprised of the following components:

Modified PKM-type receiver, mated with a MAC-type upper.


Unmodified PKM-type top cover and feed-tray assembly.
Newly manufactured plastic forearm.
Shortened PKM-type gas system.
Barrel approximately 15-3/4 inches long.
Modified PKM-type machinegun bolt carrier assembly.
PKM-type bolt assembly.

ld>cnla.d a.q,le

tlsCorlc Arms U.C. Modet 54ACC8. 8erial No.: V1

996

RIF

Case 1:09-cv-00192-GET Document 43-4 Filed 10/28/09 Page 2 of 8


-2-

Mr. Len Savage

The FTB examination noted the following external markings:


On the right side of the receiver

HISTORIC ARMS LLC

FRANKLIN GA ~@

54RCCS 7.62x54R

SERIAL

No - Vl

On the top of the feed-tray assembly

EA-141
1976

FTB examination noted the PKM-type receiver was modified in the following manner (see
photos, below):

The lower rear portion of the machinegun receiver where the trigger guard is mounted
and a short section of the rear, was removed.
The rear trunion/stock-mounting-block was removed.

997

RIF

Case 1:09-cv-00192-GET Document 43-4 Filed 10/28/09 Page 3 of 8


-3Mr. Len Savage

Serial No.: V1

A modified MAC-type upper assembly was inserted into the rear of the PKM-type
machinegun receiver and welded in place (see photos below and next page).

998

RIF

Case 1:09-cv-00192-GET Document 43-4 Filed 10/28/09 Page 4 of 8


-4-

Mr. Len Savage

The left-side bolt guide rail was widened in a manner preventing installation of an
unmodified machinegun bolt.
A new manufactured plate was welded in place to act as a catch for the top cover lock.
A new manufactured ejection port cover was added to the left side.

//
h'/
.'f

'/""

999

RIF

Case 1:09-cv-00192-GET Document 43-4 Filed 10/28/09 Page 5 of 8

-5Mr. Len Savage

In addition, a modified PKM-type machinegun bolt-carrier-group was found installed. The


following characteristics/features of this bolt carrier were noted:

Gas piston was shortened.

SCRCC8, modJfted plltonlbolt es eemb~

Original sear notch removed and a plate welded on to act as a sear notch for a MAC-type
machinegun sear.

Gulde Rall

Un-Modified Bolt-Carrier Assembly

1000

RIF

Case 1:09-cv-00192-GET Document 434 Filed 10/28/09 Page 6 of 8


-6Mr. Len Savage

Left-side guide-rail notch in the bolt widened from 3/32 inch to 1/4 inch.

Gulde-rall slot

The submitted sample was test fired on May 8, 2008, at the ATF test range, Martinsburg, West
Virginia, utilizing commercially available Wolf brand, 7.62x54R caliber ammunition. Due to the
absence of a rear trunnion block to hold the recoil spring and guide rod in place, an aluminum
plate (from stock), approximately 1-114 inch x I inch and approximately 3/16 inch thick, was
tied to the rear of the receiver using duct tape and two plastic ties (see photo below).

1001

RIF

Case 1:09-cv-00192-GET Document 43-4 Filed 10/28/09 Page 7 of 8


-7-

Mr. Len Savage

With the normal factory trigger removed, the operating handle becomes the trigger which
initiates the automatic, open-bolt firing sequence. A belt of three rounds was loaded into the
sample; the operating handle was pulled back and released. The sample fired one round, and the
plastic ties separated under the recoil forces.
Next, to more securely hold the aluminum plate in place, a small section of metal chain was used
(see photo, next page). The chain was selected since it incorporated a tensioning bolt that could
securely hold the aluminum plate in place and would not be cut by the sharp edges of the
aluminum plate.

Again, a belt of three rounds of ammunition was loaded into the sample; the operating handle
was pulled back and released. The sample fired all three rounds automatically, without manual
reloading, by a single function of the trigger. This test was repeated with an additional three
rounds of ammunition, with the same result.
The use of a modified bolt did not remove the machinegun features of this bolt. It is still an
open-bolt operated device.
In review of your modifications of the PKM-type machinegun receiver, it was determined that
the original machinegun design features/characteristics were retained. Specifically, a PKM-type
machinegun receiver; an open-bolt firing mechanism; an original PKM-type machinegun belt
feed ammunition mechanism; and a shortened PKM-type machinegun barrel. It was determined
that a MAC-type upper assembly was welded to the PKM-type machinegun receiver, which
allows the PKM-type machinegun receiver to be attached to a MAC-type machinegun receiver.
These modifications do not allow for a shoulder stock. Instead, the intent is to use the shoulder
stock and/or pistol grip on the MAC-type machinegun receiver to which it is mounted. Further,
the mating of the two machinegun receivers, simply allows the MAC-type machinegun receiver
to be utilized in initiating the automatic firing sequence of the PKM-type machinegun receiver.

1002

RIF

Case 1:09-cv-00192-GET Document 43-4 Filed 10/28/09 Page 8 of 8


-8Mr. Len Savage

In conclusion, FTB found that the "Model 54RCCS, serial number VI" submitted with your
correspondence is a weapon that shoots automatically more than one shot, without manual
reloading, by a single function of the trigger; it also incorporates the frame or receiver of a
machinegun. Therefore, the submitted sample constitutes a "machinegun" as defined in 26
u.s.c. 5845(b).
With regard to your request we determine if the submitted sample is a caliber conversion device
or not. The welding of MAC-type upper section to the internal portion of your PKM-type
receiver does not create a caliber conversion. Further, the combination of the MAC-type
machinegun and your PKM-type machinegun would result in the creation of a new machinegun.
We regret that our response in this matter has not been more favorable. Because your sample
constitutes a "machinegun," in and of itself and you are a registered SOT, the machinegun must
be properly registered with the A TF National Firearms Act Branch by close of business of the
next business day following your receipt of this letter. Please notify FTB when the registration
process is complete.
The sample will be returned to you under separate cover upon receipt of a notice of proper
registration. To expedite the return of your prototype, please provide FTB with your FedEx
account number or other appropriate carrier information within 30 days after receiving this letter.
We trust the foregoing has been responsive to your request for an evaluation and classification.
If we can be of any further assistance, please contact us.
Sincerely yours,

John R. Spencer
Chief, Firearms Technology Branch

1003

RIF

Q\ Case 1:09:.cv-00192-GET

Bureau of Alcohol, Tobacco,


Firearms and Explosives

Maninsburg, WV 25401

www.1tf.gov

JUL 11 2008

903050:JRS
3311/2008-642

Mr. Len Savage


Historic Arms, LLC
1486 Cherry Road
Franklin, Georgia 30217
Dear Mr. Savage:
This is in response to your facsimile to the Firearms Technology Branch (FTB) of the
Bureau of Alcohol, Tobacco, Fireanns and Explosives (ATF), which was received on
June 16, 2008. Your correspondence set forth your concerns with regard to FTB's
classification of your modified PKM-type 7.62x54R caliber machinegun. You submitted
the machinegun under your designation of Model 54RCCS, serial number VJ .
Specifically, you requested a reconsideration of the classification and request return of
your firearm.
The steps ATF has taken to evaluate your fireann and determine the proper classification
are outlined in our June 10, 2008, letter to you (#3311/2008-471). ATF stands by the
criteria and methods used to classify your firearm as a machinegun because it is designed
to shoot automatically more than one shot, without manual reloading, by a single function
of the trigger. Additionally, it has the design features of a machinegun and, even if the
qualifying features were removed, it would be readily restorable to shoot automatically as
a machinegun. For these reasons, ATF will not grant your request for an aJtemate
classification. No further evaluation is necessary, and none will be conducted for
classification purposes.
As you may know, Title 27, Code of Federal Regulations, Section 479.103 mandates
timely notice to ATF of all firearms manufactured by special (occupational) tax (SOT)
holders, with notice of all firearms manufactured by an SOT during a single business day
to be submitted before close of the next business day. Further, Title 18, United States
Code, Section 922(o), as codified in 27 CFR 479. I 05(a), prohibits the possession of a
machinegun manufactured after May 19, 1986. The only machineguns allowed are.those
manufactured by a licensed SOT, which are made: I) for sale or distribution to U.S.,
State, or Jocal government use or export; 2) as sales samples; or 3) at the request of and
on behalf of governmental entities. Machineguns manufactured after May 19, 1986, that
are for sale or distribution to the government are registered and transferred conditioned
on the sale or distribution for official government use or export. Dealer sales samples
require, among other things, specific information that governmental customers need a

1004

RIF

Case 1:09:.cv-00192-GET Document 43-5 Filed 10/28/09 Page ? of 2


-2-

Mr. Len Savage

demonstration of the weapon, as well as letters from the governmental entity expressing a
need for a particular model.
You registered the firearm as a short-barreled rifle under the National Firearms Act
(NFA); however, ATF has classified it as a machinegun. Therefore, the firearm is
improperly registered. On June 23, 2008, Acting Branch Chief of the NFA Branch,
Dawn Smith, informed you by telephone of your requirements to register this firearm.
By letter dated June' 18, 2008, you were also informed by ATF of the requirements to
register this firearm. To date, you have failed to comply with the requirements. Instead,
in a letter dated June 16, 2008, you sent a notice to ATF that you are awaiting ATF's
reconsideration of the classification. ATF has now responded to your request for
reconsideration.
Although the time to register this firearm has passed, in light of your request for a
reconsideration and initial attempts to register the firearm prior to classification, ATF is
allowing you to register the firearm in compliance with 27 CFR 479.103 and 479.105
(a)(c)(d) and/or ( e). You must submit proper registration and documents for this firearm
before close of business of the next business day from your receipt of this letter.. The
firearm will not be eligible for registration after this date. If you allege an exemption
under 27 CFR 479.105, please submit substantiating documents. Failure to provide
ATF with proper registration documents will result in ATF seizing and instituting
forfeiture proceedings against the machinegun.
We trust that the foregoing is responsive to your inquiry, and appreciate your
understanding of this issue.
Sincerely yours,

fl----.-......
John R. Spencer
Chi , treanns Technology Branch

1005

RIF

Case 1:09-cv-00192-GET Document 43-6 Filed 10/28/09 Page 1 of 11

IN THE UNITED STATES DISTRICT COURT


FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
CASE NO .
vs.
1:09-CV-0192-GET
ONE HISTORIC ARMS MODEL 54RCCS
"7.62X54R CALIBER CONVERSION
SYSTEM" MACHINEGUN, SERIAL NO. Vl,
Defendant.
DECLARATION OF MAX M. KINGERY
COMES NOW Max M. Kingery and states the following:

1.

am a

Firearms

Enforcement

Officer

with

Alcohol, Tobacco, Firearms and Explosives'


Technology Branch ( "FTB") 7

the

Bureau of

("ATF") 1 Firearms

have been so employed since

July 2005.

2.

My

Curriculum

Vitae

is

attached

as

Exhibit

3A

and

is

incorporated by reference.
1

ATF is the agency charged with the administration and


enforcement of the Gun Control Act, 18 U.S.C. Chapter 44, and
National Firearms Act, 26 U.S.C. Chapter 53.
2

FTB is the off ice within ATF responsible for providing


determinations, technical reports, correspondence, and training
material concerning the identification, origin, function, and
classification of firearms, ammunition, and implements of war
under the GCA, NFA, and the Arms Export Control Act, 22 U.S.C.
2778.

1006

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Case 1:09-cv-00192-GET Document 43-6 Filed 10/28/09 Page 2of11

3.

Beginning sometime in late April through early May 2008,

examined the Historic Arms Model 54RCCS Caliber Conversion


System, Serial No. Vl ("Defendant") that had been submitted to
FTB by Histo ric Arms, LLC,

4.

("Claimant") for classificatio n.

During my examination of the Defendant, I determined that the


Defendant, as submitted, was missing a trigger group and rear
trunnion/stock mounting block, 3 but

classified it as a

machinegun because it still met the definition of a machinegun


found at 26 U.S.C.

5.

Title 26 U.S.C.

5845(b).

5845(b) defines a machinegun as:

"any weapon which shoo~s, is designed to shoot, or can be


readily restored to shoot, automatically more than one shot,
without manual reloading, by a single function of the trigger.
The term shall also include the frame or receiver of any such
weapon, any part designed and intended solely and exclusively,
or combination of parts designed and intended, for use in
converting a weapon into a machinegun, and any combination of
parts from which a machinegun can be assembled, if such parts
are in the possession or under the control of a person."

A trunnion, as commonly known in the firearms industry, is


the mounting block where a barrel is attached to the receiver,
when the receiver itself is not threaded to accept a barrel. The
PK type machinegun, being of Soviet design and origin, also
contains what the Soviets called a "rear trunnion." On the PK
type machinegun, the rear trunnion is designed to contain the
recoil mechanism, serve as an attachment point for the rear stock
assembly, and to house the feed tray locking latch.
2

1007

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Case 1:09-cv-00192-GET Document 43-6 Filed 10/28/09 Page 3 of 11

6.

My examination of the Defendant led me to classify it as a


machinegun because at the time of my examination, I determined
the

Defendant

met

two

separate

prongs

of

the

statutory

that

the

Defendant

definition.

7.

Specifically,

my

examination

contained the

frame or

revealed

receiver 4 of a

PK type machinegun

because the manufacturer had removed or defeated the design


characteristics

on

semiautomatic

PK

receiver

that

ATF

requires to prevent automatic fire.

8.

Any PK type receiver which has had these features defeated or


removed is a machinegun.

9.

Under 26 U.S.C .

5845(b),

the

"frame or

rece i ver"

of

machinegun is a machinegun in and of itse l f.

" Specifically, a "frame" or "receiver" i s the "part of a


firearm which provides housing for the hammer, bolt or
breechblock and firing mechanism, and which is usua l ly threaded
at its forward portion to receive the barrel . " 27 C.F . R .
479.11. It is also that portion of the weapon bearing the
firearm's serial number. See 26 U.S.C. 5842(a); 27 C.F.R.
479.102 .
3

1008

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Case 1:09-cv-00192-GET Document 43-6 Filed 10/28/09 Page 4 of 11

10.

Additionally,
shoots

my

examination

automatically

more

revealed

than

one

that

shot,

the

Defendant

without

manual

reloading, by a single function of the trigger 5

1 1.

To verify that the Defendant shoots auto matically, I attached


a

1 inch by 1 1I4 inch aluminum plate to the rear of the

Defendant utilizing a short piece of chain and a tensioning


bolt.

12 .

After attaching these parts, I loaded the Defendant with three


rounds of 7.62x54R ammunition and retracted and released the
operating handle which initiated and automatic firing sequence
that resulted in the firing of all three rounds.

13 .

Under

26

U.S . C .

5845(b),

any

firearm

that

shoots

automatically more than one shot, without manual reloading is


a machinegun.

Under the NFA, the term "trigger" is not defined. ATF has
consistently held that the term "trigger" is not limited to a
conventional trigger, but rather refers to any part of a firearm
that initiates the firing sequence.
In the case at hand, the
Defendant was submitted without a traditional trigger.
I was
able to initiate the firing sequence by simply retracting and
releasing the operating handle on the Defendant. Hence, in the
case of the Defendant, the operating handle is the trigger for
purposes of the statutory definition.
4

1009

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Case 1:09-cv-00192-GET Document 43-6 Filed 10/28/09 Page 5of11

14.

Based on the above-mentioned facts, I classified the Defendant


as a machinegun as it contains the frame or receiver of a
machinegun

and

shoots

automatically more

than

one

shot,

witho ut manual reloading, by a single function of the trigger.

lS.

My findings and conclusions were documented in a letter dated


June 10, 2008, to Claimant, the manufacturer of the Defendant.

16 .

The June 10, 2008, letter to Claimant has been submitted to


this Court as Exhibit 1 and is incorporated by reference.

17.

On April lS, 2009, I repeated the above-mentioned test at the


DeKalb County Police Firing Range in Lithonia, Georgia.

This

event was videotaped and is incorporated as Exhibits SA and


SB.

18 .

The test was identical to the previous test except that the
Defendant

was

loaded

with

seven

rounds

of

commercially

available 7.62xS4R Wolf brand ammunition.

19 .

The Defendant automatically fired all seven rounds by a single


function of the trigger.
5

1010

RIF

Case 1:09-cv-00192-GET Document 43-6 Filed 10/28/09 Page 6of11

2 0.

During the discovery process in this forfeiture action,

learned additional information regarding the origin of the


parts

used

to

construct

the

Defendant,

the

design

and

manufacturing pro cess utilized t o c o nstruct the Defendant, and


the

Claimant's

testing

of

the

Defendant

prior

to

its

submissio n to ATF.

21 .

In

light

learned,

of

the

aforesaid

additional

information

that

I have now determined that the Defendant meets two

additional prongs of the statutory definition of machinegun,


along with the other two prongs of the statutory definition
cited in the June 10, 2008, Letter to Claimant.

22.

As I noted in my original examination,

the Defendant fires

from an open bolt 0 and utilizes a fixed firing pin 1

Firing from an open bolt refers to a method of operation by


which a machinegun's bolt is retracted to its rearmost position
and is held in such position until the trigger is activated .
Upon activation, normally the trigger acts on the sear, releasing
the bolt, which is propelled forward by the action of a spring.
The bolt strips a round of ammunition from the clip or belt and
forces the round of ammunition into the chamber where a fixed
firing pin, located on the bolt face, ignites the primer firing
the round. The recoil or gas generated by the ignition of the
gunpowder forces the bolt back to its rearmost position and the
cycle repeats automatically until either the trigger is released
and the sear engages the bolt, the machinegun malfunctions, or
6

1011

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Case 1:09-cv-00192-GET Document 43-6 Filed 10/28/09 Page 7 of 11

23.

Open bolt firing and utilization of a fixed firing pin are


characteristics

of

machineguns

and

since

1982,

ATF

has

classified all firearms that have these two design features as


machineguns.

24.

Based on statements made by Claimant's president regarding the


Defendant's design,

I have subsequently determined that the

Defendant is a firearm that is designed to shoot automatically


more than one shot, without manual reloading.

25.

Under 26 U.S.C.
shoot

5845(b), any firearm that is designed to

automatically

more

than

one

shot,

without

manual

reloading is a machinegun.

26 .

Furthermore, based on Claimant's president's statements during


Deposition

and

automatically

on

video

prior

to

clips
its

of

the

Defendant

submission,

shooting

subsequently

all ammunition is expended.


7

PK machineguns do not utilize a traditional fixed firing


pin, rather they utilize a rotating b o lt that locks the firing
pin in the battery p o sition when the b o lt is moved forward, not
when the trigger is pulled. The design is the functional
equivalent to a traditional fixed firing pin and is clearly
distinguishable fr om "hammer fired" firing pins common on
semiautomatics which are held under spring t e nsion and released
to forward when the trigger is pulled.
7

1012

RIF

Case 1:09-cv-00192-GET Document 43-6 Filed 10/28/09 Page 8 of 11

determined that the Defendant can be readily restored to shoot


automatically more than one shot, without manual reloading, by
a single function of the trigger.

27.

As stated in ATF's June 10, 2008,

letter,

I determined that

the Defendant contained the frame or receiver of a machinegun,


but as submitted, the Defendant was not capable of firing due
to the manufacturer's failure to submit it with a

trigger

group and rear trunni o n/sto ck assembly.

28.

During my original examination of the Defendant, I was unable


to determine

the

origin of the

PK type

receiver

used

to

construct the Defendant.

29 .

The above-stated failure was due in part to the fact that the
PK type receiver's original manufacturer's required markings,
including manufacturer, model, and serial number, were either
removed or obscured.

30 .

Since I did not know the origin of the PK type receiver used
to

construct

the

Defendant,

had

no

evidence

Defendant had previously shot automatically more

that

the

than one

1013

RIF

Case 1:09-cv-00192-GET Document 43-6 Filed 10/28/09 Page 9 of 11

shot, without manual reloading, by a single function of the


trigger.

31 .

Absent such evidence, I c o uld not equivocally conclude that


the Defendant could be readily restored to shoot automatically
more than one sho t,

without manual reloading,

by a

single

function of the trigger because I could not restore a firearm


to shoot automatically more than one shot,

without manual

reloading, by a single function of the trigger if that firearm


had not previo usly sho t

automatically more than one shot,

without manual reloading, by a single function of the trigger.

32.

Based on the information learned during discovery, I now know


that the Defendant shot automatically more

than one shot,

wi thout manual reloading, b y a single function of the trigger


at some date prior to its submission to ATF.

33 .

In light of this fact,

have subsequently determined the

Defendant can be readily restored to shoot automatically more


than one shot, wi thout manual reloading, by a single function
of the trigger .

1014

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Case 1:09-cv-00192-GET Document 43-6 Filed 10/28/09 Page 10 of 11

34 .

In

light

of

the

automatically,

fact

that

the

Defendant previously

shot

the act of attaching a 1 inch by 1 1/4 inch

aluminum plate to the rear o f the Defendant utilizing apiece


of chain and a

tensioning b o lt restored the

Defendant to

firing c o nditi o n.

35 .

The act of restoring the Defendant to firing condition took


approximately two minutes and required no tools.

36.

After attaching these parts, I l o aded the Defendant with three


rounds of 7.62x54R ammunitio n and retracted and released the
operating handle which initiated and automatic firing sequence
that resulted in the firing o f all three rounds.

37 .

Under

26

U.S.C.

5 845(b),

any

firearm

that

shoots

automatically mo re than o ne sho t, without manual reloading is


a machinegun.

38.

Based on the above-mentioned facts, I have determined that the


Defendant is a machinegun as it c o ntains the frame or receiver
of a machinegun and it shoots, is designed to shoot, and can
be readily resto red to shoot more

than one shot,

without

manual reloading, by a single function of the trigger.

10

1015

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Case 1:09-cv-00192-GET Document 43-6 Filed 10/28/09 Page 11 of 11

39.

Pursuant to 28 U.S.C.

1746, I declare, under penalty of

perjury, that the facts stated above are true and correct to
the best of my knowledge and belief.

This 28th day of October, 2009 .

.. r- > ...,....,..,...._,._\. i...,


o==::.....;:~

NOTARY PUBLIC
STA-E OF WEST Vl'IG1N1A

ALLISON L. ZACHERL
19 :SCAl..AOE LANE
t.Wr!NSBUAG WV 25403
My co'""'HiO" 1x::1es cc::ioe 11. :acne

11

1016

RIF

Case 1:09-cv-00192-GET Document 43-7 Filed 10/28/09 Page 1 of 6

QUALIFICATIONS
FIREARMS ENFORCEMENT OFFICER (FEO)
MAX M. KINGERY
Current - Presently employed by the U.S. Department of Justice, Bureau of Alcohol, Tobacco,
firearms and Explosives, Martinsburg, West Virginia, as a Firearms Enforcement Officer. My
duties include the following: ( 1) Provide technical information regarding ammunition and
fireann identification, operation, and design for the purpose of assisting the Bureau, as well as
the law enforcement community in general, in the implementation of the Gun Control Act of
1968 and the National Firearms Act. (2) Conduct examinations and testing of ammunition and
firearms and related devices submitted as evidence. (3) Prepare official responses to written
inquiries from the firearms industry and the general public. (4) Utilize and assist in maintaining
ATF fireanns reference collection of approximately 9,000 firearms and extensive reference
library of books, catalogs, and official documents relating to the firearms field . (5) Provide
interagency, as well as law enforcement wide, training regarding ammunition and fireann
identification, operation, design, and nexus. (6) Conduct evaluations of industry imported
firearms intended for retail.
Responsible for development and implementation of a new silencer testing instrumentation
system known as the Sound Impulse Measurement System (SIMS). Assisted in developing the
testing criteria and procedures for using this new system and taught the new procedure to FTB.

May 2005 - July 2005 - Sergeant, West Virginia State Police.


Detachment Commander, Criminal Investigations, Accident Reconstructionist. Assisted and
instructed local law enforcement in fatal and other serious motor vehicle collisions. Supervised
criminal investigations initiated by detachment members, maintained order and discipline of
detachment members, occasionally conducted internal investigations of department members
from other detachments, and acted as District Commander during the Commander's absence.
March 2004 - May 2005 - Corporal, West Virginia State Police
Assistant Detachment Commander, occasionally acting Detachment Commander. Conducted
criminal investigations, narcotics investigations, investigations of firearms violations and sexual
offenses, and accident reconstructions, and also assisted and instructed local law enforcement in
fatal and other serious motor vehicle collisions. Assisted and instructed local law enforcement in
search warrants for narcotics and fireanns-related investigations and acted as special investigator
for the Morgan County Prosecuting Attorney's Office upon request. Secondary duties as a
Sniper/Observer for the Special Response Team (SRT), Sniper Team North. Assisted in
developing training curriculum and scenarios for this SRT.
May 1995 - March 2004 - Trooper, West Virginia State Police
Performed duties of sworn civilian law enforcement officer, detective, and criminal investigator.
Conducted searches of persons and/or property. Maintained chain-of-custody for persons or
property. Prepared and delivered testimony in court. Perfonned work-related inspections or
evaluations to detennine compliance with laws and regulations. Utilized established handling
procedures for the collection and examination of firearms evidence. Enforced State and Federal
firearms laws. Initiated, conducted, and assisted in criminal investigation(s) of violations of
applicable fireanns laws. Prepared written investigative reports. Presented oral and written

1017

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Case 1:09-cv-00192-GET Document 43-7 Filed 10/28/09 Page 2 of 6


-2-

Max M. Kingery
briefings to supervisors. Researched, used and/or cited legal reference materials in preparation
of reports or testimony. Supervised investigations and the execution of search warrants for
firearms, narcotics, and other property. Worked with U.S. and/or foreign diplomatic staff in
executing security operations. Served as a sniper for a tactical special response force. Learned
and used unarmed defensive tactics. Maintained familiarization with and marksmanship of
various types of firearms.
September 1991-March 1994 - Sergeant, United States Marine Corps
Aviation Electronics Mechanic and Hybrid Test Station Technician. Primary duties were
assistant shop supervisor and shift supervisor. Was responsible for maintenance turnaround of
items submitted, repair order supplies, and quality control. Trained and assisted junior Marines
in their duties and in development of leadership skills.
September 1986-September 1991 - Private to Corporal, United States Marine Corps.
Served as an infantry squad leader during armed conflicts. Conducted physical surveillance.
Escorted prisoners. Conducted searches of persons and/or property. Performed inspections and
evaluations to determine compliance with regulations of physical and informational security.
Conducted training in a wide variety of firearms and weapons familiarization and marksmanship.
Conducted training in small unit armed combat tactics. Implemented policies and procedures
affecting physical and/or information security. Worked with explosives. Provided armed
security for highly restricted facilities or areas where there is a potential for significant breach of
national security. Worked with foreign nationals. Learned and utilized unarmed combat
techniques.
March 1984 - September 1986 - l 91h Group Special Forces (Arbm.) 2nd Battalion
Served in U.S. Army National Guard Special Forces as a communications specialist.
Occasionally served as a special operations force instructor to other units. Worked with
explosives, a wide variety of weapons, and weapon systems. Conducted airborne operations.
Conducted searches of persons and/or property. Evaluated and implemented physical and
informational security. Provided security risk and threat assessments. Worked with foreign
nationals

EDUCATION and TRAINING:

During service with the Special Forces and again with the United States Marine Corps, I
received specialized training in the use and identification of all military light and heavy
weapons, both domestic and foreign, in use by the U.S. Military and Foreign Military
forces.
Associates in Applied Science - Police Science, Marshall University, 1996
Graduation Certificate - West Virginia State Trooper, West Virginia State Police
Academy, 1995
Graduation Certificate - Huntington High School, 1986
FBI Basic Sniper/Observer course, 2000
Interview/Interrogation Techniques, 1995, 1998
Annual In-Service re-certification course(s), 1997 thru 2004
Cyber Cops 101, 1997
Law Enforcement Seminar, 1998, 1999, 200 l, 2002, 2004
U.S. Army Airborne School, 1985

1018

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Case 1:09-cv-00192-GET Document 43-7 Filed 10/28/09 Page 3 of 6

-3Max M. Kingery

08/27-28/05 M2 & Thompson (Earl Griffith)


08/02/05 STEN (Mike Curtis)
08/05/05 Lewis (Mike Curtis)
08/09/05 Thompson (Mike Curtis)
08/11105 B.A.R. (Mike Curtis)
08/16/05 M2 Carbine (Mike Curtis)
08/16/05 GCA definitions (Rick Vasquez)
08/17/05 Range certification (Rick Vasquez & Mike Curtis)
08/19/05 NFA Forms and tracking (Garry Shaible)
08/26/05 NFA Definitions (Rick Vasquez)
09/01/05 - 09102105 SIG ARMS (Factory Instructor)
09/12/05 - 09/16/05 H&K Def. (Factory Instructor)
09/20/05 - 09/22/05 Federal Prem. Factory Tour
09126105 - 09/28/05 Glock Inc. (Factory Instructor)
10/09/05 - Gatling Gun (Mike Curtis)
10/27/05 - M-16/AR type (Mike Curtis)
11/07/05 -AK type (Mike Curtis)
11/21/05 -Ml0/11 type (Mike Curtis
11/28/05 - Machinegun conversions (Rick Vasquez, Mike Knapp)
11129105 - MG34/42 (Mike Curtis)
12/12/05 to 12/16/05 - NEXUS
01/06/06- Machinegun shoot (Quantico)
01110/06, 04/10/07, 11114/08 - SIMS and Principles of Acoustic Measurements
03/06/06 to 03/10/06- FNH Armorer's course.
04103106 to 04/07/06 - NEXUS (ammunition and firearms)
06/ 12/06 to 06/ 16/06 - Instructor (USMC Combat Rifle Marksmanship)
09120106 to 09/22/06 - S&W Revolver Armorer's Course.
09/23/06 - Springfield Armory Factory tour.
09125106 to 09/27/06 - S&W Pistol Armorer' s Course.

COURSES PROVIDED AS FEO INSTRUCTOR:

Concealed Firearms and Destructive Devices (Defeating X-Ray) Various locations


Firearms Safety (Firearms NEXUS Course) ATF Center, Martinsburg, WV
Firearms NEXUS ATF Center, Martinsburg, WV ~ FLETC Glenco, GA.
Firearms Identification and Nomenclature (NFA Class) ATF Center, Martinsburg, WV
Ammunition Identification (NFA Class) ATF Center; Martinsburg, WV
Sound Meter Testing (Silencer testing and Evaluation) Various locations
Comprehensive Firearms and Firearms law identification, Huntington, WV
Iraq, Agent pre-deployment firearms certification, Ft. A. P. Hill, VA.
Air Marshal disguised firearms, Pittsburgh, PA
Machineguns and Machinegun conversions, various locations.
Silencers, ATF Center, Martinsburg, WV

1019

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Case 1:09-cv-00192-GET Document 43-7 Filed 10/28/09 Page 4 of 6


-4Max M. Kingery

CERTIFICATES AND LICENSES:

S&W Academy, Pistol Armorer, 09/27/06


S&W Academy, Revolver Armorer, 09/22/06
NEXUS of ammunition and firearms, 04/07/2006
Fabrique National Herstal, Armorer, 2006
Sig Arms Academy, Armorer, 2005
Glock, Armorer, 2005
Heckler and Koch, Armorer, 2005
Instructor Development Course, 200 l
FBI Basic Sniper/Observer, 2000
FFL from 1987 to 1990
Secret Security Clearance, U.S. Army, 1984

HONORS, AWARDS, MEMBERSHIPS, ETC.:

Certificates of Appreciation, 1984, 1989, 1999, 2003, 2004


National Defense Service Medal
Platoon High Shooter (Meritorious Mast), 1986
Sea Service Deployment Ribbon (2"d Award)
Meritorious Mast, 1988, 1992
Southwest Asia Service Medal (2 Stars)
Good Conduct Medal (2nd Award)
Kuwait Liberation Medal
Rifle Expert (6 1h Award)
Combat Action Ribbon
Pistol Master
Navy Unit Commendation
Navy Arctic Service Ribbon
Past Member - West Virginia Trooper's Association
Past Member - National Trooper's Coalition
Past Member - Snipers on Line
Past Member - American Sniper Association
Past Member - Society of Accident Reconstructionists
Member - International Network of Collision/Accident Reconstructionists
Past Member - National Association of Professional Accident Reconstruction Specialists

SEARCH WARRANTS:
FEDERAL:
01/24/06 Miami, FL
01 /25/06 Miami, FL
01/27/06 Jefferson County, WV
l 1/08/06 St. Paul, MN
03/ 12/07 Chicago, II
04/08/09 Detroit, MI
05104109 Clearfield, PA

1020

RIF

Case 1:09-cv-00192-GET Document 43-7 Filed 10/28/09 Page 5 of 6

- 5Max M. Kingery
STATE:
Many in Berkeley County
Many in Morgan County
2 in Jefferson County

SPECIAL PROJECTS:

Import destruction diagram project - 09105 through


Serial killer weapons - 10/03/05
Zero confirmation of halo sights. - l 0/28/05
Sniper Rifle Accuracy eval (ammo shot group size, Federal v Homady) - 12/27/05
Sniper Rifle Accuracy eval (ammo shot group size, Federal v Homady) - 12/29/05
Sound Impulse Measurement System
(Set up, program, calibrate, teach) - 10/05 thru 02/06
Cartridge Headstamp and Identification Catalog - 04110106 to present
Authored FTBs Silencer Testing SOP - 08/2006
Sniper silencer testing for USMC - 03/2008

SPECIAL EVENTS:

AUSA Show - I 0/04/05, 10/2007


Imports Conference - 10/1 8-10/ 19 of2005
Observer of DSS Sniper Rifle eval/trial - 01105106
SAR Conference - 08/23/06
SHOT Show - 02/2008

COURT APPEARANCES:
Federal Court:
U.S. v James Orr
U.S. v Arthur Harriston
U.S. v Jessie L. Bobbit
U.S. v David R. Olofson

Firearms Case
Narcotics Case
Firearms Case
Firearms Case

Federal Grand Jury:


U.S. v John Wills
U.S. v Lisa Funk
U.S. v Lisa Funk et. al.
U.S. v Alex Grant
Washington D.C.

Firearms Case
Narcotics Case
Narcotics and Firearms Case
Firearms Case
Firearms Definitions (GCA & NFA)

State Grand Jury:


Four appearances (many cases) in Berkeley County
Two appearances (many cases) in Morgan County

1021

RIF

Case 1:09-cv-00192-GET Document 43-7 Filed 10/28/09 Page 6 of 6

-6Max M. Kingery
San Diego, CA
State Circuit Court:
West Virginia Berkeley County: Numerous, Primarily sex offenses and homicides
Morgan County: Numerous, Primarily sex offenses, firearms violations, and fatal
collisions
Pendleton County: Sex offense
State Magistrate Court:
Numerous, in Berkeley, Morgan, Jefferson, Grant and Hardy Counties
State Traffic Court:
Numerous, in Berkeley, Morgan, Jefferson, Grant, Randolph, Harrison,
and Putnum Counties.
As an Expert FEO:

U.S. Federal Court, Lynchburg, VA - SBS


U.S. Federal Court, Tulsa, OK. - SBS
U.S. Federal Court, Milwaukee, WI - MG
U.S. Federal Court, Richmond, VA - SBS
U.S. Federal Court, Ft. Worth, TX - Sil.
U.S. Federal Court, Prescott, AZ - Sil.
U.S. Federal Court, D.C. - Antique/Firearm
U.S. Federal Court, Nashville, TN - MG

1022

RIF

Case 1:09-cv-00192-GET Document 43-8 Filed 10/28/09 Page 1of3

IN THE UNITED STATES DISTRICT COURT


FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
CASE NO.
vs.
1:09-CV-0192-GET
ONE HISTORIC ARMS MODEL 54RCCS
"7.62XS4R CALIBER CONVERSION
SYSTEM" MACHINEGUN, SERIAL NO. Vl,
Defendant.
DECLARATION OF JOHN R. SPENCER
COMES NOW John R. Spencer and states the following:

1.

I am a Special Agent with the Bureau of Alcohol, Tobacco,


Firearms and Explosives

("ATF") . 1

I have been so employed

since 1992.

2.

Since

September

2007,

have

been

the

Chief,

Firearms

Technology Branch ("FTB") 2

ATF is the agency charged with the administration and


enforcement of the Gun Contro l Act, 18 U.S.C. Chapter 44, and
National Firearms Act, 26 U.S.C. Chapter 53.
2

FTB is the office within ATF respo nsible for providing


determinations, technical repo rts, correspondence, and training
material concerning the identification, origin, function, and
classification of firearms, ammuniti on, and implements of war
under the GCA, NFA, and the Arms Expo rt Control Act, 22 U.S.C.
2778.

1023

RIF

Case 1:09-cv-00192-GET Document 43-8 Filed 10/28/09 Page 2 of 3

3.

In April 2008,

FTB received the Historic Arms Model 54RCCS

Caliber Conversion System, Serial No . Vl

("Defendant")

that

had been submitted for classification.

4.

The

Defendant

was

examined

and

test

fired

by

Firearms

Enforcement Offi c er Max M. Kingery ("FEO Kingery") .

5.

FEO Kingery c lassified the Defendant as a machinegun because


it meets the definition of a mac hinegun found at 26 U.S.C.
5845 {b) .

6.

FEO Kingery's findings and conclusions were documented in a


letter

dated

June

10,

2008,

to

Historic

Arms,

LLC,

("Claimant") the manufacturer or the Defendant.

7.

I signed the June 10, 2008, letter which has been submitted to
this Court as Exhibit 1 and is incorporated by reference.

8.

On July 11,
president

2008,

denying

signed a
his

second letter to Claimant's

request

to

reconsider

ATF's

classification of the Defendant as a machinegun and informing


Claimant's

president

that

he

must

amend

his

Form

2,

registering the Defendant as a machinegun.


2

1024

RIF

Case 1:09-cv-00192-GET Document 43-8 Filed 10/28/09 Page 3 of 3

9.

The July 11, 2008, letter has been submitted to this Court as
Exhibit 2 and is incorporated by reference.

10.

Claimant's president refused to amend his Form 2 and in August


2008,

the Defendant was

forwarded to ATF' s Atlanta Field

Division for seizure and forfeiture.

11.

Pursuant to 28 U.S.C.

1746,

I declare,

under penalty of

perjury, that the facts stated above are true and correct to
the best o f my knowledge and belief.

This 28th day of October, 20 09.

R. SPENCER
U

AU OF ALCOHOL, T BACCO,

REARMS AND EXPLOSIVES

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RIF

Case 1:09-cv-00192-GET Document 43-9


Government Exhibit 5A
U.S. v. One Historic Arms 54rccs
n.w,""'~s.i.;.c.r,

U.rd51C..~Prwzr1t

PROTECTED
MATERIAL

LIMITED
OFFICIAL USE

,,.,Jr;IQll,-..,,...,,,

DVD-R
copy

FTB TEST FIRING


Government Exhibit 58
U.S . v . One Historic Arms 54rccs

n.-11$.llnll

PROTECTED

MATERIAL

""~--

DVD-R
copy

DeKalb Police Range Test


Firing

April15, 2009

1026

RIF

Case 1:09-cv-00192-GET Document 43-10 Filed 10/28/09 Page 1of1

",a~tJ.-

"__..

llt.llltll

llH\t:l~lUSl
It .. ;

ti.~ ~' 1

j '- - - -

~nom:m1

coR

MMtRl~l
i.tJ~tPtc1'UttCDriP'

P\a\nt\ffS Mot\on for


J udaemen'

summar.J

...
1027

RIF

..

Case 1:09-cv-00192-GET Document 43-11 Filed 10/28/09 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT


FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
)
)
)
)
v.
)
ONE HISTORIC ARMS MODEL 54RCCS
)
"7.62X54R CALIBER CONVERSION
)
SYSTEM" MACHINE.GUN, SERIAL NO. Vl, )
)
)
Defendant.

UNITED STATES OF AMERICA,


Plaintiff,

No. 1:09-CV-00192-GET

CLAIMANT'S RESPONSE TO PLAINTIFF'S FIRST REQUESTS FOR


ADMISSION
I. Admit that the HA54RCCS is designed to and does expel a projectile by means
of an explosive.
Response: Denied. The HA54RCCS was designed specifically not to expel a
projectile by means of an explosive unless it is installed into or converted into
a machincgun. As a point of fact, the HA54RCCS by itself does nothing and
will not function in any way.
r

2. Admit that the HA54RCCS was originally registered as a short-barreled rifle.

Response: Admitted, as the HA54RCCS was, and continues to be, registered


as a short-barreled rifle.
3. Admit that the HA54RCCS is a machinegun as it is designed to shoot, or can be
readily restored to shoot, automatically more than one shot, without manual
reloading, by single function of the trigger.

Response: Denied. The HA54RCCS is designed to not shoot even a single


round unless it is installed in a machinegun. Since it never was a machinegun
it cannot be "restored" under the definition of "bring back to its original
state".
4. Admit that the HA54RCCS utilizes the frame or receiver of a PK-type
machinegun.

l :09-CV-OO 192-GET

Historic Arms, LLC

1028

l IP ug(!

RIF

Case 1:09-cv-00192-GET Document 43-11 Filed 10/28/09 Page 2 of 8

Response: Denied. The HA54RCCS does not use the frame or receiver of a
PK-type machinegun. The receiver design is unique unto itself.
5. Admit that the HA54RCCS utilizes the same operating principles/firing
sequence a as a PK-type machinegun.

Denied. The HA54RCCS only utilizes the operating principals of the host
machinegun to which it is installed and does not operate at all outside of one.
The feed cycle of the ammunition does indeed replicate a PK type firearm
both the semiautomatic version as well as the machinegun version. It must be
also be noted that the HA54RCCS and semiautomatic as well as the
machinegun version of PK-type firearms are all gas operated, in that the
operation is dependent on propellant gases to drive the operational
components via a gas piston. The HA54RCCS gas system is different in
design than that of any PK-type firearm of which Claimant is aware.
6. Admit that the HA54RCCS is constructed from a semiautomatic PK-type
receiver which was modified to facilitate automatic fire.

Response: Denied. Although the HA54RCCS is constructed from. portions of


a semiautomatic receiver [among other things], it was constructed and
designed to be installed in and to allow use of 7 .62x54R ammunition in a
lawfully possessed MAC 10 machinegun.
7. Admit that Historic Arms, LLC, modified a semiautomatic PK-type receiver into
a PK-type machinegun receiver when it manufactured the HA54RCCS.

Response: Denied. The HA54RCCS is constructed partially from portions of


a semiautomatic receiver, although this was only done for expediency .in the
construction of a sample -- the production version would be newly
manufactured. The HA54RCCS is different both dimensionally and design
from that of any known version of a PK-type firearm, semiautomatic or
machinegun. It is specifically designed to b~ installed in and to allow use of
7.62x54R ammunition in a lawfully possessed MAC 10 machinegun.
8. Admit that the HA54RCCS will fire automatically without permanent
modifications.

Response: Objection. The request is vague in that it does not describe what
would constitute a "permanent modification." Based on the foregoing
1:09-CV-OO192-GET

Historic Arms, LLC

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Case 1:09-cv-00192-GET Document 43-11 Filed 10/28/09 Page 3 of 8

objection, Claimant admits that the HA54RCCS can be modified to fire


automatically, and Claimant further admits that such modifications, if made
correctly, could be "undone," and thus restore the HA54RCCS to its preautomatic non-firing condition.
9. Admit that the HA54RCCS contains the following characteristics of a general
purpose machinegun: belt fed, open bolt firing, and fixed firing pin.

Response: Denied. Claimant does not admit that the characteristics listed are
"characteristics of a general purpose machinegun," and notes that "general
purpose machinegun" is neither a defined term nor a common term in the
firearms industry. Claimant admits that the HA54RCCS contains the
characteristics listed as those terms are commonly used in the firearms
industry.
10. Admit that the HA54RCCS is a firearm as defined by 26 U.S.C. 5845 (a).

Response: Admitted, as the HA54RCCS was registered as a short-barreled


rifle as instructed by the chief of FTB and as approved by ATF.
11. Admit that the HA54RCCS is a firearm as defined by 26 U.S.C. 5845(b).

Denied. The HA54RCCS is specifically designed not to function or even


discharge one round unless installed in a machinegun. ATF considers devices
that are identical in function to not even be Title I firearms (i.e. Devices that
function as MAC 10 type "uppers" with built in feed devices, open bolt in
. operation,
and
containing
a
fixed
a
firing
pin.).
To address the specifics of26 USC 5845(b):
The HA54RCCS does not "shoot", just as no MAC 10 type "upper"
shoots, it requires a machinegun receiver to "shoot".
The HA54RCCS is specifically "designed" not to "shoot" as any MAC
10 type "upper" is designed specifically not to shoot, it requires a
machinegun receiver to "shoot".
The HA54RCCS can not be "readily restored to shoot" because it never
was a machinegun, therefore cannot be "brought back into its original
state or condition" of something it never was originally.
1:09-CV-OO192-GET

Historic Arms, LLC

1030

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RIF

..

Case 1:09-cv-00192-GET Document 43-11 Filed 10/28/09 Page 4 of 8

The HA54RCCS does not contain the receiver or frame of a


machinegun.
The HA54RCCS is not designed and intended solely and exclusively, or
a combination of parts designed and intended, for use in converting a
weapon into a machinegun. It is not possible for the HA54RCCS to
convert a machinegun into a machinegun.
Tfle HA54RCCS is only one part in a "combination of parts" required
to fire more than one shot per function of the trigger.
12. Admit that the HA54RCCS will expel a projectile by means of an explosive
without utilizing a MAC-type receiver.

Response: Denied. By itself, the HA54RCCS will not expel a projectile.


Installing the HA54RCCS into a MAC lower is one method that could be used
to allow the HA54RCCS to expel a projectile. It also is possible to cause the
' HA54RCCS to expel a projectile by adding a combination of parts to the
HA54RCCS to convert it into a machine gun.
13. Admit that the HA54RCCS is not a hammer or striker fired firearm.
f

Response: Admitted

14. Admit that the HA54RCCS utilizes a PK-type machinegun bolt that was
modified by Historic Arms, LLC.

Response: Admitted.
15. Admit that the HA54RCCS (with or without a MAC receiver) is what is
commonly referred to as a belt fed general purpose machinegun.

Response: Denied. The HA54RCCS is commonly referred to as a "MAC


upper."
16. Admit that the addition of a - 1 inch x 1 inch aluminum plate, a short length of
chain, a small piece of duct tape and tensioning bolt are not permanent
modifications.

1:09-CV-OO192-GET

Historic Anns, LLC

1031

41P age

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Case 1:09-cv-00192-GET Document 43-11 Filed 10/28/09 Page 5 of 8

Response: Denied. The request does not indicate by what means the
collection of parts described is added, nor what the collection of parts is added
to. For example, welding the metal collection of parts into place may be
"permanent." Taping them into place may not be "permanent."

17. Admit that the HA54RCCS would fire automatically until the ammunition was
expended if it were loaded with a belt of ammunition and positioned against any
solid object (such that the object would contain the bolt, recoil spring and
operating rod) and the bolt was retracted and released.

Response: Objection. The request does not seek admission of an existing fact,
but rather calls for prediction that a hypothetical set of facts would produce a
certain result. Subject to the foregoing objection, Claimant admits that it is
possible that any MAC upper, including the HA54RCCS, could be made to
fire as described in the request.
18. Admit that the HA54RCCS would fire automatically ntil the ammunition was
expended if it were loaded with a belt of ammunition and any object or objects
capable of containing the bolt, recoil spring and operating rod were attached to the
rear of the HA54RCCS and the bolt was retracted and released.

Response: Objection. The request does not seek admission of an


existing fact, but rather calls for prediction that a hypothetical set of
facts would produce a certain result. Subject to the foregoing
objection, Claimant admits that it is possible that any MAC upper,
including the HA54RCCS, could be made to fire as described in the
request.
19. Admit that the HA54RCCS is readily restorable to fire automatically.

Response: Denied. The HA54RCCS can not be "readily restored to shoot"


because it never was a machinegun, therefore cannot be "brought back into its
original state or condition" of something it never was originally.
20. Admit that it would hot take a skilled machinist to enable the HA54RCCS to
fire automatically

1:09-CV-OO 192-GET

Historic Arms, LLC

1032

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Case 1:09-cv-00192-GET Document 43-11 Filed 10/28/09 Page 6 of 8

Response: Objection. The reqest is vague in that it does not specify whether
it refers to the HA54RCCS firing automatically with, or without, the MAC
lower for which it was intended. Subject to the foregoing objection, Claimant
admits that it does not take a skilled machinist to install the HA54RCCS into
the MAC lower for which it was intended, and that such combination of
HA54RCCS and MAC lower would be expected to fire automatically (because
the MAC lower is a machine gun). It would take somewhat more skill, but
probably not a "skilled machinist," to employ a combination of parts to
attempt to convert the HA54RCCS into a machinegun, as Plaintiff claims to
have done.
21. Admit that the HA54RCCS will fire automatically with the addition of
common pieces of hardware and that this could be accomplished in a few minutes
w_ith few, if any, common tools.

Response: Objection. The request is vague and does not request an


admission of an existing fact, but rather calls for a prediction of what would
happen if unspecified "pieces of hardware" were installed with unspecified
"few, in any, common tools." Subject to the foregoing objection, Claimant
admits that it is possible to convert a MAC upper, including the HA54RCCS,
into a machine gun using a collection of parts.
22. Admit that the 1- inch x 1 inch aluminum plate, a short length of chain, a
small piece of duct tape and tensioning bolt are not a conversion device designed
to convert a semiautomatic firearm into a machinegun.

Response:
device.

Denied. As described, the parts could comprise a conversion

23. Admit that the 1- inch x 1 inch aluminum plate, a short length of chain, a
small piece of duct tape and tensioning bolt are not a combination of parts
designed to convert a semiautomatic firearm into a machinegun.

Response: Denied. As described, the parts could comprise a collection of


parts.

1:09-CV-OO192-GET

Historic Arms, LLC

1033

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91

Case 1:09-cv-oo:fif2'.G~-'riSocument 43-11 File1fio?2Hto'9 ~age 7 of B

24. Admit that if the HA54RCCS is not a PK-type machinegun, that it is an


entirely new machinegun that is designed to shoot, or can be readily restored to
shoot, automatically more than one shot, without manual reloading, by single
function of the trigger.

Response: Denied. The HA54RCCS lacks the characteristics described in the


request. For a more thorough response, see the response to Request for
Admission No. 11 above.

I declare under penalty of perjury that the foregoing substantive responses to


the Plaintiff's first requests for admission are true and correct.
Dated May 29, 2009

Objections raised by:

onroe
omeyatLaw
640 Coleman Road
Roswell, GA 30075
678-362-7650

john.monroe 1Cf.ilearthlink.net

1:09-CV-OO 192-GET

Historic Arms, LLC

1034

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Case 1:09-cv-00192-GET Document 43-11 Filed 10/28/09 Page 8 of 8

H.M. Whitesides, Jr.


N.C. Bar 13151
228 East Boulevard, Suite 200
Charlotte, North Carolina 28203
Telephone: (704) 376-6455
Facsimile: (704) 332-5010
hmwhitesides@whitesideslaw.com

ATTORNEYS FOR CLAIMANT

1:09-CV-00192-GET

Historic Arms, LLC

1035

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RIF

2ooa:os-1s os:2s

>>'

3042so1?01

P1

Case 1 :09-cv-o~i.:~ET poc~ent 43-li fiile~0/28/0'9 Page 1of4


n1~lor1e "l1rm$ ~.w.lJ.


706-675-0287 Home
706-675-0818 Shop

June 16, 2008

Mr. John R. Spencer


Chie~ Firearms Technology Branch
244 Needy Rd.
Martinsburg. WV 25405
Dear Mr. Spencer,
I received the Firearms Technology Branch's (FTB) guidance document (903050:MMK
3311/2008-472] referring to the latest submission by my company, Historic Arms, I.LC, for a
proposed product, a firearm of original design. This firearm has been designed as a
short-barreled rifle, because its barrel is less than 16 inches in length, and thus falls under
purview of the National Firearms Act (NFA}, and must be registered in the Nationa! Firearms
Registration and Transfer Record (NFRTR).
J am concerned about the apparent Jack of a written standard used to exami,ne and tesl our
submitted ilrearm. It appears that our submitted firearm was initially tested according to one set
of criteria, and that FTB detennined and verified that it is a firearm because it fired a projectile.
{see page 6) .
Since it fires a projectile~ has a barrel less than 16 inches in length, and according ta FTB (see
page 7} is intended to use the shoulder stock and pistol grip of MAC-type registered machinegun
in which it is installed, it is a short-barreled rifle according to ATF regulations and United States
Code. The submitted firearm was registered in the NFRTR by my company as a shortbarrele~
rifle via an ATF Form 2 priqr to submission to FTB.
'
.

bur con~em is that FTB was apparently dissatisfied with the results of the nest live fire test.
because FTB changed the testing criteria and live fire tested the submitted firearm again. The
new criteria for this second live tire test [see page 7, second paragraph} cannot be found in any of
our company's engineering books or manual~ and does not appear to be a valid scientific testing
procedure\ for the following reasons:
Using a foreign object to cause a firearm to fire fully automatic has historically been viewed
by ATF to be a "conversion device," under the reasoning that the foreign object converts the
firearm to a machinegun. One example of the use of such a foreign object is the use of a
shoestring. memorialized by ATFIFTB in three different Letter Rulings.
There is no valid SJJd reliable evidence that the new criteria FTB ~ be~n universally applied
to all MAC-type appers. In fact. several MAC-type uppers incorporate an ammunition feed

1036

RIF

2000.06-16 08:27

case 1:09-cv-00192-GET ocreument 4JS412QllQJed 10/28/99.

Page

2 of 4

P 214

device on the uupper", as does the fireann submitted by Historic Anns. LLC. If the criteria
FTB applied to the testing of our latest submission was applied to testing the many caliber
conversion uppers that are sold at retail with no restrictions, such as the .22 long rifle MAC
upper made by 11Flemming," (I) all of them would fire in fully automatic mode until the
ammunition supply was exhausted, (2) there would be no way for the shooter to stop firing.
Such fully automatic firing under these conditions -- tenned "sputter fire" because it is
uncontrolled firing -- is dangerous.
On page 4, a sample MAC-I 0 upper is shown. ATF does not consider this sample MAC-10
upper to be a firearm; consequently, no Form 4473 or NICS check during over the counter
sales is required; and there is no requirement for this MAC-10 upper to be serial numbered,
lfFfB tested this sample MAC-10 upper using the same criteria FTB used to test the firearm
submitted by Historic Arms, LLC, the sample MAC- t 0 upper would fire a projectile.
According to ATF regulations and United States Code, the sample MAC-10 upper is,
therefore, a fireann. Since ATF does not consider a MAC-10 upper to be a firearm, the
materials that FTB added during the second test of the ftreann submitted by Historic Arms,
LLC (aluminum plate, chain and tensioning bolts) must be a fireann, fireann receiver, or a
device intended to convert a fireann to a machinegun.
Also, importantly, if FTB applied the the first test it applied to the firearm submitted by
Historic Anns, LLC to the sample MAC-10 upper pictured in FrB's guidance, FTB would
classify the MAC-I 0 upper as a firearm because it fires a projectile. In fact, as noted~ ATF
does not regard the sample MAC-10 upper as a fireann at this time, which contradicts FTB's
current classification of the fireann submitted by Historic Anns, LLC in that regard.
The materials FTB added converted the firearm submitted by Historic Arms, LLC into a
machinegun; therefore. the materials constitute a machinegun receiver, a machincgun. or a
conversion device.
FTB's manipulation oftest criteria in order to achieve a specific result is clear and reliab1e
proof of"Outcome Based Testing! Talren at face value, it appears that the purpose of the
second test was to produce the outcome of finding a way to convert the Historic Arms, LLC
submitted firearm into a machinegun.
Since FTB has not applied the first or second test criteria to other MAC-10 uppers, and doing
so would result in a FTB determining that aU other MAC~10 uppers are machine guns or at
least fireanns, it appears that FTB has singled out the firearm submitted by Historic Amis,
LLC to preclude its manufacture and sale. (Please refer to the enclosed table.]
In summary, the second test FIB used was not valid. The reasons are that the second test1s

criteria and application ( 1) has not been consistent or uniformly applied to all MAC-I 0 uppers,
(2) apparently singles out the firearm submitted by Historic Anns, LLC to preclude its
manufacture and sale, and (3) ignores the fact that applying the second test to other MAC- t0
uppers would convert them into machineguns, as was the case with the fireann submitted by
Historic Arms, LLC. Also, importantly, if the test FI'B applied to the firearm submitted by

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2ooa-OS-16 08:29 Case 1:09-cv-00192-GET DQWment ~01 ffiled 10/28/09r Page 3 of 4

P 314

Historic Arms. LLC was applied to the sample MAC-10 upper pictured in FTB's guidance, the
MAC IO upper would be classified as a firearm because it fires a projectile. In fac~ as not~
ATF does not regard the sample MAC-I0 upper as a fireaon at this time.

It is difficult to understand how FTB would single out a fireann that is not a machine gun,
convert it into a machinegun and thus preclude its manufacture and sale. while ignoring the fact
that FTB could convert millions ofMAC-10 uppers th.at ATF currently does not define as
firearms, into firearms or machineguns.
I believe a human error occurred; that we are all human and make errors; and that this error can
be addressed with a correction Jetter from FTB; and the retum of my submitted short barrel rifle.
If this is not the case please notify me immediately

Respectfully,

Len Savage

1038

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P 4/4

DEVICES FOR MACTYPE REGISTERED MACHINEGUNS


THAT FIRE FROM AN OPEN BOLT CONFIGURATION

Name of
firearm or
device,

Classification
under the GCA

Results of FfB Results of FfB


Test#l
Test#2
rducttape,metal (chain,metal
plate,plastic
plate,tension

Not a firearm

tiesI
Firearm

boltsI
Fireann

Not a firearm
Not a firearm

Machinegun
Machinegwi

Me.chine1ZU11
Mechinegun

Not a fireann

Notafiream

Machinegun

Macbjnegun

Not a firearm

Not a fireann

Machinegun

Machinegun

Fireann**

Firearm:
Short Barreled
Rifle

Firearm

Machinegun

Sample MAC-10 Not a firearm


upper shown
Calico uooer"
Notafuearm
Flemming type
Not a fireann
.22 upper

Anthony Smith

Classlfteation
under the NFA

Sowni uoner*
Stoney Creek

Sowni upper
54RCCU

7.62xS4R
Caliber
Conversion Unit

--

All of the these have been classified by ATF/FTB to be NON-firearms.


Historic Arms LLC intentions are to keep "prohibited persons" from possessing a S4R Caliber
Conversion Device to address a stated ATF concern. ATF considers "uppers" for a MAC-Type
firearm to not be a firearm or the frame or receiver of a fireann. A convicted felon could in
theory own [or in Mr. Flemming's case] manufacture these "uppers,. openly for distribution to
general public.

1039

RIF

'
OMB No, 1140.0012 (0713112007)

U.S. Department or Justice

Bureau of Alcohol, Tobacco, Fircanns and Explosives

Notice of Firearms Manufactured or Imported

The undersigned hereby serves notice or the tn.aaractare, reacth'9tion, or importation of firearms as required by 5841 of the National Firearms Act, Title 16, U.S.C. Chapter 53.

I. Type ofNotlcca. Fin:anns on this Notice are (check one): Manufactured

Rcactiviatcd

Imported (complete b If cJ

I3.

2. Name and Address (including trade name, if any)

LENNIS F. SAVAGE m
mSTORIC ARMS LLC
1486 CHERRY RD.
FRANKLIN, GA 30217

tle.

lb. Permit Nwnbcr

Expiration Date

Sl>

14. Employer Identification Number and Class

Federal Firearms License Number

atO

I 16-1633863

158149 07 8G 01270

UI
CD

5. Number of Fireanns Covered by this Notice

-;:

16. Phone Number

0
0

7~75--0818

tO

l\J
I

7. Date of Manufacture, ReactMzation or Release from Customs

Sole Proprietor

Partnership

8. Description ofFircann(s)
Type ofFircarm
(See /nstn1c1/on I c)
a
SBR

Corporation

G)

21-APRIL-08

Additional Description
(Ste Instruction Je)
b

Caliber Gauge
or Size

Model
d

c
7.62X54R

7.62X54R CALIBER CONVERSION SYSTEM

54RCCS

BancI
Length
e
15.75"

Overall
Length

Serial Number
(See /rutrvction Jd)

27"-38"

0
0

c:

CD
::J

.....

VJ

w
~
w
I

]}
CD

a.
'

Q
l\J
co

tO

UNDER PENALTIES OF PERJURY, I DECLARE that I have enmined this notice offirearms manufactured, reactivated
or imported and, to the best or my knowledge and belief, it is true, correct and complet~

;;z:-<M:m~?T-~i~
...

A TF Use Restrictions (Ifany)


Imported Under 26 U.S.C. 5844 For
Use (A) By o Government Agency, (2)
For Scientific or Research Purposes. or
(3) As a Model or Sales Sample.
D

(Note: machineguns are not subjecr to


1/iese restrictions)

10. Name and Title of Authorized Official

11. Filing Date

Lennis F. Savage Ill, President

21-APRIL-08

Machim:gun Manufactured or
Imported After May 19. 1986
(18 u.s.c. 912(0))

..."'

EXHIBIT

19

:i

0
ATl' EForm
RIF2 (5320 2J
RC\-lscd Jol):.;?DIM

"'O
Q)

CD
~

i c~:l1'~ll::t ~
I 'rht./09 -X6

Receipt u ate

1040
>

NFA Control Number

Case 1:09-cv-00192-GET Document 43-14 Filed 10/28/09 Page 1 of 4

27 CFR 179.11: MEANING OF


TERMS

The KG-9 pistol Is a machlnegun as


defined In the Natlonal Firearms
Act.
ATF Rul. 82-2
The Bureau of Alcohol, Tobacco
and Firearms has examined a firearm
Identified as the KG-9 pistol. The KG9 is a 9 millimeter caliber, semlautomatlc
firearm which Is blowback operated
and which fires from the open
bolt position with the boll Incorporating
a fixed firing pin. In addition, a
component part of the weapon Is a
disconnecter whlch prevents more
lhan one shot being fired with a single
function of the trigger.
The dlsconneclor Is designed in the
KG-9 pistol in such a way that a simple
modification to It, such as cutting,
filing, or grinding, allows lhe pistol to
operate automatically. Thus, this simple
modification to the disconnector
together with lhe configuralion of the
above design features (blowback
operation, firing from the open bolt
position, and fixed firing pin) in the
KG-9 permits the firearm to shoot
automatically more than one shot,
without manual reloading, by a single
function of the trigger. The above
combination or design features as
employed in the KG-9 is normally not
found In the typical sporting firearm.
The National Firearms Act, 26
U.S.C. 5845(b), defines a machlnegun
to Include any weapon which
shoots, is designed to shoot, or can
be readily restored to shoot, automatically
more than one shot, without
manual reloading, by a single function
of the trigger.
The "shoots automatically" definition
covers weapons that will function
automatically. The "readily restorable"
definition defines weapons which
previously could shoot automatically
but will not In their present condition.
The "designed" definition includes
those weapons which have not previously
functioned as machlneguns but
possess design features which facilitate
full automatic fire by simple modification
or elimination of existing
component parts.
Held: The KG-9 pistol is designed
to shoot automatically more than one
shot, without function of lhe trigger.
Consequently, the KG-9 pistol ls a
machlnegun as defined in section

1041

RIF

Case 1:09-cv-00192-GET Document 43-14 Filed 10/28/09 Page 2 of 4

5845{b) of the Act.


With respect to the machinegun
classification of the KG-9 pistol under
the National Firearms Act, pursuant to
26 U.S.C. 7805{b), this ruling will
not be applied to KG-9 pistols manufactured
before January 19, 1982.
Accordingly, KG-9 pistols manufactured
on or after January 19, 1982,
will be subject to all the provisions of
the National Firearms Act and 27
CFR Part 179.
[ATFB 1982-118)
27 CFR 179.11: MEANING OF
TERMS

The SM10 and SM11A1 pistols and


SAC carbines are machlneguns as
defined In the National Firearms
Act.
ATF Rul. 82-8
The Bureau of Alcohol, Tobacco
and Firearms has reexamined firearms
identified as SM 1O pistols,
SM11A1 pistols, and SAC carbines.
The SM 10 is a 9 millimeter or .45ACP
caliber, semiautomatic firearm; the
SM11A1 Is a .3BOACP caliber, semiautomatic
firearm; and the SAC carbine
is a 9 millimeter or .45ACP
caliber, semiautomatic firearm. The
weapons are blowback operated, fire
from the open bolt position with the
bolt Incorporating a fixed firing pin,
and the barrels of the pistols are
threaded to accept a silencer. In addition,
component parts of the weapons
are a disconnecter and a trip
which prevent more than one shot
being fired with a single function of
the trigger.
The disconnector and trip are designed
in the SM10 and SM11A1
pistols and in the SAC carbine (firearms)
in such a way that a simple
modification to them, such as cutting,
filing, or grinding, allows the firearms
to operate automatically. Thus, this
simple modification to the disconneclor
or trip, together with the configuration
of the above deslgn features
(blowback operating, firing from the
open bolt position, and fixed firing pin)
In the SM10 and SM11A1 pistols and
In the SAC carbine, permits the firearms
to shoot automatically, more
than one shot, without manual reloading,
by a single function of the trigger.
The above combination of design
features as employed in the SM10
and SM 11A 1 pistols and the SAC
carbine are normally not found In

1042

RIF

Case 1:09-cv-00192-GET Document 43-14 Filed 10/28/09 Page 3 of 4

typical sporting firearms.


The National Firearms Act, 26
U.S.C. 5845(b), defines a machinegun
to include any weapon which
shoots, Is designed to shoot, or can
be readily restored to shoot, automalically
more than one shot, without
manual reloading, by a single funcllon
of the trigger.
The "shoots automatically" definition
covers weapons that will function
automatically. The "readily restorabte"
definition defines weapons
which previously could shoal automatically
but will not in their presenl
condition. The "designed" definition
Includes those weapons which have
not previously functioned as machlneguns
but possess design features
which facilitate full automatic fire
by a simple modification or eliminatlon
of existing component parts.
Held: The SM 10 and SM 11A 1
pistols and the SAC carbine are designed
to shoot automallcally more
than one shot, without manual reloading,
by a single function of the trigger.
Consequently, the SM10 and
SM 11A1 pistols and SAC carbines
are machineguns as defined In Section
5845(b) of the Act.
With respecl to the machinegun
classification of the SM10 and
SM11A1 pistols and SAC carbines,
under the National Firearms Act, pursuant
to 26 U.S.C. 7805(b), this ruling
will not be applied to SM10 and
SM11A1 pistols and SAC carbines
manufactured or assembled before
June 21, 1982. Accordingly, SM10
and SM 11A1 pistols and SAC carbines,
manufactured or assembled on
or after June 21, 1982, will be subject
to all the provisions of the National
Firearms Act and 27 CFR Part 179.
[ATFB 1982-2 49)
27 CFR 179.11: MEANING OF
TERMS
The YAC STEN MK II carbine Is a
machlnegun as defined In the National
Firearms Act.
ATF Rul. 83-5
The Bureau of Alcohol, Tobacco
and Firearms has examined a firearm
Identified as the YAC STEN MK II
carbine. The YAC STEN MK II carbine
Is a 9 millimeter caliber firearm
which has identical design characteristics
to the original selective fire
STEN submachinegun designed by
Reginald Vernon Shepherd and Harold

1043

RIF

Case 1:09-cv-00192-GET Document 43-14 Filed 10/28/09 Page 4 of 4

John Turpin. The weapon Is


blowback operated and fires from the
open bolt position with the bolt incorporating
a fixed firing pin. In addition,
a component part of the weapon Is a
trip lever (dlsconnector) which has
been modified to prevent more than
one shot being fired with a single
function of the trigger.
The trip lever (dlsconnector) Is
designed In such a way that a simple
modification to it, such as bending,
breaking or cutting, allows the
weapon lo operate automatically.
Thus, this simple modification to the
trip lever (disconnector), together with
STEN submachlnegun design features
and components In the YAC
STEN MK II carbine, permits the firearm
to shoot automatically, more than
one shot, without manual reloading by
a single function of the trigger. The
above combination of machinegun
design features as employed In the
YAC STEN MK II carbine are not
normally found In the typical sporting
firearm.
The National Firearms Act, 26
U.S.C. 5845(b), defines a machlnegun
to Include any weapon which
shoots, is designed to shoot, or can
be readily restored to shoot, automatically
more than one shot, without
manual reloading, by a single function
of the trigger.
The "shoots automatically" definition
covers weapons that will function
automatically. The "readily reslorable"
definition defines weapons
which previously could shoot automatically
but wlll not In their present
condition. The "designed" definition
includes weapons which have not
previously functioned as machlneguns
but possess specific machlnegun
design features which facilitate
automatic fire by simple alteration or
elimination of existing component
parts.
Held: The YAC STEN MK II carbine
is designed to shoot automatically
more than one shot, without
manual reloading, by a single function
of lhe trigger. Consequently, the
STEN MK II semiautomatic carbine is
a machlnegun as defined In Section
5845(b) of the Act.
[ATFB 1983-3 35]

1044

RIF

Case 1:09-cv-00192-GET Document 57

Filed 08/20/1 O Page 1 of 23

IN THE UNITED STATES DISTRICT COURT


FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

FILED IN Cl.fRKs OFFI


u.s.nc
"'. umnta

AUG 2-0 1010


UNITED STATES OF AMERICA,

II

Plaintiff,
v.

ONE HISTORIC ARMS MODEL 54RCCS


"7.62X54R CALIBER CONVERSION
SYSTEM" MA.CHINEGUN, SERIAL NO.
Vl,

Defendant .

CIVIL ACTION

NO. 1:09-cv-0192-GET

j
I

HISTORIC ARMS, LLC,

!
:
:
l

Claimant.

Ii
ORD BR

The above-styled matter is presently before the court on:


1)

Plaintiff's motion for summary judgment [docket no . 43];


and

2)

Claimant Historic Arms, LLC' s motion for summary judgment


[docket no. 38].

This is a

forfeiture

action filed

by the United States

("plaintiff" or the "government") on January 23, 2009, pursuant to


26

u.s.c.

5872, to forfeit and condemn one Historic Arms Model

54RCCS "7. 62x54R Caliber Conversion System" Machinegun,

Serial

Number Vl (the "defendant") , as a firearm involved in a violation


of 26

u.s.c.

5841 and 5861(d).

1045

The complaint alleges that on

RIF

Case 1:09-cv-00192-GET Document 57

Filed 08/20/1 O Page 2 of 23

April 21, 2008, Mr. Lennis Savage, president of Historic Arms, LLC
(''claimant"), a .f ederally-licensed firearms manufacturer, provided
notice that claimant had manufactured the defendant,
barreled rifle."

''short-

The defendant was subsequently classified by the

Firearms

Technology Branch

Tobacco,

Firearms,

( "FTB")

and Explosives

of

the

Bureau of Alcohol,

( "ATF" or the ''Bureau")

as a

"machinegun," but claimant disagreed with the classification and


refused

to

file

an

amended

ATF

Form

Notice

of

Firearms

Manufactured or Imported ("Form 2") reflecting that classification.


The

government

forfeiture

on

the

machinegun

which

asserts
grounds

is

not

that
that

the
it

defendant

is

properly

unlawful

registered

Firearms Registration and Transfer Record

in

is

subject

to

possess

the

( "NFRTR") .

to
a

National
Claimant

contends that the government has failed to satisfy the burden


required to justify the forfeiture because it has not shown that
the defendant contains a
weapon

that

automatically,

"shoots

machinegun receiver,

automatically,"

or that

it

can be

is

or that it is a

"designed

"readily restored"

to
to

shoot''
shoot

automatically under the National Firearms Act's definition of a


machinegun.
Claimant filed an answer to the complaint for forfeiture on
February 10, 2009.

On the same date,

claimant filed a claim of

legal interest requesting that the defendant property be returned


because claimant designed, manufactured, registered, and voluntarily

Page2

1046

RIF

Case 1:09-cv-00192-GET Document 57

Filed 08/20/1 O. Page 3 of 23

submitted the property to the ATF for


requested

by

FTB

Chief

John

Spencer.

technical
In

evaluation as

claimant' s

view,

disagreement over the defendant's proper classification does not


create a violation of federal criminal law requiring forfeiture of
the property.

Discovery in the case was extended by consent of the

parties until October 8, 2009.


the government each filed a

On October 28, 2009, claimant and


motion for summary judgment.

The

motions have been fully briefed and are now ripe for review.
Applicable Law

Under 26 U.S.C.

5872(a), property involved in a violation of

the National Firearms Act ( "NFA") , 26 U.S. C. Chapter 53, is subject


to seizure and forfeiture to the United States.
may

file

claim of

ownership

government for forfeiture.

of

However, a person

the property seized by the

19 U.S.C.

1608; Rule G(S), Fed. R.

Civ. P., Supplemental Rules for Admiralty or Maritime Claims and


Asset Forfeiture Actions.

Once a claim of ownership is filed, the

government must satisfy its initial burden by demonstrating that it


had probable cause to believe that the property was involved in a
violation of law.

Once the government establishes probable cause,

the burden shifts to the claimant to establish by a preponderance


of the evidence that

the item was improperly seized.

Summary

judgment ordering forfeiture is appropriate when the government


establishes probable cause, and the claimant fails to show that the
facts constituting probable cause did not exist.

United States

Page 3

1047

RIF

Case 1:09-cv-OO192-GET Document 57

Filed 08/20/10 Page 4 of 23

v. Two Parcels of Real Prop., 92 F.3d 1123, 1128 (11th Cir. 1996).

In other words, once the government meets its initial probable cause
showing,

the

claimant

must

set

forth

facts

showing

that

the

government's classification of the defendant as a machinegun is not


entitled to deference in order to avoid -summary judgment.
There is inconsistent authority on the amount of deference
ATF firearm classifications merit.

Cf. Modern Muzzleloading, Inc.

v. Magaw, 18 F. Supp. 2d 29, 35-36 (D.D.C. 1998) (explicitly applying


Chevron deference to review of ATF classification of Knight Disc
Rifle as a firearm),
(10th

Cir.

involved

with York v. Higgins,

1985) ("Although

in

this

case

is

an
not

774 F.2d 417, 419-20

interpretive

rule

granted

'force

the

like
of

the

one

law'

of

legislative rules, it still requires deferential treatment by the


court.").

However, the courts have consistently recognized that

when such decisions are shown to be the product of substantial


agency expertise, experience and analysis, they are entitled to at
least the standard of Skidmore deference, under which the weight of
an agency's interpretation "depend[s] upon ... all those factors
which give it power to persuade, if lacking power to control."
Skidmore v. Swift

&

Co.,

323 U.S.

134

( 1944) .

See also United

States v. Mead Corp., 533 U.S. 218, 229 (2001) ("The fair measure of
deference to an agency administering its own statute has

been

understood to vary with circumstances, and courts have looked to the


degree

of

the

agency's

care,

its

consistency,

formality,

and

Pitge4

1048

RIF

Case 1:09-cv-00192-GET Document 57

relative expertness,
position").

Filed 08/20/10 Page 5of23

and to the persuasiveness of the agency's

Accordingly, ATF firearm classifications are usually

reviewed under an "arbitrary and capricious" or similar standard.


See Akins
2009)

y.

United

States,

312

App' x 197,

F.

200

(11th Cir.

(holding that ATF's decision reclassifying an apparatus as a

machinegun was not arbitrary and capricious).


Under 26 U.S.C.

5861(d) of the NFA, it is unlawful for any

person to possess a firearm that is not properly registered with the


federal government, punishable by a fine and/or up to 10 years in
prison, id.

machinegun,

5871.

The NFA includes within the term "firearm" a

5845(a)

(6),

and further defines a machinegun as

"any weapon which shoots, ... or can be readily restored to shoot,


automatically more than one shot, without manual reloading, by a
single function of the trigger," iQ.
States, 511 U.S. 600, 603

(1994).

5845(b).

Possession of an unregistered

machinegun also is prohibited under Section


Control Act of 1968 ("GCA"), 18 U.S.C.
1986.

Staples v. United

922 (o)

of the Gun

921-929, as amended in

United States y. Bailey, 123 F.3d 1381, 1385 n.3 (11th Cir.

1997) ("It

is a

federal crime for anyone,

including a licensed

firearms dealer, to possess a machinegun unless (1) the weapon is


being transferred by a

licensed dealer to a

state or federal

governmental agency, such as a police department, or (2) the weapon


was manufactured and lawfully possessed prior to May 19, 1986, the

PageS

1049

RIF

Case 1:09-cv-00192-GET Document 57 Filed 08/20/10. Page 6 of 23

effective date of the federal law banning possession of machineguns.

11

Under the NFA, each manufacturer must register in the NFRTR


central registry each firearm that it produces. 26 U.S.C.

5841 (b).

To register the firearm, the manufacturer is required to complete


and file an accurate Form 2 notice, executed under the penalties of
perjury, no later than the close of business the next business day
after the

firearm's

manufacture.

The

notice must

accurately

identify the firearm by date of manufacture, type, model, length of


barrel, overall length, caliber, gauge or size, serial number, the
name and address of the manufacturer, and the place where the
manufactured firearm will be kept.

479.103.

Id.

584l(a);

As mentioned above, any firearm involved in a violation

of the NFA is subject to seizure and forfeiture.

5872(a}.

27 C.F.R.

26

u.s.c.

Accordingly, the dispositive issue in this matter is

whether the defendant property is an unregistered "machinegun" as


defined by the NFA.
Standard

Courts should grant summary judgment when "there is no genuine


issue as to any material fact ... and the moving party is entitled
to judgment as a matter of law."

Fed. R. Civ. P. 56(c).

The moving

party "always bears the initial responsibility of informing the


district court of the basis for its motion, and identifying those
portions of 'the pleadings, depositions, answers to interrogatories,
and admissions on file, together with affidavits, if any' which it

Page6

1050

RIF

Case 1:09-cv-00192-GET Document 57

Filed 08/20/1 O Page 7 of 23

believes demonstrate the absence of a genuine issue of material


fact . "
(1986) .

Celotex Corp. v . Catrett, 477 U.S. 317, 324, 106

s. Ct. 2548

That burden is "discharged by 'showing'-that is, pointing

out to the district court-that there is an absence of evidence to


support the nonmoving party's case."

Id. at 325;

s.1..Q

States v. Four Parcels of Real Prop., 941 F.2d 1428, 1437

United

(11~

Cir.

1991) .
Once the movant has met this burden, the opposing party must
then present evidence establishing that there is a genuine issue of
material fact.

Celotex, 477 U.S. at 325.

The nonmoving party must

go beyond the pleadings and submit evidence such as affidavits,


depositions and admissions that are sufficient to demonstrate that
if allowed to proceed to trial, a jury might return a verdict in his
favor.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257, 106

S. Ct. 2505 (1986).

If he does so, there is a genuine issue of fact

that requires a trial.

In making a determination of whether there

is a material issue of fact, the evidence of the non-rnovant is to


be believed and all justifiable inferences are to be drawn in his
favor.

~at

(11th Cir.

255; Rollins

1987).

y,

However,

TechSouth, Inc., 633 F.2d 1525, 1529


an issue is not genuine if it is

unsupported by evidence or if it is created by evidence that is


"merely colorable'' or is "not significantly probative."
477 U. S. at 249-50.

Anderson,

Similarly, a fact is not material unless it is

identified by the controlling substantive law as an essential

Page7

1051

RIF

Case 1:09-cv~00192-GET Document 57

Filed 08/20/10 Page 8 of 23

element of the nonmoving party's case.

Id:_ at 248.

Thus, to create

a genuine issue of material fact for trial, the party opposing the
summary judgment must come forward with specific evidence of every
element essential to his case with respect to which (1) he has the
burden of proof, and (2) the summary judgment movant has made a
plausible showing of the absence of evidence of the necessary
element.

Celotex, 477 U.S. at 323.


Facts

In light of

the foregoing

standard,

the court

finds

the

following facts for the purpose of resolving the parties' motions


for summary judgment only.

As a Special (Occupational) Taxpayer

("SOT") and Federal Firearms Licensee ( "FFL") , claimant is permitted


under federal law to manufacture and sell NFA firearms.

Because it

is unlawful for persons to own, transfer or possess machineguns


manufactured after May 19, 1986, it is not uncommon for owners of
"pre-ban" machineguns to look for ways to equip the guns with
caliber conversion devices so that the machineguns may be used to
shoot a variety of ammunition calibers.

For example, with the use

of a caliber conversion device, a Military Armament Corporation


("MAC") type machinegun (designed originally to use .380 ACP, 9 mm
and .45 ACP pistol caliber ammunition) can be converted to shoot
rifle caliber ammunition.
Claimant is an experienced designer and manufacturer of firearm
systems and components.

In order to avoid regulatory issues with


Page8

1052

RIF

Case 1:09-cv-00192-GET Document 57

Filed 08/20/10 Page 9 of 23

its designs and inventions, claimant often submits a prototype of


the

item to

the ATF's

FTB

for

classification

in advance

of

manufacture.
On or about April 21, 2008, claimant completed the design and
fabrication of defendant to act as a caliber conversion device for
a MAC-type machinegun so that when defendant is installed on a MAC
machinegun,
7. 62x54R

the MAC can fire automatically multiple rounds of

caliber ammunition. Claimant completed an ATF Form 2,

providing notice that. it had manufactured one Historic Arms Model


54RCCS 7. 62x54R Caliber Conversion System, Serial Number Vl.

On the

form, under the heading, "Type of Firearm," claimant entered "SBR,"


an abbreviation for "short-barreled rifle."

Based on that form,

defendant was registered in the NFRTR as a short-barreled rifle.


Also on April 21, 2008, claimant submitted the defendant to the
ATF's FTB in Martinsburg, West Virginia for a technical evaluation.
In claimant's letter accompanying the defendant, claimant asked the
FTB to verify (1) that the defendant is designed to be fired from
che shoulder;

(2)

that it has a barrel length of less than 16

inches; and (3) that it is designed for exclusive use in MAC-type


machineguns as a caliber conversion system.
Firearms Enforcement Officer Max Kingery ("FEO Kingery") was
assigned to evaluate and classify the defendant.

In FEO Kingery's

four-plus years with the ATF, he has classified over 1, 000 firearms.
He also has instructed local, state and 'federal law enforcement

Page9

1053

RIF

Case 1:09-cv-OO192-GET Document 57

Filed 08/20/1 O Page 1Oof 23

officers on the proper identification and classification of firearms


under both the GCA and the NFA.

FEO Kingery's examination noted

that the defendant was comprised of


{1)

modified

PKM- type

receiver

the following components:

( "PKM"

Kalashnikova, or "Kalashnikov's Machinegun,


mated with a MAC-type upper;
and feed-tray assembly;
(4)

15

(3)

long;

(6)

11

for

Pulemyot

Modernized version),

an unmodified PKM-type top cover

(2)

a newly- manufactured plastic forearm;

a shortened PKM- type gas system;


3/4 11

stands

(5)

a barrel approximately

modified PKM- type machinegun bolt carrier

assembly; and (7) a PKM- type bolt assembly.

A receiver is "(t)hat

part of a firearm which provides housing for the hammer, bolt or


breechblock and firing mechanism, and which is usually threaded at
its forward position to receive the barrel."

27 C.F.R.

479.11.

It is also that portion of the weapon bearing the firearm's serial


number.

l.Q_,_ 479.102.

FEO Kingery observed that the defendant was belt fed, and that
it utilized open bolt firing and a fixed firing pin.

The defendant,

however, as submitted, was not in firing condition, as it lacked a


trigger group

and rear trunnion/stock mounting block.

After

examining the defendant, FEO Kingery concluded that in addition to


containing a frame or receiver of a machinegun, the defendant could
shoot automatically more than one shot, without manual reloading,
by a single function of the trigger.

Page IO

1054

RIF

Case 1:09-cv-00192-GET Document 57

Filed 08/20/10 Page 11 of 23

To verify that the defendant shot automatically, FEO Kingery


tested the defendant by attaching a one-inch by one-and-a-quarterinch aluminum plate to the rear of the defendant utilizing duct tape
and plastic zip ties (due to the absence of a rear trunnion block
to hold the recoil spring and guide rod in place) .

Kingery then

loaded the defendant with three rounds of commercially available


7.62x54R Wolf brand ammunition and retracted and released the bolt
operating handle to initiate the firing sequence.

However, the

force of the recoil broke the zip ties and duct tape, and the
defendant failed to chamber and fire the second and third rounds.
Next, FEO Kingery reattached the aluminum plate to the rear of
the defendant utilizing a short piece of chain and a tensioning
bolt.

The attachment took approximately two minutes and required

no special tools or equipment. A belt of three rounds of ammunition


was loaded into the defendant; the operating handle was pulled back
and released.

The defendant fired all three rounds automatically,

without manual reloading.


with the same result.

This test was repeated and videotaped,


Based on FEO Kingery' s

evaluation and

testing, the ATF concluded that the defendant met the definition of
a machinegun, under 26

u.s.c.

584S(b}, because it contained the

frame or receiver of a machinegun and shot automatically more than


one shot, by a single function of the trigger.
On June 10, 2008, the ATF sent a letter to claimant informing
its president that the defendant had been classified by the ATF as

Page 11

1055

RIF

Case 1:09-cv-00192-GET Document 57

Filed 08/20/10 Page 12 of 23

a machinegun, and therefore the defendant needed to be registered


with ATF's National Firearms Act Branch by the close of business of
the next business day following claimant's receipt of the letter.
The eight - page letter was prepared by FEO Kingery, reviewed and
approved by FTB Assistant Chief Richard Vasquez and FTB's counsel,
and signed by FTB Chief John Spencer.

In a letter dated June 16,

2008, claimant objected to the ATF's classification and asked that


the classification be corrected and that the "short-barrel rifle"
f irearrn be returned.

In July 2008, the ATF denied claimant's request to reconsider


its decision to classify defendant as a machinegun, and informed
claimant's president that he must amend his Form 2 and register the
defendant as a machinegun.

Claimant also was notified that failure

to provide proper registration documents would result in ATF seizing


and

instituting

forfeiture

proceedings

against

the

defendant.

Claimant's president refused to amend the Form 2, and in August


2008, the defendant was forwarded to ATF's Atlanta Field Division
where it was seized for forfeiture.
Discussion

Congress delegated authority to the ATF to interpret and


enforce the NFA.
defines a
{1)

27 C.F.R.

"rnachinegun"

479.

broadly,

"any weapon which shoots,

Section 5845(b) of the NFA

including in its description:

is designed to shoot, or can be

readily restored to shoot, automatically more than one shot, without

Page 12

1056

RIF

Case 1:09-cv-00192-GET Document 57

Filed 08/20/10 Page 13 of 23

manual reloading, by a single function of the triggern;

(2) "the

frame or receiver of any such weapon"; (3) "any combination of parts


designed and
rnachinegun";

in converting a

intended for use


and

(4)

"any combination of

weapon into a

parts

from which

machinegun can be assembled if such parts are in the possession or


under the control of a person."
92l(a)

26

u.s.c.

5845(b); 18 U.S.C.

(23); S.W. Daniel. Inc. y. United States, 831 F.2d 253, 254

(llth Cir. 1987).


Courts analyzing the statute have observed that in addition to
the three ordinary and obvious definitions of rnachinegun contained
in the first sentence of section 584S(b), the statute "creates a
class of objects statutorily defined as a machine gun but which
might not qualify as a machine gun as the term is commonly and
typically understood"; thus, certain parts or combinations of parts
which can enable the automatic operation of weapons are themselves
considered machineguns under the statute.

See, e.g., United States

v.

1359,

Aguilar-Espinosa,

57

F.

Supp.

2d

1363

(M.D.

Fla.

1999) {concluding that a sear, a small piece of machined metal no


larger than one's finger, is a statutory machine gun); F.J. Vollmer
Co., Inc. v. Higgins, 23 F.3d 448, 450 (D.C. Cir. 1994) {recognizing
that both a modified receiver and a machinegun conversion kit met
the statute's definition of rnachinegun, whether integrated into an
operable weapon or not); United States v. Campbell, 427 F.2d 892,
893

(5th Cir. 1970) (holding that conversion kits,

assembled on

Page 13

1057

RIF

Case 1:09-cv-00192-GET Document 57

trigger housings,

Filed 08/20/10 Page 14 of 23

designed and intended for use in converting a

standard M-1 carbine into a machinegun, constituted a "machinegunn


under

5845 {b)) .

A device or item is considered to be a machinegun

if it meets any element of the etatutory definition.


Espinosa,

57 F.

Supp.

2d at 1362-63

(concluding that

Aguilar"Congress

obviously intended to regulate possession of even an incipient


machine gun,

i.e.,

device the possession of which is either

tantamount to possessing a machine gun or the distinctive precursor


of the automatic operation of a weapon."}.
Longstanding ATF rulings
"designed"

includes

functioned

as

"those

machineguns

provide

weapons
but

that

which

possess

the
have

design

statute's
not

term

previously

features

which

facilitate full automatic fire by simple modification or elimination


of existing component parts."

See ATF Rulings 82-2, 82-8, 83-5;

S . W. Daniel. Inc., 831 F . 2d at 254-55 (same); United States v . M-K


Specialties Model M-14 Machinegun Serial Number 1447797, 424 F.
Supp . 2d 862, 866 (N.D . W. Va. 2006) (granting summary judgment in
favor of government in forfeiture action where modified receiver had
the

features

necessary to

facilitate automatic

fire by simple.

modification, and therefore was "designed" to shoot automatically) .


None of the cited cases or ATF rulings require possession of all the
parts necessary to construct a completed machinegun .
In the present case, the ATF initially found that the defendant
contains the frame or receiver of a machinegun and is a weapon that

Page 14

1058

RIF

Case 1:09-cv-00192-GET Document 57- Filed 08/20/1 O Page 15 of 23

shoots automatically more than one shot, without manual reloading,


by a single function of the trigger.

FEO Kingery testified that the

difference between a semiautomatic PK receiver and a machinegun PK


receiver is that the semiautomatic receiver has a machinegun bolt
blocking bar attached on its lower shelf and a widened left bolt
guide rail.

The purpose of those two design features is to prevent

the installation and functioning of a PK machinegun bolt carrier and


bolt,

which facilitate automatic

fire.

It

is undisputed that

claimant fabricated the defendant, in part, by removing the lower


shelf and machinegun bolt blocking bar on a semiautomatic WiseLite
Arms/Vltor PKl-'1-type receiver, and by widening the left guide slot
on a

PKM machinegun bolt

carrier.

As

the ATF

saw it,

these

modifications removed or altered the only physical design features


preventing automatic firing and differentiating a semiautomatic PK
receiver from a machinegun receiver.

According to the Bureau,

modified receiver that enables automatic firing is considered a


statutory machinegun.

~Vollmer,

23 F.3d at 449 (denying transfer

application for rifle with modified receiver and installed machine


gun conversion kit).
defendant's
required

to

Because the ATP' s examination determined that

receiver

no

longer

contained

prevent

the

installation

of

the

design

machinegun

features
parts

and

automatic fire, the ATF concluded that the defendant contained the
frame or receiver of a

machinegun,

and thus met the

receiver" prong of the statutory definition of machinegun..

"frame or
Evidence

Page 15

1059

RIF

Case 1:09-cv-00192-GET Document 57

Filed 08/20/10 Page 16 of 23

provided during .discovery subsequently led the ATF to conclude that


the defendant meets two additional prongs of section 5845 (b),
namely, that the defendant is "designed" to shoot automatically, and
can be "readily restored" to shoot automatically more than one shot,
without manual reloading, by a single function of the trigger.
Claimant now argues that because the defendant, by itself,
cannot shoot, the defendant is neither a firearm nor a weapon, and
therefore, the device need not be registered at all, much less as
a machinegun (despite the fact that claimant's president testified
in his deposition that defendant is a firearm and also swore, under
penalty of perjury,

on the ATF Form 2 that he filed that the

defendant is a short-barreled rifle type firearm required to be


registered under the NFA) .

Claimant further contends that the ATF' s

classification of defendant as a machinegun was arbitrary and


capricious in light of several prior classifications of other MAC
conversion devices as non-firearms.

Claimant additionally argues

that even if defendant is a weapon, it was not "designed" to shoot


automatically,

nor

can

it

be

"readily

restored"

to

shoot

automatically because defendant on its own does not shoot and "never
has been fired."
As discussed above, the government bears the burden to prove
(1) that the defendant property qualifies as a machinegun under the
NFA; and (2) that the property was possessed by claimant and was not
effectively registered in the NFRTR.

To satisfy the first element,

Page 16

1060

RIF

Case 1:09-cv-00192-GET Document 57

Filed 08/20/1 O Page 17 of 23

the government must prove that the defendant is classified as a


machinegun under the standards set forth in the NFA and that such
classification was the product of reasonable analysis and was not
arbitrary, capricious, or an abuse of discretion.
After careful review of the record, the parties' arguments and
submissions, and the pertinent statutes and regulations, the court
finds

that

the

government

has

met

its

burden.

The

ATF's

classification of the defendant as a machinegun, upon which the


probable cause for seizure was based, has not been shown to be
arbitrary, capricious, or an abuse of discretion.

The government

has presented evidence that the property was properly classified as


a machinegun under the NFA, including the testimony of FTB Chief
John Spencer, Assistant Chief Richard Vasquez, and FEO Kingery, who
drafted the initial classification letter based on his examination
and testing of the property.

The classification letter issued by

the ATF reasonably explained the evaluation process, the applicable


law,

and the bases for the Bureau's conclusions and ultimate

classification.

The eight-page letter also included photographs of

the inspection, evaluation and testing undertaken by FEO Kingery.


Although claimant objects to the classification, it does not dispute
the

ATF's

finding

that

defendant

can

be

converted

to

fire

automatically in a matter of minutes with the addition of a few


readily available parts, or that the defendant utilizes open bolt

Page 17

1061

RIF

c.;ase 1:09-cv-00192-GET Document 57

Filed 08/20/10 Page 18 of 23

firing and a fixed firing pin (design features that the ATF, since
1982, has ruled are design characteristics of machineguns).
Claimant instead argues that the ATF's decision was arbitrary
and capricious because it has not classified a number of other
caliber conversion devices as machineguns.

However,

there are

statements in the record outlining important distinctions between


those devices and the defendant .

For example, none of the other

devices included a frame or receiver that had been modified to


remove or alter features designed to prevent full automatic firing.
In any event, even if the other devices were similar in some or all
relevant respects to the defendant, the Eleventh Circuit has held
that the ATP has the power to "reconsider and rectify" earlier
classifications.

Akins, 312 F. App'x at 200 (concluding that ATF's

decision to reconsider earlier classification was not arbitrary and


capricious); see also Gun South. Inc. v. Brady, 877 F.2d 858, 862
(11th Cir. 1989) (concluding that an agency has the power to correct
earlier errors) .

The claimant has set forth no set of facts showing

that the ATF's classification of the defendant as a machinegun was


arbitrary and capricious.
Claimant's "never been fired" argument also fails.

During

discovery, claimant provided three video clips of the defendant (or


an early version of the defendant) installed on a MAC-10 machinegun
being fired automatically prior to its submission to the ATP.
Claimant's president also testified that before submitting the

Page 18

1062

RIF

L;ase 1 :u~-cv-uu1 ~Z-<.:H~ I

uocument bl

1-iled 08/20/1 o Page 19 of 23

defendant to the ATF, he tested the defendant by firing "several


cases of ammunition ... [a] case being a thousand rounds," including
multiple "200-round bursts or 250-round complete nonstop Mag or belt
dumps."

ATF Ruling 83-5 provides that a firearm can be "readily

restored" to shoot automatically if the firearm previously could


shoot automatically, but cannot shoot automatically in its present
condition.

A firearm satisfies the "readily restorable" test for

qualification as a machinegun if it can be made capable of automatic


operation through some form of restoration, including restoration
requiring a degree of skill and the use of tools and parts.
Aguilar-Espinosa, 57 F. Supp. 2d at 1362.
Here, FEO Kingery was able to convert the defendant to fire
automatically in less than two minutes, using readily available
materials and no special tools.

Claimant does not dispute that

defendant can be converted into a machinegun with a collection of


parts, but simply argues, without legal support, that "restored" and
"converted" are not synonymous.

Claimant's argument, however, is

contrary to the weight of persuasive authority .

See, e.g., United

States v. One TRW, Model Ml4, 7.62 Caliber

441 F.3d 416, 424

Rifl~,

(6th Cir. 2006) (" [T]he definition of 'restore' does not preclude an
object from being considered 'restored' without returning it to a
condition in which it previously existed."); id. at 421-22 n.8 ("We
have also held that a

firearm that can be converted to shoot

automatically within two minutes 'can be readily restored.'

United

Page 19

1063

RIF

L.ase 1 :u~-cv-uu1 ~L-l:jt: 1 uocument o t

States

v.

Woodlan,

527

F. 2d

t-nea

608,

uts1~u11 u

609

1-'age ~u ot ~:3

(6th

Cir.

[1976]) "} ;

Thompson/Center Arms Co. v. United States, 924 F.2d 1041, 1044 (Fed.
Cir. 1991) ("We can find no principled difference between 'restored',
as interpreted by the government,

and 'converted' ,

as commonly

understood"); M-K Specialties, 424 F. Supp. 2d at 866 (concluding


that defendant was a machinegun as it could be restored to shoot
automatically in so minutes with the addition of parts purchased off
the internet) .
Even if the defendant had never previously been fired, the ATF
did not abuse its discretion in classifying the defendant as a
machinegun.
functioned

Under the NFA,


as

machineguns,

weapons which have not previous! y


but

possess

design

features

which

facilitate full automatic fire by simple modification, meet the


statutory definition of machinegun.

s.w.

Daniel. Inc., 831 F.2d at

254 (upholding the use of a jury instruction defining a machinegun


as "those weapons which have not previously functioned as machine
guns but possess design features which facilitate full automatic
fire by simple modification or elimination of existing component
parts"); York, 774 F.2d at 419 (upholding ATF's classification of
YAC

Sten

MKII

as

machinegun

because

it

possessed

design

characteristics of a World War II submachinegun); !,Jnited States v.


One Harrington and Richardson Rifle. Model M-14, 7. 62 Caliber Serial
Number 85279, 378 F.3d 533, 534 (6th Cir. 2004) (affirming district
court holding that a rifle had features necessary to facilitate

Page20

1064

RIF

v1::1se 1:ut1-cv-uu 1t1L-\.:Jt:.1

uocumem 01

r-11ea Ul/Lunu

~age

L"I or L;:J

automatic fire by simple modification and, therefore, it satisfied


both the ''designed to shoot" and the "readily restorable" criteria
necessary to classify it as a machinegun under the NFA) .
Here, the ATF determined that the defendant incorporated design
features of a machinegun, including a modified PKM-type receiver,
a machinegun belt feed ammunition mechanism, a shortened PKM-type

machinegun barrel, open bolt firing and utilization of a fixed


firing pin.

FEO Kingery's evaluation and testimony establish that

the defendant had the features necessary to facilitate automatic

fire by a simple modification, thus meeting the statutory definition


of machinegun under 26 U.S.C.

Finally,

584S(b).

claimant contends that because it registered the

defendant as a short-barreled rifle in the NFRTR,

and has not

possessed the defendant since it was classified as a machinegun, no


statute
response,
require,

has

been violated

that

would

justify forfeiture.

In

the government argues that pertinent ATF regulations


at a minimum,

that to be effective, the Form 2 notice

description must be "accurate.''

See 27 C.F.R.

479.103.

Once the

ATF classified the defendant as a machinegun, the Bureau notified

claimant that its original Form 2 notice was not effective and that
claimant needed to amend the notice.

Claimant's president declined

to do so, stating that he could not swear, under penalty of perjury,


that the defendant is a machinegun because he does not believe that
it is.

Ironically,

claimant's president now concurs with the

Page 21

1065

RIF

vC:I::>~

1.u~-cv-uu 1~~-uc.1

uocumem o /

r-11ea uou.u11 u

I"" age L.L.

or L...1

government that the defendant is not a short-barreled rifle, as the


original registration reflects.

Accordingly, the court finds that

the ATF was well within its discretion in concluding that claimant's
original Form 2 notice was insufficient to properly register the
defendant.

See Akins v. United States, 82 Fed. Cl. 619, 623 (Fed.

Cl. 2008) (holding that ATF was acting pursuant to the police power
conferred on it by Congress when it reclassified device as a
"machinegun" and ordered inventor to register or surrender the
device) .
The government asserts that once defendant was classified .as
a machinegun, claimant's requests for reconsideration were denied,
and claimant refused to amend its Form 2 registration notice, the
unregistered machinegun could not be transferred or returned to
claimant, as it is unlawful for any person to receive or possess a
firearm made or transferred in violation of the NFA, or to receive
or possess a firearm which is not registered to him in the NFRTR.
26 U.S.C.

5861, 5872; see

also~

5812(a) (banning transfer of

firearms "if the transfer, receipt, or possession of the firearm


would place the transferee in violation of law").

Claimant again

objects and seeks the return of defendant, but has provided no legal
authority that would authorize the possession, transfer or return
of an unregistered machinegun.
For the reasons stated above, the court concludes that the
government has established probable cause that claimant manufactured

Page22

1066

RIF

VCl>)C 1.vv-vv-uv lvL-\.:JL-1

UUIJUlllClll i.J/

rm::u UO/UI IU

rcsy~ ,;) UI ,;)

and possessed a machinegun that was not effectively registered in


the NFRTR , and claimant has not carried its burden of showing that
the property was not related to the violation of federal law .
claimant has not
cause,

As

rebutted the government's showing of probable

the government is entitled to a

judgment of forfeiture.

Accordingly, the government's motion for summary judgment [docket


no .

43]

is GRANTED ;

and claimant's motion for summary judgment

[docket no . 38] is DENIED.


Summary

1)

Plaintiff's motion for summary judgment [docket no . 43]


is GRANTED; and

2)

Claimant Historic Arms, LLC' s motion for summary judgment


[docket no. 38] is DENIED.

3)

The court further ORDERS that


favor of plaintiff,
54RCCS

7 . 62x54R

judgment be entered in

and that one Historic Arms Model

Caliber Conversion System Machinegun,

Serial Number Vl, be FORFEITED to the United States of


America for disposition according to law.

so

ORDERED,

this

~~f/t day

of August, 2010.

G. ERNEST TIDWELL, JUDGE


UNITED STATES DISTRICT COURT

Page 23

1067

RIF

(b) (6)
From:
Sent:
To:
Subject:

(b) (6)
Thursday, April 01, 2010 9:01 AM
(b) (6)
RE: summaries of frames/receiver cases

Thanks, (b) (6) I checked with (b) (6) and for now, don't want any pending cases, but I will keep this just in case they
change mind.
From: (b) (6)
Sent: Thursday, April 01, 2010 9:00 AM
To: (b) (6)
Subject: RE: summaries of frames/receiver cases

United States v. One Historic Arms Model 54 RCCS "7.62x54R Caliber Conversion System"
Machinegun, Serial No. Vl, 1:09-CV-0192 (GANO}. Claimant, a licensed manufacturer,
manufactured and submitted what it described as a short barreled rifle to ATF for
classification. ATF classified the firearm as a machinegun as Claimant had removed or
defeated the two key features required on semiautomatic PK type receiver that prevent the
installation of machinegun parts and facilitate automatic firing. Claimant refused to amend its
NFA registration of the firearm reflecting its classification as a machinegun. Accordingly, ATF
seized the firearm and commenced this action . The case is currently pending as both sides
have filed motions for summary judgment.
From: (b) (6)
Sent: Wednesday, March 31, 2010 10: 19 AM
To: (b) (6)

(b) (6)
Subject: FW: summaries of frames/receiver cases
Anybody out there have something on this? Please respond ASAP. thanks.
From: (b) (6)

Sent: Tuesday, March 30, 2010 4:15 PM


To: All ACC Regions; (b) (6)
Cc: Ficaretta, Teresa
Subject: summaries of frames/receiver cases

All At the request of the Deputy Attorney General, I need to put together a compilation of short summaries - criminal,
forfeiture, administrative or otherwise {preferably criminal), of cases ATF brought involving frames or receivers only (or
at least the primary thrust of the case).
Could you please submit to me ASAP any such summaries that you may have?

1068

RIP

(b) (6) d- I know you had the lnterport rec:eiver case.

Thanks!
- (b) (6)
Associate Chief Counsel
(b) (6)
Office of Chief Counsel
Firearms, Explosives and Arson Division
Bureau of Alcohol, Tobacco, Firearms and Explosives
99 New York Ave., NE, Room 6E-363
Tel: (b) (6)

1069

RIP

1070

RIF

1071

RIF

Submitted bolt
carrier & bolt

Submitted bolt carrier

2 19
1072

RIF

Spring
buffer

2 19

Striker

1073

RIF

903050:(b) (6)
3311/2007-122

(b) (6)
Dear (b) (6)
This refers to your correspondence to the Bureau of Alcohol, Tobacco, Firearms and Explosives
(ATF), Firearms Technology Branch (FTB), received November 20, 2006, in which you inquire
about the lawfulness of manufacturing a new 7.62x25mm caliber upper receiver for SWD Ml 1/9
sub-machineguns. Enclosed with your correspondence is a drawing of this proposed device.
As background, the amended Gun Control Act of 1968 (GCA), 18 U.S.C. 92l(a)(3), defines
the term "firearm" to include any weapon (including a starter gun) which will or is designed to
or may be readily converted to expel a projectile by the action of an explosive ... [and] ... the
frame or receiver of any such weapon ...
Additionally, the National Firearms Act (NFA), 26 U.S.C. 5845(b), defines "machinegun" as
follows:
.. .any weapon which shoots, is designed to shoot, or can be readily restored to shoot,
automatically more than one shot, without manual reloading, by a single fimction of the trigger.
This tenn shall also include the frame or receiver of any such weapon, any part designed and
imended solely and exclusively, or combination of parts designed and intended, for use in
converting a weapon into a maclzinegun, and any combination ofparts from which a
machitzegw1 can be assembled if such parts are in the possession or under the control of a
person.

For your information, per provisions of the GCA, an unlicensed individual may make a "firearm"
as defined in the GCA for his own personal use, but not for sale or distribution. Individuals
manufacturing a firearm for their own personal use are not required to submit a sample to FTB
for approval. However, if the design of the firearm were questionable, it would be prudent for
such individuals to seek the advice of FTB prior to manufacture.
Also, based on the GCA, manufacturer's marks of identification are not required on firearms that
are produced by individuals for their own personal use. Nevertheless, ATF recommends the
placing of marks of identification on these weapons at the time of manufacture. This procedure

1074

RIP

-2-

(b) (6)

would aid law enforcement authorities in identifying the firearm should it become lost or stolen.
Additionally, the firearm should be identified as required in 27 CFR 478.92 if it is sold or
otherwise lawfully transferred in the future.
With respect to your enclosed illustration, FfB is unable render a formal determination of your
proposed 7.62x25mm caliber upper receiver based solely upon a drawing or similar depiction. A
prototype sample would have to be submitted to our Branch for examination and classification.
The FfB mailing address is as follows:
Bureau of Alcohol, Tobacco, Firearms and Explosives
Firearms Technology Branch
244 Needy Road
Martinsburg, WV 2540 l
However, FTB has previously examined a device similar to that which you describe in your
correspondence and classified it as a "machinegun" as defined by the NFA. You should be
aware that if the manufacture of this device would result in the assembly of a "machinegun" as
defined by the NFA, FfB could neither solicit nor sanction its unlawful production. Finally, you
should confirm that the manufacture of the proposed device does not violate any State or local
laws and ordnances.
Please note that if the FTB evaluation were to determine that the submitted sample is a
"machinegun" based on 26 U.S.C. 5845(b), we would be unable to return it unless you are a
licensed manufacturer and have paid the special occupational tax (SOT). Conversely, if FTB
determines that the sample is not a "machinegun" per 5485(b), it will be returned to you as soon
as our Branch has received a FedEx (or alternate carrier) account numb.e r to which the return can
be billed.
We thank you for your inquiry and trust that the foregoing has been responsive.
Sincerely yours,

Sterling Nixon
Chief, Firearms Technology Branch

1075

RIP

903050:(b) (6)
3311/2007-226

(b) (6)
Wise Lite Arms
P.O. Box 258
Boyd, Texas 76023
Dear (b) (6)
This refers to your correspondence dated December 27, 2006, to the Bureau of Alcohol,
Tobacco, Firearms and Explosives (ATF), Firearms Technology Branch (FfB), which
accompanied your submitted sample of a semiautomatic version of a Russian PKM machinegun;
this gun was manufactured by your company in Boyd, Texas.
Specifically, you have requested that FfB re-examine and classify this sample, fully identified
below, with a listing of major characteristics:

Wise Lite Arms, Model PKM Semi-auto, 7.62x54R caliber, serial number (b) (6)
(b) (6)

Overall length: approximately 47 inches.


Barrel length: approximately 24 inches.
Wooden buttstock.

As background, the amended Gun Control Act of 1968 (GCA), 18 U.S.C. 921(a)(3), defines
the term "firearm" to include any weapon (including a starter gun) wlriclr will or is designed to
or may be readily converted to expel a projectile by tire action of an explosive ... [and] ... tlre
frame or receiver of any such weapon ...
Further, the National Firearms Act (NFA), 26 U.S.C. 5845(b), defines "machinegun" to
mean.. .any weapon which shoots, is designed to shoot, or can be readily restored to shoot,
automatically more than one shot, without manual reloading, by a single function of the trigger.
The tenn shall also include the frame or receiver of any such weapon, any part designed and
intended solely and exclusively, or combination of parts designed and intended, for use in
converting a weapon into a machinegun, and any combination of parts from which a
maclzinegun can be assembled if such parts are in the possession or under tire colltrol of a
person.

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-2-

(b) (6)

This firearm was previously examined by FfB and classified as a "machinegun" as defined in
the NFA. Our Branch subsequently received your ATF Form 2, Notice of Fireanns
Manufactured or Imported, dated August 24, 2006, with regard to this particular firearm.
The current FfB examination noted that a "striker follow" condition still exists; that is, the
striker was not properly held in the cocked position by the sear and was following the rear of the
bolt when the trigger was depressed. This condition was identified during our first evaluation;
see letter #2006-970, dated August 30, 2006. This striker follow condition is easily attainable by
not fully depressing the trigger to the rear.
Consequently. we are returning the submitted sample to you for repairs and/or modifications.
After you have completed these, please return your firearm to FfB, and we will continue our reevaluation.
Finally. as received, the plastic pistol grip on your submitted sample was broken.
Your submission will be returned to you under separate cover.
We thank you for your inquiry, along with the submitted firearm, and trust the foregoing has
been responsive. Please do not hesitate to contact us if you have additional questions.
Sincerely yours,

Sterling Nixon
Chief, Firearms Technology Branch

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903050:(b) (6)
3311/2007-322

(b) (6)
Wise Lite Arms
P.O. Box 258
Boyd, Texas 76023
Dear (b) (6)
This refers to your correspondence of January 26, 2007 to the Bureau of Alcohol, Tobacco,
Firearms and Explosives (ATF), Firearms Technology Branch (FTB), which accompanied your
submitted sample of a semiautomatic version of a Russian PKM machinegun; this gun was
manufactured by your company in Boyd, Texas.
This firearm was previously examined by FTB and classified as a "machinegun" as defined in
the National Firearms Act (NFA) (please refer to letter #3311/2006-970). Our Branch
subsequently received your ATF Form 2, Notice of Fireanns Manufactured or Imported, dated
August 24, 2006, with regard to this particular firearm.
Specifically. you have requested an FTB re-examination and re-classification of this sample.
fully identified below, with a listing of major characteristics (see enclosures for photos):
Wise Lite Arms, Model PKM Semi-Auto, 7.62x54R caliber, serial number (b) (6)
(b) (6)

Overall length: approximately 47 inches.


Barrel length: approximately 24 inches.
Wooden buttstock.

Markings, receiver left side

WISE LITE ARMS BOYD TX


PKM SEMI-AUTO
CAL. 7.62x54r
SN. (b) (6)

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-2-

(b) (6)

As background, the amended Gun Control Act of 1968 (GCA), 18 U.S.C. 921(a)(3), defines
the term ..firearm" to include any weapon (including a starter gun) which will or is designed to
or may be readily converted to expel a projectile by tire action of an explosive ... [and] ... tlre
frame or receiver of any such weapon.
Further, the NFA, 26 U.S.C. 5845(b), defines "machinegun" to mean any weapon wlrich
shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one
shot, without manual reloading, by a single function of the trigger. The tenn shall also include
the frame or receiver of any suclr weapon, any part designed and illfended solely and exclusively,
or combination of parts designed and imended, for use in converting a weapon imo a
machi11egun, and any combination of parts from wlziclz a maclrinegun can be assembled if such
parts are in the possession or under tlze control of a person.
Additionally, please note that 27 CFR 478.92 states the following:
.. . each licensed manufacturer or licensed importer of any fireann manufactured or imported
shall legibly identify each suchfireann by engraving, casting, stamping (impressing), or
othenvise co11spicuously placing or causing to be engraved, cast, stamped (impressed) or placed
on the frame or receiver thereof in a manner not susceptible of being readily obliterated, altered,
or removed, an individual serial number not duplicating any serial number placed by the
manufacturer or importer on any other firearm, and by engraving, casting, stamping
(impressing), or othenvise conspicuously placing or causing to be engraved, cast, stamped
(impressed), or placed on tire frame or receiver, or barrel thereof in a manner not susceptible of
being readily obliterated, altered or removed, tlze model, if such designation has been made; the
caliber or gauge; the name (or recognized abbreviation of same) of the manufacturer and also,
when applicable, of the importer; in the case of a domestically made firearm, tire city and State
(or recognized abbreviation thereof) wherein the licensed manufactllrer maintains its place of
business; and in the case of an imported firearm, the name of the country in which manufacfllred
and the city and State (or recognized abbreviation thereof) of the importer.

Furthermore, for firearms manufactured or imported on and after January 30, 2002, the
engraving, casting, or stamping (impressing) of the serial number must be to a minimum depth of
.003 inch and a minimum height of 1116 inch. All other markings must be of a minimum depth
of .003 inch.
The FTB examination revealed that the submitted firearm, which fires from the closed-bolt
position, has been assembled incorporating the features detailed below.

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-3(b) (6)

1. A newly manufactured, one-piece, stamped sheet-metal receiver witb the following


characteristics:

The top, left bolt guide rail is approximately .065 inch thicker than the top, left bolt guide
rail on a PKM machinegun receiver. This additional thickness of the bolt guide rail
prevents the utilization of an unmodified machinegun bolt.
A hardened steel insert, approximately 3/4 inch wide, 1/8 inch high, and 114 inch deep
has been welded into the bottom of the receiver cavity. This hardened steel insert
prevents utilization of an unmodified machine gun bolt.
A return spring extension tube has been welded to the rear of the receiver. This tube
extends into the rear of the wooden butt stock.

2. An original trigger assembly modified in the following manner:

Installation of a newly created sear and sear spring.


A sear keeper pin has been welded in place through the left side of the trigger housing.
Installation of a newly created disconnector.
Installation of a newly created trigger and trigger spring.

3. A striker firing system, consisting of the following:

A newly created firing pin striker.


A newly created return spring assembly.
A newly created return spring guide.

4. The original bolt and bolt carrier modified as follows:

A newly created firing pin and firing pin spring have been installed in the bolt.
A metal block has been welded into the bolt firing pin channel, thereby preventing the
installation of a machinegun firing pin.
The sear engagement surface has been removed from the bottom of the bolt carrier.
Metal has been removed from the bottom of the bolt carrier to allow passage over the
hardened steel insert welded into the bottom of the receiver cavity.
Metal has been removed from the top left area of the bolt carrier to allow passage over
the thicker, left-side bolt guide rail in the receiver.
A disconnector reset has been added to the right, rear comer of the bolt carrier.
Installation of a newly created return spring buffer in the bottom, rear of the bolt carrier.

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-4-

(b) (6)

The FfB examination confirmed that fire-control components in an original machinegun


arrangement cannot be installed in your submitted sample receiver. Additionally, the receiver, in
its present configuration, cannot be readily restored to a machinegun configuration.
Furthermore, the "striker follow" condition identified during the previous FfB examination of
this firearm has been eliminated.
Therefore, your semiautomatic PKM-type firearm, in the configuration submitted, is not a
"firearm" as defined in the NFA. It is a "firearm" as defined in the GCA, 92l(a)(3).
As you may be aware, the GCA, 18 U.S.C. 922(r), prohibits assembly of certain semiautomatic
rifles and shotguns from imported parts. The implementing regulations in 27 CFR 478.39
include the stipulation that no person shall assemble a semiautomatic rifle or any shotgun using
more than l 0 of certain imported parts, if the assembled firearm is prohibited from importation
under 18 U.S.C. 925(d)(3) as not being particularly suitable for or readily adaptable to sporting
purooses. The parts listed in 478.39 are tabulated as follows:
(I) Frames, receivers, receiver

castings, forgings, or castings.


(2) Barrels.
(3) Barrel extensions.
(4) Mounting blocks (trunnions).
(5) Muzzle attachments.
(6) Bolts.
(7) Bolt carriers.
(8) Operating rods.
(9) Gas pistons.
( l 0) Trigger housings.

( 11) Triggers.
(12) Hammers.
(13) Sears.
( 14) Disconnectors.
(15) Buttstocks.
(16) Pistol grips.
( 17) Forearms, handguards.
( 18) Magazine bodies.
( 19) Followers.
(20) Floor plates.

Because certain semiautomatic rifles are prohibited from importation, the assembly of such rifles
using more than 10 of the above imported parts is prohibited under 922(r). However, assembly
of certain semiautomatic rifles using 10 or fewer of these imported parts is not prohibited under
this section.
Examination by FfB revealed that this rifle has been assembled with the following U.S.-made
parts:
l.
2.
3.
4.
5.
6.

Receiver.
Trigger.
Striker (hammer).
Sear
Disconnecter.
Pistol grip.

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-5-

(b) (6)

In addition. our examination disclosed that this rifle has been assembled with the following
eight imported parts:
I.
2.
3.
4.
5.
6.
7.
8.

Barrel.
Mounting block (trunnion).
Muzzle attachment.
Bolt.
Bolt carrier.
Gas piston.
Trigger housing.
Buttstock.

Accordingly. FfB finds that in its current configuration, this semiautomatic PKM-type firearm,
7.62x54R caliber. is made with no more than I 0 of the above-listed imported parts; its
manufacture. therefore. would not be in violation of 18 U.S.C. 922(r).
You should be aware that these findings are based on the sample as submitted. If the design,
dimensions, configuration, method of operation. or materials used were changed, our
classification and determinations pertaining to this firearm would be subject to review.
Your submission will be returned to you under separate cover.
We thank you for your inquiry, along with the submitted firearm, and trust the foregoing has
been responsive. Please do not hesitate to contact us if you have additional questions.
Sincerely yours,

Sterling Nixon
Chief. Firearms Technology Branch
Enclosures

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(b) (6)
From:

Sent:
To:

Subject:
Attachments:

(b) (6)
Tuesday, November 17, 2009 5:59 PM
(USAPAW)
(b) (6)
Readily Restorable Argument
Machinegun Argument from US v One Historic Arms Machingun.wpd

Here is the pertinent argument section from our brief filed last month. It should give you a good idea of readily
re storable.
I still think that Whalen, Angular Espinosa, and SW Daniel (all cited in the argument) will get you there!
Feel free to call me if you need something tonight!
Attorney
(b) (6)
Bureau of Alcohol, Tobacco, Firearms and Explosives
2600 Century Parkway NE
Atlanta, Georgia 30345
w) (b) (6)
c) (b) (6)
f) (b) (6)

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Page 1 of 3

TEST AND EXAM OF HISTORIC ARMS LLC


7.62x54R CALIBER CONVERSION SYSTEM (HA54RCCS)
SERIAL NUMBER (b) (6)
JUNE 1O, 2009
COWETA COUNTY TRAINING RANGE

BACKGROUND
The Historic Arms LLC 7 .62x54R Caliber Conversion System [HA54RCCS] is a device
that was designed to convert a MAC-10 firearm to fire 7.62x54R ammunition. The device
has no other function and will not function as designed unless the lower frame or receiver
from a MAC-10, which contains the MAC-lO's fire control group, is properly attached to
the HA54RCCS.
The HA54RCCS can be made to effect uncontrollable firing (Sputter Gun) if the
HA54RCCS is modified by adding additional components. It should be noted that any
unregistered parts added to the HA54RCCS that would cause it to fire automatically
should be classified as unregistered conversion devices Ct) because they convert the
HA54RCCS from a non-firearm into an unregistered machinegun.

ATFTEST
Prior to arriving at the Coweta County Training Range to conduct a firing test of the
HR54RCCS, The Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF),
Firearms Technology Branch (FTB) had constructed an unregistered machinegun
conversion device designed to convert the HR54RCCS from a non-firearm into an
unregistered machinegun. This unregistered conversion device consisted of a length of
chain, a turnbuckle, and a bent piece of aluminum as shown in Photo 1:

PHOTO 1

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Page 2 of 3
This unregistered conversion device was attached by FTB personnel to the HR54RCCS
as shown in Photo 2:

PHOT02
By attaching this unregistered machinegun conversion device to the HA54RCCS, FTB
personnel had constructed an unregistered machinegun that used the HA54RCCS in its
construction.
After constructing this unregistered machinegun FTB personnel then placed the weapon
on two (2) sandbags and proceeded to load the unregistered machinegun with a belt
containing five (5) rounds of7.62x54R ammunition.
At this point FTB Fireanns Examining Officer (b) (6)
placed one hand on
top of the unregistered machinegun and pulled back and released the unregistered
machinegun's charging handle with his other hand. The unregistered machinegun fired all
five (5) rounds of 7.62x54R ammunition in an uncontrolled fashion.
ATF TEST FINDINGS
A non-fireann can be converted into an unregistered machine gun using simple
components.

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Page 3 of 3

CONCLUSION
Based on my observation of the ATF's test of the HA54RCCS I find the following:
1) ATF personnel have the ability and knowledge to construct (make) <2> an
unregistered machinegun from a non-firearm using simple components.
2) Once activated, the unregistered machinegun constructed by A TF personnel using
the HA54RCCS as a component would fire until ammunition exhaustion.
3) The HA54RCCS in its original configuration is a non-firearm and is incapable of
discharging a cartridge.

(b) (6)
Cell: (b) (6)
Reference:

(1) 26 U.S.C., 5845 (b) Machinegun


The term "machinegun" means any weapon which shoots, is designed to shoot, or can be
readily restored to shoot, automatically more than one shot, without manual reloading, by
a single function of the trigger. The term shall also include the frame or receiver of any
such weapon, any part designed and intended solely and exclusively, or combination of
parts designed and intended, for use in converting a weapon into a machinegun, and any
combination of parts from which a machinegun can be assembled if such parts are in the
possession or under the control of a person.
(2) 26 U.S.C., 5845 (i) Make
The term "make", and the various derivatives of such word, shall include manufacturing
(other than by one qualified to engage in such business under this chapter), putting
together, altering, any combination of these, or otherwise producing a firearm.

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LEN SAVAGE, PRESIDENT

tti,;torie T1rm1 b.b.C'.


~1

~.:.
706-675-0287 Home
70~675-0818 Shop

CASE NO.

1:09-CV~Ol92-GET

TEST AND EXAM OF JUNE l0, 2009


COWETA COUNTY TRAINING RANGE
OBSERVATIONS:

Fireanns Examining Office (b) (6)


installed ATFs "collection of parts11 on the
Historical Arms 54R Caliber Conversion System [HA54RCCS). These parts consisted of chain,
aluminum plate and turnbuckle or tension boll After installation, he loaded HA54RCCSt and
fired five rounds of ammunition after releasing the cocking handle. He did not attempt to fire
HA54RCCS without the ATF collection of parts.
ATF damaged HA54RCCS in previous testing by breaking the shell deflector (which allows the
system, when correctly assembled using a standard MAC machine gun receiver to be safely
shoulder fired). This damage appears to have been caused by the earlier methods attempted by
FEO (b) (6) whose photographs show that the tension bolt was previously attached to the sheJl
deflector. ATF did not supply documentation explaining how the damage to the shell deflector
occurred.
ATF aJso presented the sample MAC type upper used in their analysis as well as the MAC
''receiver" with fire control components removed that ATF used in its April l 5, 2009, test video.
The MAC receiver" was a machinegun made by Military Armament Corp.
The signi1icance that the "receiver' ATF used is a machinegun receiver is the fact that ATF
installed the HA54RCCS into a machinegun, and that the macbinegun receiver functioned as a
machinegun. Did the A1F expect a different result? What other result is possible? When asked
what ATFs presented "sample MAC 10 upper" would do when installed in the same machinegun
receiver, ATF refused to answer, and requested the question be submitted in writing.
I attempted to test fire the HA54RCCS withoutATF's "collection of parts". I placed a loaded
belt in HA54RCCS with three ro1Dlds of Wllfllunition, and attempted to fire it. HA54RCCS did
not feed a single rowid, or fire a single round, of ammunition.

I also test fued HA54RCCS as designed; thatis, to be installed into an existing MAC
machinegun whose receiver had not been modified. After checking the completed assembly and

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test faring three rounds to set wid adjust the gas regulator, I fired eight rounds in two-round bursts
from the shoulder, erect without the aid of any bench. HA54RCCS functioned as designed; that
is, it functioned as a caliber conversion system to allow the MAC machinegun to safely fire 7.62
x 54R ammunition.
At the conclusion of the test and examinations at the Coweta County Sheriffs Training Range,
the government lent the defense its "collection of parts" so that defense could use these parts in
further tests.

TEST AND EXAM OF JUNE l 0, 2009


HISTORIC ARMS LLC TEST RANGE
OBSERVATIONS:

Defense experts provided a "sample MAC 10 type upper". The "sample MAC 10 type upper" is
an example of a MAC 10 upper that is designed to be used with a MAC 10 machincgun.
Defense experts installed ATF's "collection of parts." After some experimentation, the completed
assembly was then loaded with a 45 ACP round and fired in the manner identical to how ATF
tested HA54RCCS. The result of this test was that the sample MAC 10 type upper fired. i.e.,
expelled an projectile by means of an explosive.
Defense experts also duplicated the ATF test shown in the video taken on April 15, 2009.
Defense experts installed the sample MAC 10 type upper into a semiautomatic MAC receiver
stripped offi.re control componenlS [to replicate ATF's April 15, 2009 test], and test fired the
assembled firearm. The result was that the sample MAC l 0 type upper, instalJed on any type
MAC receiver stripped of fire control components, fired more than one shot in the same exact
manner as HA54RCCS.
Defense experts also installed ATF's collection of parts on a Flemming .22 Caliber MAC type
upper. The Flemming "upper" is marketed as a caliber conversion system for MAC type
machineguns since 1993. The result oftest firing the FJemming "upper" after installing ATF's
collection of parts was identical to the result oftest firing HA54RCCS after installing ATF's
collection of parts.
In other words, the results were identical to the Historic Arms 54R Caliber Conversion System in
that the Flemming unit ft.red all rounds supplied ammunition upon release of the cocking handle
with little experimentation.

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CQNCLUSIQNS:

The ATF tests conducted that produced automatic fire were two basic types.

Ooe where a "collection of parts" were applied [i.e. chain, aluminum plate and rumbuckle or
tension bolt] to HA.54RCCS. Testing by the defense revealed that this tests turns all MAC type
uppers into firearms, and on other commercially available "uppers" or "caliber conversion
systems" into a machinegun, although such macbineguns are unsafe and impractical because
once initiated, the fully automatic fire cannot be manually stopped or controlled.
The second test conducted by ATF [April 15, 2009] was to install HA54RCCS into a
machinegun receiver from which the fire control components were removed. ATF stated the
reason was that the receiver contains the recoil system. ATF did not state the obvious; namely,
all MAC type fireanns work in that fashion. Importantly, ATF's presented "sample MAC upper"
fired identically to the HA54RCCS when the same test
applied.

was

ATf failed to recognize that the HA54RCCS was made from portions of a semiautomatic
receiver. The correspondence of June I 0, 2008. identifies and docwnents "machinegun receiver"
as the term ATF used when describing the parts that were used to construct HA54RCCS. Pages
4 and 5 of the June IO, 2008. correspondence documents that the parts Historic Arms LLC used
are from a semiautomatic receiver: "The left side bolt guide rail was widened in a manner to
preventing installation of an unmodified machinegun bolt".
In ATF's mistaken attempt to purportedly ''readily restore" the portions of the semiautomatic
receiver used in the construction of the HA54RCCS, ATF assembled a "collection of parts" that
couJd be assembled into a machinegun. If applied to other MAC type uppers or caliber
conversion systems [that ATF has already declared not to be firearms], ATFs collection of parts
causes MAC type uppers or caliber conversion systems to fire automatically (the same result as
when applied to HA54RCCS).
FEO (b) (6) who examined and tested HA54RCCS, did examination and testing in United
States vs. David Olofson just four months prior to the submission of the HA54RCCS to ATF.
According to page 100 of the trial transcript, his testimony states:

"And ii can be a port solely intmtkd - so/.ely daiptd and intendt!d to con..ert R fueann inJo
a machine gun. or a combination ofoam that are designed to converl a firelll'm Into a
mgchine pn. ifthose Daris art: under- the ,ontroJ or possession ofa person."
Page 120 of the trial transcript:
"A. And those pam together jun bv themselves would be a machine gun.
Q. Okqy.
A. Because thg would be a combjnation ofeam from which a machine gun could~

confcured."

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My chief area of expertise is the history and the development of submachine


guns. My study of this narrowly defined subject has been quite thorough.
During the last fifteen years I have researched, written and had published
more than one-hundred and fifty magazine articles on this subject. My
research for these magazine articles averaged about sixty hours per article, a
total of approximately nine thousand hours.

Len Savage, of Historic Arms LLC, asked me to observe a test that was
conducted on June 9, 2009 at the Coweta County (Georgia) Training range
an employee of
by Firearms Examining Officer (FEO) (b) (6)
the Bureau of Alcohol, Tobacco, Firearms and Explosives Firearm Technical
Branch (BATF&E FTB). The pwpose of the test was to enable the
BATF&E FTB technician to demonstrate that the Historic Arms
HA54RCCS caliber conversion device for a MAC 10 could be made to fire
when it is not attached to a registered MAC 10 receiver.
My evaluation of the BATF &E FTB test was based upon both my
knowledge of how submachine guns function and of bow developmental
improvements led to better, less expensive and more compact models of
them.

(b) (6)

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Historic Anns LLC designed and manufactured a prototype caliber


conversion device for a MAC 10 submachine gun. The model number
"HA54RCCS" was assigned to this device.
Before submitting the MAClO caliber conversion device to the Bureau of
Alcohol, Tobacco, Fireanns and Explosives Firearms Technical Branch
(BATF&E FIB) for evaluation, Savage asked the FTB for advice. The FfB
suggested that he should designate the MAClO caliber conversion device as
a firearm. That designation was incorrect since the HA54RCCS MACI 0
caliber conversion device could not fire even one shot unless it was first
attached to a registered MAC 10 receiver. In a spirit of cooperation however,
Len Savage agreed to the BATF&E F'IB's request. The prototype device
was then sent to the BATF&E FTB for evaluation.
Though the device, as submitted, was unable to fire a single round, the
BATF&E FTB declared that it was unregistered machine gun. Historic
Arms LLC disputed this assertion and asked to have the test repeated while
experts observed. The BATF&E FfB agreed.
The test was repeated on June 9, 2009 at the Coweta County (Georgia)
Training range. It was conducted by Firearms Examining Officer (FEO)
At the request of Historic Arms LLC, I observed the
(b) (6)
repeated test.
Tue purpose of the test was to allow the BATF&E FTB's technician to
demonstrate that the Historic Arms HA54RCCS caliber conversion device
could be made to fire when it is not attached, to a registered MAClO
receiver. (b) (6)
the FEO, was able to make the HA54RCCS caliber
conversion device fire repeatedly. After observing the test, I concluded that
although the BATF&E FTB technician did make the HA54RCCS caliber
conversion device fire, the test was seriously and obviously flawed. A
review of historical information of the development of submachine guns will
make clear how the BATF&E FTB test was flawed.
The importance of correctly identifying the portion of a fireann that is
designated as its receiver must be emphasized. The fireann's receiver is the
controlled part of the firearm. To buy just the receiver of a firearm from a
federally licensed dealer, it is necessary for the buyer to complete a Federal
Form 4473 and then pass a background check. The parts that are attached
to the receiver, however, are just that, parts. The non-receiver parts are

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unregulated. Anyone can buy non-receiver spare parts without either


completing a Form 4473 or passing a background check. Many firearm
owners buy spare parts in anticipation of wearing out a part or losing one. In
the same manner, by adding new parts, it is both simple and lawful in most
cases to change the caliber of a firearm. Changing calibers makes any
firearm more versatile. One of the more :frequently encountered firearm
caliber changes allows a centerfire fireann to operate while using much less
expensive .22 Long Rifle rimfire ammunition. The use of this less costly
ammunition for practice helps to promote both proficiency and safety.
The combination of parts that constitute a fireann receiver or frame is not
always clear. A starting point is ATF Publication 5300.4, titled Federal
Firearms Reference Guide 2005. The guide defines "Firearm frame or
receiver" as, "That part of a firearm which provides a housing for the
hammer, bolt or breechblock, and firing mechanism, and which is usually
threaded at its forward portion to receive the barrel."
Some firearm receivers fit the Federal Firearms Reference Guide definition
very well. One of the best examples of a :fireann receiver that fits the Federal
Firearms Reference Guide definition is a British Lanchester submachine
gun. It contains every Federal Firearms Reference Guide defined part plus
the trigger.

This British Lanchester receiver contains every Federal Firearms Reference


Guide defined part.
Though not mentioned by name in the Federal Firearms Reference Guide's
definition of a receiver, the Lanchester receiver also contains the trigger, the
sear, the disconnector, the fire-control selector, the operating-spring and the
receiver's removable end-cap. The end-cap captures the operating-spring as
it is compressed by the rearward traveling bolt. Containing both an

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RIF

operating-spring and a receiver end-cap, a Lanchester machine carbine


receiver is fully functional after it has been removed from its stock.
A Gennan MPI 8 submachine gun is almost as good an example as the
British Lanchester. Except for its simple trigger, which is located within the
stock, the MP18 receiver is functionally identical to the Lanchester's. Like
the Lanchester, an MP18 receiver is fuJly functional after it has been
removed from its stock. To fire, one only needs to press the trigger-transfer
bar.

-.

Ltri~~~~transfer

bar

The German MP 18 was the first practical pistol-caliber machine gun.


Except for the trigger, its receiver contains eve:ry Federal Firearms
Reference Guide defined receiver part. The trigger is located in the lower
frame, which is attached to the stock. The MP18 receiver can be removed
from its stock and fired by pressing forward on the trigger-transfer bar.

Detennining which portion of a fireann constitutes its receiver becomes


more complicated when examining the 1921 Model of the US Thompson
Submachine Gun.
The Thompson's barrel is attached to a rectangular steel block. The interior
of this block is hollow and it contains the bolt and the operating-spring.
Unlike the British Lanchester and the German :MPI 8 though, the Thompson
receiver does not have a removable end-cap to capture the operating-spring.
Instead, the Thompson's receiver is closed at the rear end, thus functioning
as an integral end-cap to capture the operating-spring. Moreover, the
Thompson's trigger, sear, fire-control selector and safety, are not integral
with the receiver. They are contained in a removable lower frame. In spite
of the Thompson receiver,s lack of a trigger and other fire-control parts, the
BATF&E has correctly identified Thompson's upper frame as its receiver.

1093

RIF

5
When examined, this islogical. The reason is clear. A Thompson receiver,
without the addition of any other parts can be made to fire at least one round.
The assertion in the paragraph above can be demonstrated by conducting a
simple, but dangerous, test Remove the Thompson's lower frame, which
contains the trigger, the sear, the safety, the disconnector and the fire-control
selector. While holding the Thompson receiver up side down, grasp the
cocking knob retract the bolt. While holding the bolt retracted, insert a
loaded drum magazine into the receiver. Hold the magazine tightly and
release the bolt. One shot, and maybe more, will be fired.

The receiver of a 1921 Thompson Submachine Gun is depicted at the top of


this illustration. It contains the barrel, the bolt and the operating-spring.
The rear wall of the receiver captures the operating-spring. The lower frame
contains the trigger, the sear, the safety, the disconnector and the frre-control
selector. Without its lower frame attached, the receiver can be made to fire.
An Israeli Uzi submachine gun operates much like a Thompson Submachine
Gun. Like the Thompson's receiver, an Uzi receiver contains the barrel, the
bolt and the operating-spring. Like the Thompson receiver, the Uzi receiver
is closed at the rear end, thus capturing the operating-spring. Also like the

1094

RIF

Thompson, an Uzi's lower frame contains the trigger, the sear, the
disconnector, the safety and the fire-control selector. Finally, like the
Thompson receiver, the Uzi receiver, without its lower frame, can be made
to fire one round. The procedure to demonstrate this is slightly different
though since without using its lower frame a magazine cannot be attached to
an Uzi receiver.

An Uzi receiver contains the barrel, the bolt and the operating-spring. The
Uzi receiver is closed at the rear end. Thus, it captures the operating-spring.
The Uzi's lower frame contains the trigger, the sear, the disconnector, the
safety and the fire-control selector. Even without the lower frame attached,
an Uzi receiver can be made to fire one round.

To conduct this somewhat dangerous Uzi firing demonstration, first remove


the lower frame which contains the trigger, the sear, the disconnector, the
safety and the fire-control selector. If the Uzi that is being tested is later
model that has a ratcheting top cover, remove the top cover. If the Uzi has
the earlier, non-ratcheting, top cover, leave it in place. In either case, pull
the bolt rearward and hold it retracted. Place a cartridge into the chamber
and release the bolt. The Uzi will fire.
By understanding how the firearms in the preceding examples function, it is
not difficult to decide which portion of these firearms constituted their
receivers. The identification of the receivers of many other fireanns,
however, is more difficult due to the improved features of their construction.

1095

RIF

One early submachine gun with an improved receiver was the pre-World
War Two German Erma model EMP (Erma Machine Pistol). Like the
receiver of its predecessor, the German ~18, the Erma E:MP receiver is a
round tube with an attached barrel. The receivers of both the MP 18 and the
E?vfP contain the bolt and the operating-spring. Unlike the l\1P18 though,
the Erma E?vfP receiver incorporates neither a sear to interrupt the travel of
the bolt nor an end-cap to capture the operating-spring. Though it has been
designated as the receiver, the barreled portion of the E?vfP alone cannot be
made to fire because it lacks a means to capture the operating-spring. The
EMP's lower frame contains the trigger, the sear, the disconnector, the :firecontrol selector and an end-cap for the receiver. The benefit of attaching the
end-cap to the lower frame is that the end-cap cannot be lost, thus disabling
the firearm.

The barreled-portion of the Erma EMP is designated as its receiver. The


barreled-portion contains the bolt and the operating-spring but not an endcap to capture the operating-spring. Lacking a means to capture the
operating-spring an EMP receiver alone, cannot fire.

During World War Two, the Enna finn also made the German MP40. The
MP40 receiver, like the Erma EMP receiver that preceded it, contained the
barrel, the bolt and the operating-spring. Like the E:MP, the MP40 lower
frame contained the trigger, the sear and an end-cap for the receiver. Also
like the EMP, without some means to capture the operating-spring an MP40
receiver, the upper frame, cannot be made to fire.

1096

RIF

The German MP40 shares many features of the Erma EMP. Like the EMP,
without some means to capture the operating-spring the :MP40 receiver, the
upper frame, cannot fire.

The post World War Two Walther :MPK shares most of the operational
features of an Erma E:MP and :MP40. The MPK's barrel is attached to its
upper frame and the upper frame contains the bolt and the operating-spring
as well. Like the Erma EMP and MP40, the upper portion of the Walther
MPK frame has no provision for capturing the operating spring. The lower
portion of the Walther MPK frame contains the trigger, the sear, the
disconnector, the safety, the fire-control selector and an end-cap to capture
the operating-spring. Without a means to capture the operating-spring the
Walther MPK upper frame cannot be made to fire.

The upper frame of this Walther MPK contains the barrel, the bolt and the
operating-spring. The lower frame, however, is designated as the receiver.
The :MPK receiver contains the trigger, the sear, the disconnector, the safety,
the fire-control selector and an end-cap to capture the operating-spring.
Without some means to capture the operating-spring, an :MPK upper frame
cannot fire.

1097

RIF

Though the Erma Etvfi>, MP40 and Walther :MPK operate in similar
manners, the upper frames of the former two firearms are identified as their
receivers. The lower frame of the Walther .MPK, however, is identified as
its receiver.
When the contradictions in the paragraph above are examined, it becomes
clear that the MPK's lower frame has been correctly identified as its receiver
but the EMP and MP40 upper frames have been misidentified. This is
because the barreled upper portions of all three of these firearms lack a
means to capture their operating-springs. Without a means to capture their
operating-springs, none of them can fire. Thus, the Walther 1'.1PK lower
frame is correctly identified as its receiver while the upper frames of the
EMP and MPO have been misidentified.
The above conclusion is supported by Canada's Centre ofForensic Sciences.
The Centre of Forensic Sciences is located in Ontario, Canada, and is
operated by the Canadian Ministry of Community Safety & Correctional
Services. This governmental organization classifies an MP40 lower frame
as its receiver for the above stated reasons plus one more. The identification
of the MP40's manufacturer appears on the lower frame but not on the upper
one.

At the top of this illustration is an MP18 receiver. It bas an end-cap to


capture its operating-spring. For this reason, an MP18 receiver can fire
when it is not attached to its lower frame. An Erma EMP receiver is in the
center and a Walther MPK upper frame is at the bottom. Neither of these
incorporate a means to capture their operating-springs. Without a means to
capture their operating-springs, neither an E:MP receiver (the upper frame)
nor an ~K upper frame, can fire.

1098

RIF

10

The Firearms Technical Branch of the Bureau of Alcohol, Tobacco,


Firearms and Explosives has correctly identified the lower frames of
MAC 10 and Ml 1 submachine guns as their receivers. Like the Walther
MPK upper frame, the MAC I 0 and Ml I upper frames contain only a barrel,
a bolt and an operating-spring. These upper frames do not incorporate a
means to capture their operating-springs. Without some means to capture
their operating-springs, neither a MAC 10 nor M 11 upper frame can fire.
The MACIO and Ml I lower frames (their receivers) contain all of the firecontrol parts and they have a means of capturing the operating-spring that is
located in the upper frame. For this reason, the lower frames of these
firearms have been correctly designated as their receivers.

The lower frames of the MACIO Qeft) and the Ml 1 (right) have been have
been correctly classified by the BATF&E FTB as their receivers. The
receivers contain the trigger, the sear, the d.isconnector the safety, the firecontrol selector and an end-cap to capture the operating-spring. Note that
the operating-springs protrude from the upper frames (see arrows). Without
some means to capture the operating-spring, the upper frames cannot be
made to fire.

The Firearms Technical Branch of the Bureau of Alcohol, Tobacco,


Firearms and Explosives has many times affirmed this method of
determining the receiver designation of a firearm. Perhaps the best known
and probably the most produced BATF&E FTB approved non-firearm
MAClO and Ml I upper frame is the Fleming .22 Long Rifle caliber
conversion for them. Fleming .22 Long Rifle caliber conversions are
popular because they allow the owners of MACIOs and Mlls to practice
more quietly with much less costly ammunition. Except for the .22 caliber
barrel and a magazine-well that permits the use of a commonly available

1099

RIF

11

Ruger .22 Long Rifle caliber magazine, a Fleming caliber conversion upper
frame is almost identical to an original MACIO or Ml I upper frame.

At the top of this illustration is a Fleming Ml 1 .22 Long Rifle caliber


conversion upper frame. Below it is a standard Ml 1 9mm caliber upper
frame. Neither upper frame incorporates a method to capture the operatingspring (arrows). Without a means to capture their operating~springs, neither
non-firearm upper frame can be made to fire. The BATF&E FTB
determined in 1993 that both of these upper frames are not firearms.

In 1993, William Fleming submitted a sample of his .22 caliber Ml 1


conversion kit to the BATF&E FIB for an evaluation. After examining the
Fleming kit, the BATF&E FTB issued a letter ruling. The letter, dated May
17, 1993, stated in part:

Based on the above examination, the submitted M11-22


sub caliber conversion kit is classified as not being a
firearm as that term is defined in Title 18 u.s.c.
Chapter 441 or Title 26 u.s.c. Chapt~r 53.
This BATF&E FIB letter ruling re-confirms that if an accessocy upper
frame does not incorporate a means to capture the operating-spring, thus
rendering it incapable of firing, then it is not a firearm. This determination
is both correct and logical.

1100

RIF

12

DEPARTMENT OF THE TREASURY


BUREAU Of' ALCOHOL. TOBACCO AND FIREARMS
WASHINGTON. P .C. 20ZZ6

LB:P:TE:EMO
3311.4

Kr. William H. Fleaing


Fleminq Pirearas 1 Inc.
7720 East 126 Street North
Collinsville, Oklahaaa 74021

near xr.

Flemihg:

This refers to your letter 01' April 29, 1993, with


which you eW>itted a 8Uh calibar conversion kit
designed to be used with SW!> M11/Nine. sulmachineguns.
~nation

of the su11aitted sample, no serial nWlber,


indicates that it i a lbt aatal upper receiver, .22
rllirire caliber barrel, and .22 rim!ire caliber bolt.
These components are designed to replace the 9. .
caliber upper receiver and bolt assembly on the
1111/Hine Ublaacbinegun. The sub caliber ass8Jlbly,
desi9nated X11-22, i desiqnad to function only in open
bo1t tiring IO.l/Kine aubllachinequns. 'J.'he underside of
the asseably has no cutouts to permit use in a closed
bolt, hBllDler fired K11/9 firearm.
Based on the above examination, the submitted x11-22

sub caliber conversion kit is classified as not being a


firearm as that term is defined in Title 18 u.s.c.
Chapter 44, or Title 26 u.s.c. Chapter 53.
Please be advised that this detel"Jllinatlon i based on

the sample as submitted. If the de~iqn, dim@nsions,


used or configuration is changed, this
classification is sub1act to raviaw.

:11at~rial

The submitted sample is b4i!in9 returned under separate


cover.
We trust that the foreqoin9 ha.a been responsive to your
inqiry. If we uy be or any fUrthez assistance.
please contact us.
sincerely yours,

~1/J.~

Chief, :Pl.reanas Technoloqy Branch

This is the entire BATF&E FIB determination letter that states that the
Fleming Ml 1 .22 caliber conversion upper frame is not a firearm.

1101

RIF

13

The Lage Manufacturing Company produces BATF&E FTB approved extralong upper frames for both MAC 1O and Ml I firearms. The extra-long
frames allow the use of heavier bolts and thereby slow the rates of fire. The
extra frame length also increases the sight radius. An increased sight radius
decreases sighting errors.

As with a Fleming non-firearm MAClO and Ml 1 upper frame, a Lage


MAClO and Ml 1 upper frame does not incorporate a means to capture its
operating-spring. Without some means to capture the operating-spring, a
lengthened Lage Ml 1 upper frame cannot be made to fire.

The lengthened Lage Ml 1 upper frame does not incorporate a means to


capture the operating-spring (arrow). Without some means to capture the
operating-spring, the lengthened Lage Ml 1 upper frame cannot be made to
fire. For this reason, the BATF&E FTB has determined that the Lage Ml 1
upper frame is not a fireann.

Before designing the disapproved HA54RCCS MAC 10 caliber conversion


upper frame, Historical Anns designed another non-firearm MACIO upper
frame that was approved by the BATF&E FrB. The MACIO caliber
conversion upper frame that the BATF&E FTB previously approved is
functionally identical to the disapproved HA54RCCS.
The BA1F&E FTB approved MAClO caliber conversion upper frame
allows a MACIO (or Ml 1) to use Calico helical magazines. To accomplish
this, the Historical Arms Calico magazine upper frame was lengthened.
Like the previously described and BATF&E FIB approved non-firearm
upper frames, an Historical Arms Calico MACIO upper frame lacks a means
to capture its operating-spring. Without some means to capture its

1102

RIF

14

operating-spring, an Historical Arms Calico helical magazine MAC 10 upper


:frame cannot be made to fire.

At the top of this illustration is an Historical Anns MACIO upper frame that
permits the use of Calico helical magazines. Below is a standard MAClO
upper frame. Neither upper frame incorporates a method to capture the
operating-spring (arrows). Due to this lack, neither a Calico helical
magazine MAC I 0 upper frame nor a standard MAC 10 upper frame can be
made to fire unless some means is devised to capture the operating-spring.

The Historical Anns Calico helical magazine MAC I 0 upper was given its
initial BA1F&E FTB written approval on June 7, 2005. In a second letter
dated November 3, 2006, the BA'IF&E FTB re-emphasized their previous
approval, stating, "We found that, apart from feeding from a Calico
magazine, the design features of the original Ml O/Ml l had not changed
significantly. Therefore, the FTB classification provided in #2005-440 will
not be re-evaluated."

1103

RIF

IS

903DSO:RDC

3311/200S-440
Mr. Len Savage
President

HiJCOric Arms LLC


1486 ct\en'l' Road
Franklin, GA 30217
Dear Mr. Savage:
This refas to your letter o rMay 25, 2005, IO lhc: Fin::arms Tec.lmoloSY Brandt (FTB), Bureau or
Alcohol. Tob=, Fire:.mlJ and Ellploai~CI (ATf). rcpnilng lhc logalityormodifying an MlO
or Ml t-t)Jlc: uppc:1' n:ccivcr to accept a Calico-type helical magaz:inc.

A5 you are llWlll'e, lhc: Gua Ceatrel Ad or 1968 (GCA), 18 U.S.C. 9Jl(aKJJ, dcfioc:s the rcnn
"iirunn" to im:hdc: the l'bllowins:
. (A) OllY weapon (inclwlbtg a Jlalfu gun) ...JtJdi 1t1IU or ls daign,,J ID or llT'2)' M readily
con111Vt"110 tX/HI a projrtailt by rht ac:non of"" apl0Ji11t: (B) heframe or niatiWI" ofany
weap011, (CJ rDIYfir~ mufller or siltn~: <If' (DJ 411)' dutnlaM dm~. Such lum docs
not includt tJJt ontlqutfinarm.

11<'*

Further, ~N1tloHl Flreanu Ad (l'"FA), 16

u.s.c. SIMS(), defines ''flrarin" -

. .Oj o shotgiu. ha~iltg a baTTtl or barrels ofless lluui I 8 lncha in lenrt}r; (1) a Wf!apotr made
from a shotgun tfSfl.Ch wtapon OJ "'odJ}IM luu an ot'a'flll lt!ngfh oflas than 16 lndres or a
lotrrffi or bcrrelsoflcss lhan 18 lncJ:o ill ltngtlt: (J) a rijTt /raring !I ha1TCI 11~ btur~ oflr.1s
lhan 16 indiu ht ltngllr; (4) " wt.apon nsodr fit'm o rifle ifsuch W&llpOn cu modified lrtJJ an
uwuull lrngth of/as t/aan 16 inclics or" ba'"I or barrels ofltJR than 16 lncha in /nsilA; (Si
any othtr weapon. as defi11ed in sulu4ctia11 {t); (6) a madiinqun; (7) any sillnCV (cis defl""' 111
18 U.S.C. f 921): a1lll (8) a dut"4ai"f: de\lic.. 11rt lU711 "firearm s/ioll nol irrclude an antique
fire.arm or On)I DtVft:t: COrlrt:r tJian Cl mac/lfnqwt OT dattttc1h1t: dflllia) w/ttcfi, all/roogh dutinnJ
m a ""~pon. clte..[U.S. AnOl'IM)' GaIJ/) ... finds by reason ofrJi, dau ofib manuj'adMrc,
llC/ue, wign. anJ/ otA" t:haractQi.rrtu i.r primarily a collt:aor'
Cl.JG

i- and ls not likly to be UttJ

l'fl:tlpon.

Basal on the FTB evaluation or tJie submiued dnwing. it appears I.hat the propo~
}SJD.'Ml ll:ype uppc:rreceiva- assembly will be rede1igned to llCOOllUllodate a Calico hdlcat
rnaguine mounl!!d alop the rccclvi:r. In addiliOD, you~ the fircacm 's oricinaJ Si!ITliavlOmatic

fullction will not be al\:en:d.

The uppc:rm:c:iverof1111.Ml~'MU t)l)C fireann does not amstitutethe frame ar receiverofa


firearm, as that lmn 1s defined ill 27 CFR Section 478.1 1 (formeriy 178. l l }. Sued on the
inromullion provided, lhc manu!actin ora inodified Mlllr'Ml l l}'PC irpperrcccivei- lhal ii
redesigned to~ a Calico helical mag~nc docs not c:onstinnc the: manufxtun: of a fimne or
n:ccivc:r or a lln:ann.. The pr0))0$Cd vpper l'l!Ceiver is not subjeei to e11hcr 18 US.C. Olapter 44
(the GCA) orl6 tJ.S.C. CUpcer SJ (the NFA).

This tleu:nni!WH>n is rdcvam IO !be ilCIJI u proposoi Any alter.lions or rnodific:aDom to 1he
design would subject the item to

~review.

the fon:gainii has been ruponsive to your inquiry Please contact us irwc c:an be of any
f11nher ucistance.

We rrust

Sinct:re\y )'OWi,

Sterling Nixon

Cbief, FU-UU Technology B~nch

This is the original BATF&E FTB approval letter for the Historical Arms
MAClO Calico helical magazine upper frame.

1104

RIF

16

U.S. Department of Justice


Bureau of Alcohol, Tobacco,
Firearms and Explosives

90305Q;RV

331112007-076

tllV0321Qj
Mr. Len Savage
President
HiSIOric Amis, LLC
1486 Cherry Road
Franklin. Georgia 30217
Dear l\1r. Suvage:

This is in response co :your i11<j11iry to the Firearms fcdmo logy Isranch (FTB). Bureau of
Alcohol, Tobacco, Firearms and Explosives (ATF}, regarding whether FTB intends to reclassify
your design or an MI Q. or MI l t')'J'C uppa ~ceiver modified to accept a CalicolYPe helical
magazine.

Our Brdl\Ch isGUcd a classification of this modificalion in our June 7, 200S, letter to you (please
refer to #3311 i200S-440}. We found that. apart from feeding from a Calico magazine, lhc design
features of the original MtOIMl 1 had not changed significantly. Thercfurc, lhe FTB
classification provided in #2005-440 will nol be re-evaluated.
We trust lhc foregoing has been responsive to your inquiry. Please contact us if we can be ofany

funhcr KSSistancc.
Sincerely yours,

~u:.'7---./
~ Sterling Nixon
'" 0
Chief, Firearms Tccilnology Branch

This is the second BA1F&E FTB letter regarding the Historical Arms
MAClO Calico helical magazine upper :frame. The letter re-affirms that the
Historical Arms Calico helical magazine MACIO upper frame is not a
fireann receiver.

All of the previously described BA1F&E FfB approved MACIO and Mil
non-firearm upper frames have one thing in common. None incorporate a
means of capturing the operating-spring. Unless these non-firearm upper
frames are used in the way for which they were intended, with a registered

1105

RIF

17

MACl 0 or Ml 1 receiver attached, or some other means is devised to capture


their operating-springs, they cannot be made to fire.
Historic Arms made a second MAC 10 caliber conversion upper frame, the
HA54RCCS. This is the one that the BATF&E FfB disapproved. Perhaps
the BA1F&E FfB was confused by the HA54RCCS because it is larger than
the previously approved non-fireann Calico magazine MAC 10 upper frame.
The HA54RCCS had to be larger because it enables the pistol-caliber
MAC I 0 to fire a larger rifle caliber cartridge.
Like the previously approved MACIO and Mll non-firearm caliber
conversion upper frames, the Historic Anns LLC HA54RCCS MACIO
caliber conversion upper frame does not incorporate a means to capture its
operating-spring. Unless the HA54RCCS upper frame is attached to a
MACJ 0 receiver, or some other means is devised to capture its operatingspring, an Historic Arms HA54RCCS MAC 10 upper frame cannot be made
to fire.

The Historic Arms HA54RCCS MAClO caliber conversion upper frame is


at the top of this illustration. It incorporates no method to capture the
operating-spring. Unless the HA54RCCS upper frame is attached to a
MACl 0 receiver, or some other means is devised to capture its operatingspring, the Historic Arms HA54RCCS upper frame cannot be made to fire.

The ffistoric Arms MAClO caliber conversion upper frame was submitted to
the BA1F&E FTB for evaluation. It was disapproved with the explanation
that the Historic Anns MACI 0 caliber conversion upper frame is an
unregistered machine gun. When asked how that was determined, a

1106

RIF

18

representative of the FTB stated that they had been able to make the Historic
Arms MA.Cl 0 caliber conversion upper frame fire twice.
Len Savage inquired to learn how the FTB had geen able to make the openended MAC I 0 caliber conversion upper frame fire? It was explained that in
order to make the Historic Arms LLC MACIO caliber conversion upper
frame fire, the BATF&E FTB covered the end of the upper frame with an
"L,, shaped metal plate. The new plate was held tightly in place with a chain
and a turnbuckle. These new parts. simple and crude as they are, captured
the operating-spring of the HA54RCCS and allowed it to fire by using the
original cocking handle as a trigger.

Using a chain, an "L" shaped metal plate and a turnbuckle, the BATF&E
FTB created a crude, likely dangerous, receiver that captured the operatingspring and permitted the Historic Arms LLC MACIO caliber conversion
upper frame to fire uncontrollably.

The BATF&E F1B agreed to repeat the HA54RCCS test for Len Savage
and other expert witnesses to observe. Before firing, the FTB technician
placed the unit on a sandbagged table and loaded ammunition into the
feeding tray. The technician held the entire unit firmly against the sandbags
and re1racted the cocking handle, thus compressing the operating-spring
against the new end-cap. Finally, the technician released the cocking
handle. The operating-spring, which was compressed against the new endcap, pushed the bolt forward. With no means to stop the bolt from cycling,

1107

RIF

19

the HA54RCCS MACIO caliber conversion device fired uncontrollably until


the ammunition was exhausted.
Did this test prove that the Historic Arms HA54RCCS MAClO caliber
conversion upper frame is an unregistered machine gun? No. Without the
chain, the metal-plate and the turnbuckle that was installed by the BATF&E
FTB, the HA54RCCS MAClO caliber conversion upper frame could not
have fired. The chain/metal-plate/turnbuckle parts, as simple as they are,
constituted a new unregistered machine gun receiver that was manufactured
by the BATF&E FTB for the sole purpose of causing the Historic Arms
HA54RCCS MACIO caliber conversion to fire.

If the BATF&E F'fB technician had constructed the new receiver in a more
conventional manner, it would be obvious that he had created a new firearm
receiver. The use of the chain, metal-plate and turnbuckle tends to confuse
the issue. To the untrained eye, these simple parts may not appear to be a
firearm receiver but they definitely function as one though when used in the
manner that the BATF&E FTB technician did.
In order to demonstrate that the BATF&E Fm teclmician's chain, metalplate and turnbuckle constitute a new receiver, these parts were borrowed
from the BATF&E FTB. They were then used to tum a standard MACIO
non-firearm upper frame into a firearm. As did the BATF&E FfB
teclmician, the metal-plate was placed over the open end of a MAC I 0 upper
frame and held there tightly by the chain and turnbuckle. While firmly
holding the MAC 10 upper frame against a workbench, the cocking handle
was retracted and a round placed into the chamber. When the cocking
handle was released, the compressed operating-spring pushed the bolt
forward and the BATF designated non-firearm MACl 0 upper frame fired.
The above test was repeated using a BA1F designated non-fireann Fleming
Ml l .22 caliber conversion upper frame. Unlike the previously tested .45
caliber MACIO non-firearm upper frame, the non-firearm Fleming caliber
conversion upper frame has a magazine well. After installing the BATF&E
FTB technician's chain, metal-plate and turnbuckle, a full magazine was
inserted into the non-firearm Fleming caliber conversion's magazine well.
The unit was held tightly against the workbench and the cocking handle was
retracted to compress the operating-spring against the BATF&E FfB
teclmician's
metal-plate. When the cocking handle was released, the
compressed operating-spring pushed the bolt forward. Like the BATF&E

1108

RIF

20
FTB technician's test of the Historic Arms HA54RCCS MAC 10 caliber
conversion upper frame, the non-firearm Fleming .22 caliber upper frame
fired uncontrollably until the entire magazine of ammunition was exhausted.

Using the same test methods and same chain, metal-plate and turnbuckle that
the BATF&E F'fB technician used to make the Historic Arms HA54RCCS
MACIO caliber conversion unit fire, this BATF&E non-firearm designated
MACIO upper frame was made to fire. The chain/metal-plate/turnbuckle
unit constitutes the manufacture of an unregistered receiver

Using the same metal plate, chain and turnbuckle, many other BATF&E
FIB non-firearm designated upper frames and caliber conversion units could
be made to fire. These include, but are not limited to, the Lage MAC 10 and
Ml I upper frames and the Historic Arms MAC IO and Ml 1 Calico magazine
conversion upper frames.
The results of the tests are clear. When combined with an open-ended
BATF&E FIB designated non-firearm upper frame, a chain, a metal-plate
and a turnbuckle become a firearm receiver. Neither a MACl 0 upper frame

1109

RIF

STORIES IN SMALL ARMS REVIEW


1. The TASK Slow Fire Ml 1
Volume 1, number 1

2. BRITAIN'S SALVATION The STEn Machine Carbine Mark II, III & V
Volume 1, number 3
3. The TASK Ml 1 Funneled Magazine Well
Volume 1, number 5
4. Gatling Guns by Furr Arms
Volume 1, number 5
5. Cheap Thrill$: 22Rimfire Machine Guns
Volume 1, number 6

6. The Winningest Subgun: Swedish 'K' L05 l


Volume 1, number 7
7. Magazine Loading Tools
Volume 1, Number 7
8. Vanguard Ml 1
Volume 1, number 10
9. Dual Residency
Volume 1, number 11
10. A Primer of the Generations of Subguns
Volume 2, Number 1
11. M2 Carbine, A Pipsqueak Assault Rifle or A Magnum Subgun
Volume 2, Number 1 (Side Bar to Subgun Generations in same issue)

12. Madsen MSO


Volume 2, Number 2
13. The S'PEn MKIV
Volume 2, number 3

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14. The Alabama Nationals Report


Volume 2, number 5

15. The Little Gun That Could


Volume 2, number 5
16. Small Wonders, ARIS Registered Drop In Auto Sears
Volume 2, Number 8
17. AOW Briefcases
Volume 2, Number I 0
18. UPS Shipping Tips
Volume 3, Number 2
19. The Stemple 76/45
Volume 3, Number 3
20. The Golden Age of Machine Gun Buying
Volume 3, Number 4
21 . The American Class Three Association Nationals
Volume 3, Number 5
22. Planning, Preparation & Practice
Volume 3, Number 6
23. M21 Folding Subgun
Volume 3, Number 7
24. Suomi/M16
Volume 3, Number 9
25. Ml 1 Repair
Volume 3, Number 10
26. Beretta M38
Volume 3, Number 11

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27. Full Auto S&W M659


Volume 3, Number 12
28. Unique Model L
Volume 4, Number 2
29. Easy Magazine Repairs
Volume 4, Number 4
30. BMl's Calico Kit
Volume 4, Number 6
31. Seven Patchett Patents
Volume 4, Number 8
32. Maximizing Subgun Fun
Volume 4, Number 8
33. An Easy Swedish K Repair
Volume 4, Number 9
34. Personal Defense weapons, Tactical and Practical Considerations
Volume 4, Number I 0
35. Thai Madsen Ml946 & MSO
Volume 4, Number 12
36. The Knob Creek Experience
Volume 5, Number 1
37. Maximizing A .45acp Uzi
Volume 5, Number 2
38. The Roots of the Uzi
Volume 5, Number 4
39. 9mm ARIS I Lightning Link Combo
Volume 5, Number 4

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40. NFA Firearms, Wills & Estates


Volume 5, Number 5

41. AK.22
Volume 5, Number 6

42. Gyrojets in Vietnam


Volume 5, Number 7

43. Firearms and the Industrial Revolution


Volume 5, Number 9
44. Breaking the BATF's Form Four Code
Volume 5, Number 9

45. Gyrojet Part 1


Volume 5, Number 10

46. Gyrojet Predecessors


Volume 5, Number I 0
4 7. Sterling QD Scope Mount
Volume 5, Number 10

48. The Transonic Speed of Sound and Its Effects on Accuracy & Noise
Volume 5, Number 11

48. PPS42 and the Clash of the Titans


Volume 5, Number 12

49. M2 Carbine v PPS43


Volume 5, Number 12
50. Norrell FA 10/22 & Norrell Interview combined as one story
Volume 6, Number 1

52. Norrell FA 10/22, Part 2


Volume 6, Number 2

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53. Blish Lock, The Thompson Submachine Gun's Bronze Heart


Volume 6, Number 3
54. Gyrojets Part 2
Volume 6, Number 4
55.Gyrojet Recollections of Tim Bixler
Volume 6, Number 4
56. The American 180
Volume 6, Number 5
57. Norrell 10/22 v. AM180
Volume 6, Number 6
58. Subguns of the Winter War
Volume 6, Number 8
59. Suomi M31 Competition Conversion
Volume 6, Number 8
60. 2002 Indiana Submachine Gun Championship
Volume 6, Number 9
61. Model L Pistol/Rifle Combo
Volume 6, Number 9
62.

Suppressors and Muzzle Thread Adapters


Volume 6, Number 10

63. Hugo Borchardt & the Origins of the Submachine Gun


Volume 7, Number 2
64. The Machine gun Princess
Volume 7, Number 2
65. Full-Auto Lugers
Volume 7, Number 3

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66. MP 18,1 Part One


Volume 7, Number 4
67. MP18,I Part Two
Volume 7, Number 5
68. MP28,II
Volume 7, Number 6
69. ERMAEMP
Volume 7, Number 7
70. Steyr Sl-100
Volume 7, Number 8
71. Bergmann MP34 & MP3 5
Volume 7, Number 9
72. Pederson Device
Volume 7, Number 9
73. ERMA MP38 & MP40
Volume 7, Number 10
74. Die Sclmellfeuerpistol Mauser
Volume 7, Number 11
75. Auto Ordnance West Hurley C Drums, Making Them Work
Volume 7, Number 11
76. Ruger AC556
Volume 7, Number 12
77. Mauser C96 & Schnellfeuer Disassembly
Volume 7, Number 12
78. MP41, The Real Schmeisser
Volume 8, Number 1

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fnem fhe land.BewnUnda


80. Carbine Williams, Part I. The Man, The Myth, The Rifle
Volume 8, Number I
81. German PPSh41, MP717(r)
Volume 8, Number 2
82. TZ-45, Subgun With a Safety First
Volume 8, Number 2
83. MP3008 Volksmaschinepistole
Volume 8, Number 3
83. Carbine Williams Part Two
Volume 8, Number 3
84. Cheap Shots
Volume 8, Number 3

85. Chinese Thompson


Volume 8, Number 4
86. Origins of MI Carbine, Another Perspective
Volume 8, Number 5

88.
Volume 8, Number 5
89. Greasegun, Part One
Volume 8, Number 6
90. Greasegun Part two
Volume 8, Number 7

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91. Indiana Reenactor Subgun Match


Volume 8, Number 7
92. The Forward Firing Aircraft Machine Guns Of the Great War
Volume 8, Number 7
93. Silenced .22LR Daisy BB Gun
Volume 8, Number 8
94. Williams Model 7 Machine Gun
Volume 8, Number 9
95. The Guns of Max Atchisson
Volume 8, Number 9
96. The LEL-1 Light Weight .22 Belt Fed Submachine Gun
Volume 8, Number 10
97. TASK Slow Fire 76/45
Volume 8, Number 10
99. Stamped Sheet Metal Receiver Sten MKII
Volume 8, Number 11
100 ..22LR Machine Gun Buyer' Guide
Volume 8, Number 11
101. New Generations of Subguns
Volume 8, Number 12
102. M 11 Hardened Parts
Volume 8, Number 12
103. Dardick Pistol
Volume 8, Number 12
I 04. Spring 2005 KCR Sub gun Match
Volume 9, Number 2

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105. SO-round Magazine Modification


Volume 9, Number 2
106. Beistigui Hermanos Machine Pistol
Volume 9, Number 3
107. J& R Customs Suppressed Takedown Rifle
Volume 9, Number 4
108. Astra 900 Machine Pistol. Part 1
Volume 9, Number 4
109. Astra 900 Machine Pistol, Part 2
Volume 9, Number 5
110. 2005 Indiana Subgun Championship
Volume 9, Number 5
111. Smith/Suomi Ml 1
Volume 9, Number 5
112. MAS 35 & 38, Children of the Pederson Device
Volume 9, Number 6
113. Czech ZK3 83
Volume 9, Number 6
114. LUSA USA
Volume 9, Number 7
115. Bowling Ball Mortar Championship
Volume 9, Number 8
113. Old magazines and Old Ammo
Volume 9, Number 8
115. Tactical Innovation's 10/22 Magazine
Volume 9, Number 10

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116. Blish Lock Mystery Revealed


Volume 9, Number 10
117. Build Your Own Slow Fire Ml I
Volume 9, Number 10
118. MPS v MP40
Volume 9, Number 11
119. Charlton Full-Auto SMLE Rifle
Volume 9, Number 11
120. Bringing a Knife to a Gunfight, Submachine Guns With Bayonets
Volume 9, Number 11
121. Sidewinder Submachine Gun
Volume 9, Number 11
122. Owen Gun, The Upside-down Subgun from the Land Down Under
Volume 9, Number 12
123. Policarpa 22-2, Double trouble, Double Barrel Machine Gun
Volume 9, Number 12
124. Sten Magazine-Spring Solutions
Volume 10, Number 2
125. Luigi Franchi LF-57
Volume 10, Number 2
126. Calico MAC
Volume 10, Number 2
127. 1911Al Pistol in 7.62x25mm
Volume 10, Number 3
128. Full Auto Reising Model 65
Volume 10, Number 4

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129. Volume 10, Number 5


C& S Krinker Plinker
130. Volume 10, Number 6
Maximizing a .22LR suppressed Rifle
131. Volume 10, Number 6
2006 Indiana SMG Championship
132. Volume 10, Number 6
Closed Bolt Full Auto Uzi Conversion
133. Volume 10, Number 8
STG-76 Submachine Gun
134. Volume 10, Number 9
Lage Max-11
135. Volume 10, Number 9
Useful Accessories for .22LR Thompsons
136. Ingram Models 5 and 6
Volume 10, Number 9
137. Japanese Light Machine Guns
Volume 10, Number 9
138. No Guess Sight Adjustments
Volume 10, Number 11
139. Ingram M6, M7, MS, M9 & M20
Volume 10, Number 11
140. Stoney Creek Armory Ml 1
Volume 10, Number 12
141. Unique MP-2 Machine Pistol
Volume 10, Number 12

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142. 9x23mm Steyr MP34(o)


Volume 11, Number 1
142. lap Type 99 7.62x39mm Conversion
Volume 11, Number 2
143. Subgun Arcade, Spring KCR
Volume 11, Number 2
144. Iwo Jima Captured Type 99 LMG
Volume 11, Number 3
145. Forensic Sciences 22-2
Volume 11, Number 3
146. Making an Ingram M6 Magazine from a Thompson magazine
Volume 11, Number 4
147. Ant Hill Range .22LR Subgun Match
Volume 11, Number 5
148. Heinemann Submachine Gun
Volume 11, Number 6
149. The Orita Submachine Gun
Volume 11, Number 6
150. The STG Thompson MIA
Volume 11, Number 8
151. Father/Daughter team Sweeps Knob Creek SMG Match
Volume 11, Number 8
151. Suppressed . l 7HMR
Volume 11, Number 10
152. Shotgun Suppressor
Volume 11, Number 11

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153. Chinese Type 56 LMG


Volume 11, Number 12
Stories in Machine Gun News
1. TWENTY TUZI
Volume 6, Number 4
2. J.D. FARMER'S AK-22
Volume 7, Number 6
3. BUILDING A COMPETITIVE SUBGUN ON A BUDGET
Volume 7, Number 10
4. OLD NECK BB TOMMYGUN
Volume 8, Number 3
5. TOMMYGUN UPDATE
Volume 8, Number 5
6. THE ULTIMATE Ml 1
Volume 8, Number 9
7. THE FURR ARMS GATLING
Volume 8, Number 11
8. PRESERVATION AND REPAIR OF HIGH CAPACITY MAGAZINES
Volume 8, Number 11
9. THE KARL GUSTAV M45B
Volume 9, Number 1
10. THE RUGER AC-556
Volume 9, Number 3
11. HOME SECURITY & VAULT CONSTRUCTION (Robert Hoehl)
Volume 9, Number 3
12. SMOOT BOLT LOCKING DEVICE

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Volume 9, Number 3
13. GATLING REPLY
Volume 9, Number 3
14. RUGER/NORRELL/MG-42
Volume 9, Number 4
15. The World's Smallest Machine guns
Volume 9, Number 5

16. THE BETA C MAGAZINE


Volume 9, Number 6
17. THE AMERICAN 180
Volume 9, Number 7
18. BATF MAGAZINE LEITER/STORY
Volume 9, number 8
19. THE OWENSBY SOLUTION
Volume 9, Number 8
20. EASY GUN AND SUPPRESOR CLEANING
Volume 9, Number 11
21. SUPPRESSED .22LR VOERE MACHINE GUN
Volume 10, Number I
22 .. 300 WHISPER or SUBSONIC .308
Volume 10, # 5
23. A Five Speed Ml6
Volume 10, #6
24. Ml6 Vs. MP5
Volume 10, # 7
25. 1997 NFA Nationals
Volume 10, Number 7

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BLANK AS
ORIGINAL

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RIF

Analysis of the ATF Testing of Historic Arms LLC


54RCCS Caliber Conversion Unit.
This report is an evaluation of ATF test of Historic Arms LLC 54RCCS
caliber conversion unit that was performed on June 10, 2009 at the Coweta
county sheriff's range. The ATF provided video documentation of a previous test
conducted on April 15, 2009 on the Historic Arms LLC 54RCCS caliber
conversion unit. Subsequent comparative testing of similar units were performed
at Historic Arms LLC shop in Franklin Georgia.

Terms and definitions used in this report:


Machinegun-

Registered ReceiverUpper Receiver-

Lower receiverControlled fire-

Uncontrolled fire-

A firearm that can fire more than one round of


ammunition with a single function of the trigger
or actuating device.
The registered/restricted component of a
firearm as determined by the ATF
The upper portion of a firearm usually
containing the barrel, bolt, bolt carrier and
recoil device.
The lower portion of a firearm usually
containing the fire control parts and handgrip.
The person operating a firearm can start and/or
stop the firearm from firing with a function of
the trigger or actuating device.
The person operating a firearm cannot stop the
firing sequence and the firearm will continue to
fire until all ammunition is exhausted or the
firearm malfunctions.

Testing and Evaluation at Coweta Range:


The ATF tested the Historic Arms 54RCCS caliber conversion unit for the
MAC 10 family of registered machineguns (referred to as "the unit") to determine
under what classification the unit would be assigned. The assigned
classifications are a firearm accessory, a firearm or a machinegun.
ATF demonstrated their test as shown on video. The test included placing
an aluminum plate over the open rear of the unit. The plate was held in place
with a section of chain wrapped around the unit longitudinally (see attached
photo). A tensioning bolt was used to hold the plate and chain in place (see
attached photos 1 through 5). The unit with the plate, chain and tensioning bolt
were held against a set of sandbags when fired. No lower receiver (MAC
machinegun) or fire control parts were included in the test procedure. The unit
was loaded with a belt of 5 rounds of Wolf ammunition. In the absence of a
trigger or fire control parts, the charging handle was retracted and released. The
unit fired all 5 rounds in an uncontrolled fashion.

1125

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After the ATF test fired the unit, a hole, approximately 1 inch in diameter
was noted in one of the sandbags directly under the unit. The nature of the hole
indicated that it was the result of escaping high velocity gasses through an
opening in the bottom of the unit.
Considering the nature of the assembled parts (aluminum plate, chain and
tensioning bolt) with the unit, it appears that in this test form, the unit can only be
fired while held against the sandbags or held with some other anchorage device.
This anchorage device substitutes for a normal handhold position. Without this
additional element (the sandbags), the unit could not have been fired without a
high potential of injury to the person operating the unit from the escaping high
velocity gasses Therefore the sandbags need to be considered a part of the test.
Following the ATF's demonstration of their test, Mr. Savage proceeded to
test fire the unit.
The first test conducted by Mr. Savage was an attempt to fire the unit with
no additional parts or lower receiver attached. A loaded belt of ammunition was
loaded into the unit. Mr. Savage pulled the charging handle rearward and
released it in the same fashion as the ATF's test. Without the ATF's attached
parts, the bolt stayed in the rearward position. The unit did not chamber or fire.
Without the aluminum plate retaining the recoil rod, the unit cannot chamber or
fire. This demonstrated the unit is unable to fire without some degree of
modification or addition of parts.
Mr. Savage then test fired the unit in its intended configuration, with a
registered MAC 10 lower receiver. The unit chambered and fired as intended in a
controlled fashion, or controlled fire.
Following the demonstrated test procedure by the ATF and Len Savage,
the unit was dismantled and compared to a sample PKM machinegun, (provided
by the ATF) and a semi automatic PKM receiver (provided by (b) (6)
Bases on the dimensions of the bolt rails, recesses in the bolt for the larger rails,
bolt dimensions and barrel of the Historic Arms unit, compared to the two sample
firearms, (the Full auto PKM and Semi auto PKM) it was evident the unit was
originally manufactured from a semi automatic firearm receiver (the Semi auto
PKM}. The fully automatic internal parts of the PKM machinegun could not be
substituted into the Historic Arms unit without substantial machining or alteration
to the full automatic internal parts or the Historic Arms unit.

Testing and Evaluation at Historic Arms LLC Shop:


Six individual comparative tests were performed at Historic Arms LLC
shop following the testing and evaluation at the Coweta Range. Several of the
tests utilized the components of the ATF test (aluminum plate, section of chain
and a tensioning bolt).
The standard MAC 10 upper is the control unit for the testing process The
ATF considers the MAC 10 upper machinegun receiver to be a firearm part and
not a firearm or machinegun in and of itself. Under the Test Finding section of

1126

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this report, see a further discussion of the purpose of a control unit and control
testing.
The first test conducted used a MAC 10 upper receiver for a registered
machinegun attached to a semi automatic lower receiver. The fire control parts of
the semi automatic lower were removed for this test. This was to compare a
previous test of the unit (Historic Arms 54RCCS) conducted by the ATF on April
15, 2009. That particular test performed by the ATF involved attaching the unit to
a registered MAC 10 lower machinegun receiver with the fire control parts
removed . A magazine was loaded with 3 rounds of ammunition; the bolt was
pulled to the rearward position and released . The upper fired 2 consecutive
rounds in an uncontrolled fashion. It chambered the third round without firing.
The second test conducted at Historic Arms shop was similar to the first test. The
control MAC 1O upper machinegun receiver was attached to a semi automatic
lower receiver with the fire control parts installed. A magazine was loaded with 3
rounds of ammunition; the bolt was pulled to the reward position and released .
The upper fired 3 consecutive rounds in an uncontrolled fashion.
The third test conducted at Historic arms shop utilized the control MAC 10 upper
machinegun receiver with the parts from the ATF test performed at the Coweta
Range attached in the same fashion. The aluminum plate was placed over the
open rear of the receiver. The section of chain was wrapped around the receiver
to hold the plate in place and the tensioning bolt was tightened to secure the
chain and plate in place. One round of ammunition was loaded into the chamber
and the bolt pulled to the rearward position and released . The upper fired the
single round of ammunition.
It should be noted the first attempt at this test failed to function due to the
bolt locking mechanism being in the locked position.
The fourth test conducted at Historic Arms shop utilized the ATF's parts
from the test conducted at the Coweta Range attached to a Flemming 22 Rim
Fire Caliber Conversion Device. This is a replacement upper receiver that allows
the MAC 10 registered machinegun to fire 22 rim fire ammunition. The feed
device is attached to the upper receiver similar to the Historic Arms unit. Per the
ATF, this is a firearm accessory and not a firearm or machinegun and is widely
available on the commercial market. The aluminum plate was placed over the
open rear of the receiver. The section of chain was wrapped around the receiver
to hold the plat in place. The tensioning bolt was tightened to secure the chain
and plate in place. A magazine was loaded with 3 rounds of ammunition; the bolt
was pulled to the rearward position and released. The upper fired 3 consecutive
rounds in an uncontrolled fashion
The fifth test conducted at Historic Arms shop was a duplication of the
fourth test using a magazine loaded with 22 rounds of ammunition. The receiver
fired 1 round and jammed on the first attempt. On the second attempt the upper
discharged 21 consecutive rounds in an uncontrolled fashion.
The sixth test conducted at Historic Arms shop involved the use of the
control MAC 10 upper and an Uzi machine gun upper with no additional parts
added. Neither upper had their respective lower receivers or fire control parts

1127

RIF

attached. The control MAC 10 upper was loaded with a single round of
ammunition. The charging handle was pulled to the rearward position and
released . The bolt did not closed and the upper could not fire.
The same test was performed with the sample Uzi upper. When the
charging handle was pulled rearward and released, the upper fired a single
round.
This final test was conducted to demonstrate the difference between the
MAC 10 upper receiver, which the ATF does not consider to be a firearm or
machinegun and an Uzi upper receiver, which the ATF does consider to be a
firearm or machinegun.

Test Findings
Results of the ATF's test conducted on April 15, 2009 when the ATF
attached the Historic Arms unit to a registered MAC 10 lower receiver, with the
fire control parts removed, was not compared to a control sample. When this test
procedure is compared to a control sample (repeat the test using an unmodified
MAC 10 machinegun upper receiver classified as NOT being a firearm or
machinegun), the Historic Arms unit functions in the same exact fashion as the
control upper.
Per accepted scientific and engineering practices as
published by ASTM (American Society of Testing Materials),
ASME (American Society of Mechanical Engineers), and per
publications such as Engineering Reference Manual by Lindeburg,
gh edition or numerous other scientific and engineering
publications, a basic necessity of any testing procedure is to
compare to a control test for validation of results. Without control
testing to validate findings, the testing procedures are considered
invalid and the results irrelevant.
This particular test, when compared to the control unit, demonstrates the
Historic Arms unit functions in the same manner as the accepted control unit,
which is classified as NOT being a firearm or machinegun. Considering both
units fired in an uncontrolled fashion, this test appears to have little or no merit in
determining the classification of the Historic Arms unit. In both cases the lower
receiver contains the recoil rod , allowing the upper to cycle and fire. At best this
test demonstrates the functional similarities between the accepted control unit
(MAC 1O machinegun upper) and the Historic Arms unit.
The tests performed by Mr. savage, when no additional parts or lower
receiver were added to the Historic Arms unit or the accepted MAC 1O upper
(control unit), further demonstrates the functional similarities between the
accepted control unit and the Historic Arms unit. Neither unit could chamber,
cycle or fire without the addition of parts.
Evaluating the ATF's test of the Historic Arms unit with the applied parts
(aluminum plate, section of chain, tensioning bolt and sandbags) produced

1128

RIF

similar results as the test utilizing a registered lower receiver with the fire control
parts removed. The control unit discharged a single round. However it is NOT
considered to be a firearm by the ATF. The Historic Arms unit discharged all
available ammunition in an uncontrolled fashion.
The applied function of the added parts for ATF's test show the parts
duplicate the function of the registered receiver with the fire control parts
removed. The aluminum plate duplicated the rear section of a registered receiver
by capturing the recoil in the operating rod. The section of chain secures the
aluminum plate in the same manner the side rails of a registered receiver secure
the rear plate. The tensioning bolt attaches the chain (via tightening against the
forward gas piston) to the unit in the same way the forward trunion (attachment
point between the upper and lower receivers) attaches the registered lower to the
unit. The sandbags create a hold position to substitute for the registered lower
receiver handgrip. In duplicating the function of a registered receiver, the test
was expected to duplicate the results of using a registered receiver with the fire
control parts removed. The test did produce the anticipated results. The function
of the registered receiver was duplicated.
This point is further demonstrated when the exact same testing procedure
was performed on the Fleming Caliber Conversion Device. The Fleming Caliber
Conversion device is NOT considered to be a machinegun or a firearm by the
ATF and can also be considered a control unit (see attached Fleming
Classification Letter). When the test was performed, the Fleming unit fired in an
uncontrolled fashion repeatedly.
Further evaluation of the ATF's test of Historic Arms unit brings into
question the validity of adding common parts to the caliber conversion system.
The primary question being, do the added parts constitute a conversion device to
induce full automatic fire in and of themselves? In recent rulings by the ATF, the
addition of a simple shoe string to a title one firearm (a conventional semi
automatic firearm) constitutes a conversion device to induce full automatic fire
(see attached shoe string classification letters). It would stand to reason that a far
more complicated system of added parts would also be considered a conversion
device as outline in ATF's Policy Clarification Document CC-43,723 FE:JBP (see
attached ATF Policy Clarification Document). Based on preliminary review, this
collection of parts applied in the same or similar fashion would induce full
automatic fire on a number of caliber conversion devices such as the Stoney
Creek Soumi upper, the Anthony Smith Soumi upper, Lage upper. Based on the
generic versatility of the collection of parts, it is most likely adaptable to a large
number of title one firearms. No comparison to title one firearms were conducted
as this was deemed outside the scope of this evaluation.
It is this engineers opinion that if the ATF does not consider this
combination of parts (aluminum plate, section of chain, tensioning bolt and
sandbags) applied in this fashion to be a conversion device, that it is highly
probable numerous individuals will attempt the same conversion on a number of
firearms or caliber conversion devices with the assertion (correct or otherwise)
the act of doing so is not unlawful based on ATF's consideration here.

1129

RIF

Conclusion:
The tests performed by the ATF at the Coweta Range on June 10, 2009,
and the test previously performed by the ATF on April 15, 2009 along with the
tests conducted at Historic Arms shop demonstrate the Historic Arms LLC
54RCCS caliber conversion unit functions in the same manner as the standard
MAC 10 upper (control unit). The tests also demonstrate the Historic Arms Unit
functions in the same manner as other commercially available caliber conversion
units. The collection of part added to the Historic Arms Unit constitutes a
conversion device (as defined in ATF Policy Clarification Letter CC-43,723
FE:JBP and ATF ruling letters on the attachment of shoestring to a firearm)
intended to induce full automatic fire. Based on the comparative results of these
tests, the Historic Arms 54RCCS Caliber Conversion Unit is NOT a firearm or
machinegun in and of itself. The tests as they were performed demonstrates the
Historic Arms unit performs and functions in an identical fashion to ATF's
accepted MAC 10 upper receiver (control unit) as well as other commercially
available caliber conversion units.

(b) (6)

P.E.

Johnson, Mlrmlran & Thompson, Inc.


"An Employee Owned Company"
(b) (6)
Associate

, P.E.; C.B.S.L

220 Charles Way, Suite 200


York, PA 17402
P. (b) (6)
t=. 717-741-9100
M. (b) (6)
mailto(b) (6)

1130

RIP

Photo 1- Right side of Historic Arms unit with added parts

Photo 2- rear of Historic Arms unit with added parts

1131

RIF

Photo 3- Left side of Historic Arms unit with added parts

Photo 4- Historic Arms unit with chain wrapped around the forward grip

1132

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Photo 5- front view of Historic Arms unit with added parts

Photo 6- Full auto bolt on left and Historic Arms bolt on right

1133

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DEPARTMENT OF THE TREASURY


9URAU OF ALCOHOL. TODAC:C:O AND FIREARMS
WASHINGTON, D . C. 20225

LE:F:TE:EMO
3311.4

MAY 111993

., .

Kr. William ff, .Fleming


Fleming F.irearms, Inc.
7720 East 126 Street North
Collin~ville, Okl/lhOJUt
74021

...

Dear Mr. Flemihg:


This retar5 to your letter of April 29 , 1993 , with
vhich you submitted a sub caliber conversion kit
desi~ed to be ~sed ~ith SWO Mll/Nine subinac~Jneguns.

...
\. l"l )

B~amination

of the sutn.itted sample, no aerial n~er,


indicates that it is a sheet metal upper receiver, . 22
ri.fire caliber barrel, and .22 ri111fire caliber bolt. ~
These co111ponent11 are designed to replace the 9,. .
:, .
. calieer upper receiver and bolt assel'llbly on the
, ...... ~f..!
ft11/Nine sublllachinegun. The eub caliber assembly,
- ~
~ . ;xilfi.
designated Mll-22, is designed to function only in open
' '~.{~
bolt tirin9 M11/Nine sul:>aachineguns. The underside cf
.
, ~'='",
the asaebly baa no cutouta to permit use 111 a cl?~
:.:_.,,:_~~
bolt, hllJllller fired Hll/9 firearm .
:
.1:'fj/;"''i>t;:lt\o.1:

:>

~' v-r.~'ii~~

Bu1ed on the above exa11ination, the aubaittad..Kll-22 (, ::~~~~.1


sub calieer converaion kit is classified aa nb!: beJ.ng a l !'~ j :t-k~l
firearm as that term is defined in Title '18 lJ. $.C.'
; ...~~';.'11.:.'~~~~oiChaptar 44, or Title.)16 U: s.c, Chaptltr, S~ .
. ,'
't , .;~~~;.t!.:.
,_
.,.
" .......
Plea be advised that this det8llllinat1on is .baaed on
' ~'. ,
~~~
the saaple as 11ubmitted, If the dealgn, dimel'lsions;
ilil 4
aatrial used or configuration is changed, tbis
,
~~
claa11ification is subject to review.

.' :.. ~

.P: }

The aUbllitted aupla is being returned under Hparate


cover.

''.. .........
~ (#. ~.::.~~~
'~ ...~~ ...l w;rr,

. ..;.,,..
,1~-

:\;

. ......

We trust that the fo'regoing has been repoiusive to your ~ ~ "' '=
,,, t i.:~'--:>,,.,~
in~iry.
If we may be ct any further a~iatance ;! .-,.,
t.... i: .,!'i;;:<~~~
plaa11a contact us:

-:,'r ,-t", ~ ~ l

Sincerely your-a,

t:. IJ

11 tin

fl1

Te~hnoloqy

1134

.. . . . , . ..

'..;('

. .,!'I!
~

0_ ,. . . . ...

~{fJ.~ --. ~Chief, Firear

Branch

RIF

'
(OCR convu rsion with cleanup of letter Obtained via FOIA.l

(Redactions are iu the original a:s provided in respons e to the FOIA dem.111d .]

BUREAU

DEPARTJ.IENT OF THE TREASURY


OF ALCOHOL, TOBACCO AND FIREARMS
WASHINGTON, DC 20226

(symbols

redact~d]

J UL 23 1996

Nilt'lle Redacted)
Address Redacted]
City, ST Zip Redacted]

Dear [Redacted)
This is in res~nse to your letter of recent date, to
the Bureau of Alcollol , Tobacco and f irearms (ATF) . In
your letter , you request classi ficatiun of a device
which you have designed to viork on your semiautomatic
firearms . You have also submitted a sample of the
device for our examination.

Title 18 united states code (U.s.c.), chapter 44,


922(0), makes it unlawful for any person to possess,
transfer or manufacturer [ sic] a machinegun 'l'1hich was not
register ed in accor dance with the provisions of the
National Fireorms Act (NFA) prior to May 19. 1986.
As defined in Title 26 u. s . c . , chapter 53. 5845(h),
of the NFA, the term "machincgun" means any '11' eapon
which shoots. is designed to shoot, or can be readily
restored to shoot automatically more than one shot,
without manual reloading, by a single function of the
trig~er . The term shall also incluae the frame or
receiver of any such weapon, any part designed and
i ntended solely alld exclusively, or combination of
parts designed and intended, for use in converting a
weapon i nto a macl~inegun, and any compbin~tion of parts
from winch a machinegun can be assembled if suc h parts
are in the possession or under control of a pers on.

The submitted sample is a length of shoe string


[approximately 8 lines of text redacted through the
end of this page]

1135

RIF

-2[ND.file Redacted]

[approximately 7 lines of text redacted at the top of


this page]
ATF has previously examined similar devices and
detemille<l that they are auxiliary nigger mechanisms
which are designed and intended for use in c;onvertin9 a
semiautomatic rifle illto a machinegun: therefore, they
are rnachi ne9u11s as defined in 5845(1>). Based upon
our examillatioll of the submitted device and the
information you provided, it is our opinion that the
sarnple device is also an auxiliary trig9er mechanism
and a .,machinegun., as defined in the t:h1rd paragraph of
this letter.

It is unlawful for anyone to make, possess, or transfer


a rnachi negun which is not registered in accordance ..,,, th
the provisions of the NFA. si nee 'J'1e are unable to

establish that the submitted sample Y1as manufactured


and transferred in accordance the provisions of the NFA
and~ 922(0), we are unable to return it to you, as
submitted. llOY.ever, we can return your shoe string
without the loops .

The shoe s tri n.g which you subrni tted (1 ess the 1 oops) is
beit~ r-eturned under separate c:over.

regret that WI? ar e una!Jle to respond more favorably


at the 1>res1mt tirre. If you have further ques tions
concerni tl{) this rr:atter. pl ease contact us.

'Ile

Si nee re 1y you rs,


[Signature of official Redacted]
[Name of official Redacted]
Chief, Firearms Technology Branch

1136

RIF

.s. n~p:trlml.'nl nf Justic:c

llurc:"u Jf Alcohol. Toh.lllO


1-1 rc.1rm:- and l : llplo>I \'c~

SEP 3 0 2004
903050 (b) (6)
331111004-379

(b)(3) - 26 U.S.C. 6103

Deur

(b)(3) - 26 U.S.C. 6103

This rcrcrs 10 ynur letter QfFebruary (1. 200.J. lo the Bureau of Alcohol, Tobacco, F1rcnnns n111l
Explomcs IATF), fircanns Tcchnolog)' Branch (FTB), in "Inch you mqum:tl about the legaht>
of u small secuon of strini: mlcnded for use as a mt:ans for incri:asing the cycling rate of a
scrmuutomatic nflc:.
As you may be aware, the Nauonnl Firc:imu Act, '.!6 U.S C. 58.J5(b), defines "machim:gun" tu
mclu.lc the following:
nn)' \\capon 1hnl ohuol~. 11 Jc~1gncd 10 shoo!, or con be rc:oJily rcs1orcd lo shoot, nulnmnucully mon:
lli:in one shot, wtthout m:iniul reloading by o single function 11f1hc 1n~gcr l11is tcnn sholl also include
the fr~mc or n:ccl\~r of :in)' such wcap<m, any part dcsli:neti 11n1l ln1cnllcti solely und ud11hcly, nr
comhl1111don of parts designed 1111d hllcnJcd, for u~ h1 comcrllni: a \\tllpon Into a machlnci:u11, and
nny combtnahon parts from which a michmegun can be usscmbkd r such 1>3ns :ire m the posscsS1on
ot untlc:r 1hc coorrol of o JICTSOn [bnldmg addcdf

or

In I 996. FTB examined ;ind cl;issificd a 14-inch long shoestring \\ilh a loop 111 each end The
string was atlllchcd 10 the cockmg handle o( a scmiautom;itic rifle and was looped around 1hc
trigger and nllachcd to the shooter's linger Titc dt:\'ICC caused the \\capon to tire rcpe:ilcdly
until lin1:1cr pressure: was rcknscd from 1hc string. Bt.'C:iusc: this itc:m \\ u.s designed nnd mlcndcd
to con\crt u scmmut0111:itic rifle into a m;ichincgun, FTB dctcrmmcd 1h:it 11\\a.~a11111chlnc:~tin
as dcfim:tl tn 26 U.S.C. S845(b).

\\'c thnnk you for your m4uiry. regret the del~y m response, and trust the foregoing has been
rcspons1\c.

Sirn:crcly yours,

s:~/
Sterling Lon
Chief, Fircann5 Tc:chnology Branch

1137

RIP

Pnge 1 of!
CtPARTHENT OF THt TREASURY
Bureau o! Alcohol , Tobacco and Fi rear=s
W3shi~;ton, o . c . 20226
JUN i 191 4
cc-~J.12J

n::JllP

HtMOiUINOUll TO: Special h;ent in Char9e


Detroit rield Division
na!:

Associa:e Chief C~unsel


(F1raanas And txploalves l

SUllJCT:

Policy

Clari!ic~tion

This is in re,ponae to y()\ll

reque~t

-- Conversion Kits
!or an o p1nion whether a

chine converaion kit ia a "tlrea.,. tor purposfts of th~ CUn


Cor.trol Act o! 1969 (CCA) , 18 U s.c. Chapter 44. You advise that
this opinion i s sou9ht by the United States District t our: !er the
eastern Distric t o! Michigan.
For purposes of the G:A, the te""' "fi rear111 is dc!lned in l i
oect1on 921 (1 (3) to :aean:

u.s.c.

!Al any weapon lincludin9 a starter 9un) which wi11 or is


ditsiqnad to or ~Y readily be converted to expel a projectile
by the action oC an explolve; ( Bl the !r&111e or receive: o:
any uch waapon; (Cl any !l:aai:o Qu(!ler or !lreana silencer;
or (DI any destruc:ive de~!ce
Hachina;un convera1on kit are not a::ong the it~ da!!r.ed aa
!irea:a:s by sacti~n 921(aJl J l . Therefo:e, ~china gun conversion
k!ta o:e not su~'ect to requlat!cn 11 !1rear:a.s under :he Ge~. Fa=
exa:ople. e person an;a;ed in the busineaa o! de1lin9 only in 1uch
cite wculd not be req-~!:ad to obtain a l!cense aa a de1le: 1n
!!raari::s under :he GCA. Alao, a peraor. wbo transferred a
aochinegun conversion kit to o !elo= or other pc=aon prohibited
!roe recei~ln; or pooc~oin; !lroarna would not violate 19 u.s.c.
1ection 922(d), nor would thn prohil>ited peraon's receipt or
posseasion o! the kl: violate 18 U.S.C. 1ection 922 (9) .
- 2 -

Special llqent in Charge


Datroit Fiotd Divialon
Koveer, 11achino9ur. co~veraion kits are within the de!lni tion cf
.uachlne;un tor pi::poata o! tho GC1. ~nd a:e, therefore, subject to
all GCA controls impo1ad upon ruchine;una. ior GCA purpoaoa, the
definition of "ruchine;un in 11 u.s.c. eectic;>n 921 (al (231
incorporate the definition o! such teno in the National rirean:.
Act, 26 u.s.c. 1acc1on S94S(b!. A de!!nad by saction 584Slbl,
M:a.achinegun~ =ne, as:1on9 o:her tb!n9a, any . . ca=lib!~a~ic~ o!
~rts deaiqned &nd 1ntanded, to: ue ln convertinq wepon into &
aachir.cqun, i . e., ~achlr.equn conversion kit. Thu1, unde~ the
GCA, ~chine;u~ ccnvers1on kit ia, !o~ exat:pl e, a m.achin;u~
aul>Ject to tho prohi~l:ion with rea;>ect to possession &n~ trans!er
o! r.:achine9uns ln 18 u.s.c. aection 922(ol 4nd tho prohibition in
!I u.s. c . section ta! 141 aqainst transporting machine9uns
interstate vithouc the approval ot the Secretary ot the Treaaury.

~ac k

(sl9nedJ
8. Pattecaon

hnp//www.cs.cmu.cdufafs/csluser/wbarowcUpublic/nfBlist/11tf_lcttcr37.txt

1138

6/18/2009

RIF

(b) (6)
Ph_one: (b) (6)

Concentration:
Research and design conversion systems that allow legal semiautomatic firearms to be
constructed from machinegun "parts" kits. Reverse engineer firearm components to
produce manufacturing drawings.

Performed research and development for the following licensed firearms


manufacturers:
Century International Arms, Georgia, VT
Historic Arms LLC, Franklin, GA
Rapid Fire LLC, Troy, OH

Designed semiautomatic Fire Control Groups for the following firearms:


British Vickers .303 Inch Medium Machinegun
Czech vz58 Assault Rifle
German MG 15 Machinegun
German MG42 Machinegun
A) Using Belgian FN-FAL Fire Control Group components
B) Using USA AR-15 Fire Control Group components
German I Romanian ST-61 Machinegun
Soviet DP28 Machinegun
Soviet RPO Machinegun
USA Thompson Sub-machinegun (Models Ml928, Ml, and MlAl)

Reverse engineer the following machinegun Receivers with modifications to allow


semiautomatic firing only:
British Vickers .303 Inch Medium Machinegun
Czech vz58 Assault Rifle
German MG 15 Machinegun
German I Romanian ST-61 Machinegun
Soviet DP28 Machinegun
Soviet RPO Machinegun
Soviet SG-43 Machinegun
Swiss PE-57 Rifle
Swiss AMT Rifle
USA Thompson Sub-machinegun (Models M 1928, M 1, and M 1A1)

1139

RIP

April 2009

Name:

EDWARD J. SHAUGHNESSY, JR.

Rank:

Professor of Mechanical Engineering

Born:

Boston, Massachusetts, 1948

Degrees:

B.E. (Mechanical Engineering)


Manhattan College, 1969
M.S. (Aerospace Engineering)
University of Virginia, 1971
Ph.D. (Aerospace Engineering)
University of Virginia, 1975

Professional Engineer:

North Carolina

Employment:
Assistant Professor of Mechanical Engineering, Duke University, 1975.
Associate Professor of Mechanical Engineering, Duke University, 1979.
Professor of Mechanical Engineering, Duke University, 1985.
Director of Graduate Studies, 1980 - 1983.
Societies:
American Society of Mechanical Engineers
Sigma Xi
Tau Beta Pi
Pi Tau Sigma
Awards:
Duke Endowment Award for Excellence in Teaching, 1979.
Fellow of the American Society of Mechanical Engineers, 1993.
Senior Member of the American Institute of Aeronautics and Astronautics, 1995.
Courses Taught:
ME 126 Fluid Mechanics
ME160 Mechanical Systems Design
ME221 Compressible Fluid Flow
ME226 Intermediate Fluid Mechanics
ME227 Advanced Fluid Mechanics

1140

RIF

Edward J. Shaughnessy, Jr.


Page2
Provisional Patent Applications:
Closed bolt conversion device for the MAC family of open bolt submachine guns 8-2505
External sear link for the MAC family of open bolt machine guns 8-26-05
Modular closed bolt upper receiver mounting adapter for the MAC family of open bolt
submachine guns 8-30-05
Consultant:
Teleco Oilfield Services, Inc .
Medical Private Diagnostic Clinic
Dept. of Radiology, DUMC
Department of Medicine, DUMC
Flow Industries, Inc.
InnovaTech, Inc.
Graduate Research Institute,
Univ. of Arkansas

U.S. Geological Survey


U.S. Environmental Protection Agency
Research Triangle Institute
Advanced Cardiovascular Systems, Inc.
Nello L. Teer Company
Micro Composite Materials Corporation
IEP Group

Reviewer:

J. Fluids Engineering
J. Heat Transfer
Applied Mechanics Review
Numerical Methods in Heat Transfer
Symposium on Turbulence
ASME Air Pollution Control Division
ASME Heat Transfer Division
Annals of Biomedical Engineering
J. Biomechanical Engineering
Physics Letters A

National Science Foundation


U.S. Environmental Protection
Agency
Atmospheric Environment
IEEE Trans. Ind. Appl. Society
The Whitaker Foundation
Experimental Thermal and Fluid
Science
Numerical Heat Transfer
John Wiley & Sons

Research Grants:
Heat Transfer and Flow Between Concentric Rotating Spheres of Unequal Temperature,
2 years, $42,600, National Science Foundation, 1975, Principal Investigator.
Development of a Laser-Doppler Velocimeter for the Measurement of Turbulent Mixing
in Natural Waters, $7000, North Carolina Science and Technology Committee, 1977,
Principal Investigator.
Evaluation of Diode Lasers for Environmental Monitoring, $3800 Royal Scientific
Society, Jordan, 1978, Principal Investigator.

1141

RIF

Edward J. Shaughnessy, Jr.


Page 3
Research Grants Continued:
Measurement of Turbulent Mixing in Geophysical Flows by Laser-Doppler
Anemometry, 2 years, $9000, U.S. Geological Survey, 1979, Principal Investigator.
Relating Flow Structure Within Forest Canopies to Turbulent Exchange With the
Atmosphere, 3 years, $159,500, National Science Foundation, 1980, K.R. Knoerr, School
of Forestry, and E.J. Shaughnessy, Co-Principal Investigators.
Measurement of Vertical Velocity Fluctuations in Geophysical Flows by Laser-Doppler
Anemometry, 2 years, $10,500, U.S. Geological Survey, 1981, Principal Investigator.
Evaluation of a Prototype Deep Well Pump, $33,917, U.S. Geological Survey, 1981,
Principal Investigator.
Relating Flow Structure Within Forest Canopies to Turbulent Exchange With the
Atmosphere, 1 year extension, $67 ,000, National Science Foundation, 1982, K.R.
Knoerr, School of Forestry and E.J. Shaughnessy, Co-Principal Investigators.
Corona Wind and Turbulence in Full Scale Electrostatic Precipitators, 2 years, $180,000,
U.S. Environmental Protection Agency, 1982, Principal Investigator.
Screening Program for Novel Viscoelastic Biopolymers Produced by
Microphotoautotrophs, $271,000, Defense Advance Research Project Agency, 1984,
Joseph Ramus, Duke University Marine Laboratory, Principal Investigator; E.J.
Shaughnessy, Senior Researcher.
Flow Within Deformable Bodies, 1 yr, $16,000, Lord Corporation, 1986, Principal
Investigator.
Coronary Flow Probe, 1 yr, $50,000, Advanced Cardiovascular Systems, Inc., 1986, CoPrincipal Investigator.
Coronary Flow Probe, 6 mo., $38,000, Advanced Cardiovascular Systems, Inc., 1986,
Principal Investigator.
Vascular Diagnostic Systems, 6 mo., $34,895, NSF/ERC., 1988, Principal Investigator.
Vascular Diagnostic Systems, 1 yr., $54,108, NSF/ERC, 1989, Principal Investigator.
Acquisition ofa Workstation, 1 yr., $15,000, Biomedical Research Support Grant, 1989,
Principal Investigator.
Vascular Diagnostic Systems, 1 yr., $54,649, NSF/ERC, 1990, Principal Investigator.
Flow in Coronary Arteries, 1 yr., 50 Cray Y-MP hours@ ($750/hr), North Carolina
Supercomputing Center, 1990, Principal Investigator.

1142

RIF

Edward J. Shaughnessy, Jr.


Page4
Research Grants Continued:
Computational Fluid Dynamics, 1 yr., $52,641, NSF/ERC, 1991, Principal Investigator.
Flow in a 90 degree Bifurcation of a Rigid Tube, 1 yr., 100 Cray Y-MP hours@
($750/hr), North Carolina Supercomputing Center, 1991, Principal Investigator.
Visualization of the Hemodynamics in the Neighborhood of the End to Side Arterial
Graft, 1 yr, 140 Cray Y-MP hours@ ($750/hr}, $7,000 Graduate student support, North
Carolina Supercomputing Center and Cray Research, 1992, Principal Investigator.
Flow in Coronary Arteries, l yr. extension , 50 Cray Y-MP hours@ ($750/hr), North
Carolina Supercomputing Center, 1994, Principal Investigator.
Computational Fluid Dynamics Equipment Support, Micro Composite Materials
Corporation, 1995, 1 yr., $8,000, Principal Investigator.
Computational Fluid Dynamics Equipment Support, Duke University, 1995, 1 yr.,
$8,650, Principal Investigator.
Flow Visualization for MicroFlumes: Integrated Analysis and CAD, Defense Advanced
Research Projects Agency, 1998, 1 yr., $1,305,479, Hugh Crenshaw, David Needham,
E.J. Shaughnessy, Co-Principal Investigators.
Theses and Dissertations Suoervised:
Combined Natural and Forced Thermal Convection in a Rotating Spherical Annulus,
R.W. Douglass, December 1975, Ph.D.
Natural Convection in Low Prandtl Number Fluids Within a Horizontal Cylindrical
Annulus, J.R. Custer, October 1976, M.S.
A Finite Element Approach to Damped Acoustic Problems, B.J. Stephens, May 1978,
Ph.D.
Spectral Methods for Boundary Value Problems in Heat Transfer, J.T. McMurray,
October 1978, M.S.
Development of a Laser-Doppler Velocimeter for Use in the Aquatic Environment, J.R.
Custer, May 1979, Ph.D.
GaAlAs Diode Lasers for Laser-Doppler Anemometry, F.H. Zu'bi, December 1979, M.S.
Measurement ofNonstationary Turbulent Flow in a Tidal Channel by Laser Doppler
Velocimetry, J.T. McMurray, December 1980, Ph.D.
Electrohydrodynamics, L.D. Flippen, August 1982, Ph.D.

1143

RIF

Edward J. ~haughnessy, Jr.


Page 5
Theses and Dissertations Supervised (Continued)
Turbulence in the Pivers Island Channel, F.H. Zu'bi, December 1982, Ph.D.
Microscale Pressure Fluctuations Within a Deciduous Forest, J. Sigmon, May 1983,
Ph.D. (co-chairman with K. Knoerr).
Electrically Driven Flow in a Needle-Plane Electrode Geometry. G.S. Solomon, July
1983, M.S.
The Measurement of Turbulent Energy Spectra in the Pivers Island Channel, T.G.
Bifano, December 1983, M.S.
The Electric Field and Vorticity Production in a Wire-Plate Precipitator With Uniform
Discharge, J.C. Hay, April 1984, M.S.
The Pressure Distribution in a Gas in Electrohydrostatic Equilibrium, M.K. Weaver, May
1984, M.S.
Secondary Flows and Turbulence in Electrostatic Precipitators, J.H. Davidson, July 1984,
Ph.D.
The Electrohydrodynamics of Real Fluids, D.A. Nelson, October 1984, Ph.D.
Digital Compensation of Thermistor Flowmeters, l.M. Katz, April 1985, M.S.
Design and Analysis of an Implantable Cerebrospinal Fluid Shunt Pump, T.G. Clerkin,
July 1985, M.S.
Flow of a Confined Viscous Fluid Due to Large Amplitude Motion of a Compliant
Boundary, M.K. Weaver, December 1987, Ph.D.
A Constant Temperature Thermistor Anemometer, J.A. Gottwald, December 1987, M.S.
A Lagrangian Description of 1-D Compressible Flow With Heat Addition, D. Mendivil,
April 1988, M.S .
The Numerical Simulation of Compressible Flow in a Lagrangian Particle Description,
I.M. Katz, April 1988, Ph.D.
Computational Simulation of Flow in a Stenosed Tube for the Evaluation of a Magnetic
Resonance Image, E. Reynolds, December 1991, M.S.
Conjugate Natural Convection in Inclined Fractures, James W. Van Gilder, December
1993, M.S.

1144

RIF

Edward J. Shaughnessy, Jr.


Page 6
Theses and Dissertations Supervised (Continued)
Finite Element Simulation of the Hemodynamics in the Neighborhood of the End to Side
Arterial Graft, Robert S. Burrus, Jr., May 1999, Ph.D.
Refereed Publications:
1. E.J. Shaughnessy, The Symmetric Normal Modes in a Rotating Gas. AIAA Paper No.
71-999, 1971.
2. J.B. Morton and E.J. Shaughnessy, Waves in a Gas in Solid-Body Rotation. J. Fluid
Mech. 56(2) pp. 277-286, 1972.
3. E.J. Shaughnessy and J.B. Morton, Laser Light-Scattering Measurements of Particle
Concentration in a Turbulent Jet. J. Fluid Mech. 80, pp. 129-147, 1977.
4. E.J. Shaughnessy and J.B. Morton, Laser Light-Scattering Technique for Measurements
ofTurbulent Mixing. Applied Physics Letters, Vol. 30, No. 1, 1 January, 1977, pp. 1011.
5. J.R. Custer and E.J. Shaughnessy, Thermoconvective Motion of Low Prandtl Number
Fluids Within a Horizontal Cylindrical Annulus. J. Heat Transfer, 99, pp. 596-602, 1977.
6. J.R. Custer and E.J. Shaughnessy, Natural Convection in Liquid Metals in an Enclosure.
J. Heat Transfer, 99, pp. 675-676, 1977.
7. R.W. Douglass, B.R. Munson and E.J. Shaughnessy, Thermal Convection in Rotating
Spherical Annuli Part 1: Forced Convection. Int'l J. Heat and Mass Transfer, Vol. 21,
No. 12, pp. 1543-1553, 1978.
8. R.W. Douglass, B.R. Munson and E.J. Shaughnessy, Thermal Convection in Rotating
Spherical Annuli Part 2: Stratified Flows. Int'l J. Heat and Mass Transfer, Vol. 21, No.
12, pp. 1555-1564, 1978.
9. E.J. Shaughnessy, J.R. Custer and R.W. Douglass, Partial Spectral Expansions for
Problems in Thermal Convection. J. Heat Transfer, 100, pp. 435-441 , 1978.
10. E.J. Shaughnessy and R.W. Douglass, The Effect of Stable Stratification on the Motion
in a Rotating Spherical Annulus, Int'I J. Heat and Mass Transfer, Vol. 21 , No. 9, pp.
1251-1259, 1978.
11 . E.J. Shaughnessy and F.H. Zu'bi, GaAlAs Diode Sources for Laser-Doppler
Anemometry, Applied Physics Letters, Vol. 33, No. 9, 1 November 1978, pp. 835-836.
12. E.J. Shaughnessy and J.T. McMurray, Chebyshev Matrix Methods for the Heat Equation:
Convergence and Accuracy, ASME Paper No. 79HT-62, 1979.

1145

RIF

Edward J. Shaughnessy, Jr.


Page 7
Refereed Publications (Continued)
13. J.T. McMurray and E.J. Shaughnessy, Spectral Methods for Transient Heat Conduction
Problems in Simple Geometries, ASME Paper No. 79HT-61, 1979.
14. R.W. Douglass, E.J. Shaughnessy and B.R. Munson, Small Reynolds Number
Convection in Rotating Spherical Annuli. J. Heat Transfer, Vol. 101, No. 3, pp. 427-433,
1979.
15. J.T. McMurray and E.J. Shaughnessy, Chebyshev Matrix Methods for Two Dimensional
Heat Conduction Problems. Numerical Methods in Heat Transfer, T.M. Shih, ed., pp.
398-418, 1979.
16. P.A. Lawless, A.S. Damle, A.S. Viner, E.J. Shaughnessy and L.E. Sparks, Laser-Doppler
Anemometer Measurements of Particle Velocity in a Laboratory Precipitator.
Proceedings: Third Symposium on the Transfer and Utilization of Particulate Control
Technology, EPA-600-9-82-005b, pp. 25-34, 1982.
17. A.S. Viner, M.B. Ranade, E.J. Shaughnessy, D.C. Drehmel and B.E. Daniels, A Wind
Tunnel for Dust Entrainment Studies. Proceedings: Third Symposium on the Transfer
and Utilization of Particulate Control Technology, EPA-600-9-82-00Sd, pp. 168-178,
1982.
18. J.T. McMurray and E.J. Shaughnessy, Measurements of Turbulence in a Tidal Channel
Using a Laser-Doppler Velocimeter, Engineering Application of Laser Velocimetrv,
Hugh W. Coleman, ed., pp. 171-178, November 1982.
19. J.T. Sigmon, K.R. Knoerr and E.J. Shaughnessy, Microscale Pressure Fluctuations
Within a Deciduous Forest. Boundary-Layer Meteorology, Vol. 27, pp. 345-358, 1983.
20. J.T. Sigmon, K.R. Knoerr and E.J. Shaughnessy, Leaf Emergence and Flow Through
Effects on Mean Windspeed Profiles and Microscale Pressure Fluctuations in a
Deciduous Forest. Agricultural and Forest Meteorology, Vol. 31, pp. 329-337, 1984.
21. J.H. Davidson and E.J. Shaughnessy, Mean Velocity and Turbulent Intensity Profiles in a
Full Scale Laboratory Precipitator. ASME Paper No. 84-JPGC-APC-1, 1984.
22. J.P. Schaffer, E.J. Shaughnessy and P.L. Jones, The Deconvolution of Doppler
Broadened Positron Annihilation Measurements Using Fast Fourier Transfonns and
Power Spectral Analysis. Nuclear Instruments and Methods in Physics Research, BS, pp.
75-79, 1984.
23. J.H. Davidson and E.J. Shaughnessy, Turbulence Generation by Electric Body Forces.
Presented at the Ninth Biennial Symposium on Turbulence, Rolla, October 1984.

1146

RIF

Edward J. Shaughnessy, Jr.


Page 8
Refereed Publications (Continued)
24. E.J. Shaughnessy and T.G. Bifano, Measurements of the Energy Spectrum in a Tidal
Channel Using a Second Generation Submersible Laser-Doppler Anemometer.
Symposium .Q!! Turbulence, X.B. Reed, G .K. Patterson and J .L. Zakin, ed., pp. 282-292,
1984.
25. D.A. Nelson and E.J. Shaughnessy, Electric Field Effects on Natural Convection in
Enclosures. Heat Transfer in Enclosures, R.W. Douglass and A.F. Emery, ed., pp. 13-20,
1984.
26. J.T. Sigmon, K.R. Knoerr and E.J. Shaughnessy, Characteristics of Microscale Pressure
Fluctuations and Their Relationships to Mean Wind Speed and Direction in a Deciduous
Forest. Proceedings of the 17th Conference .Q!! Agriculture and Forest Meteorology,
American Meteorological Society, Boston, Mass., pp. 88-91, 1985.
27. J.H. Davidson and E.J. Shaughnessy, Secondary Flow and Turbulence Generation by
Electric Body Forces, Invited paper, 22nd Annual Meeting of the Society of Engineering
Science, October 7-9, 1985, University Park, PA.
28. E.J. Shaughnessy, J.H. Davidson and J.C. Hay, The Fluid Mechanics of Electrostatic
Precipitators. Aerosol Science and Technology, Vol. 4, No. 4, pp. 471-76, 1985.
29. J.P. Schaffer, E.J. Shaughnessy and P.L. Jones, On the Application of Fast Fourier
Transforms and Power Spectrum Analysis to Incorrectly Posed Fredholm Integral
Equations. Integral Methods in Science and Engineering, F.R. Payne, C.C. Corduneanu,
A. Haji-Sheikh and T. Huang, ed., pp. 74-82, 1986.
30. M.K. Weaver and E.J. Shaughnessy, A Technique for Pressure Measurement in the
Active Electrical Zone of a Wire-Cylinder Electrostatic Precipitator. IEEE Trans. on
Industrial Applications, Vol. lA-22, No. 2, pp. 235-239, 1986.
31. J.H. Davidson and E.J. Shaughnessy, Turbulence Generation by Electric Body Forces.
Experiments in Fluids, Vol. 4, No. 1, pp. 17-26, 1986.
32. D.A. Nelson and E.J. Shaughnessy, Electric Field Effects on Natural convection in
Enclosures. J. Heat Transfer, Vol. 108, No. 4, pp. 749-754, 1986.
33. E.J. Shaughnessy, J.H. Davidson and J.C. Hay, The Fluid Dynamics of Electrostatic
Precipitators: Effects of Electrode Geometry. Proceedings: Fifth Symposium on the
Transfer and Utilization of Particulate Control Technology, Vol. 2, p. 32-1, 1986.
34. J.H. Davidson and E.J. Shaughnessy, An Electrostatic Precipitator Facility for
Turbulence Research. Proceedings: Fifth Symposium .Q!! the Transfer and Utilization of
Particulate Control Technology, Vol. 2, p. 30-1, 1986.

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Edward J. Shaughnessy, Jr.


Page 9
Refereed Publications (Continued)
35. I.M. Katz and E.J. Shaughnessy, Digital Temperature Compensation ofThennistor
Flowmeters. J. Phys. E:Sci. Instrum. Vol. 20, pp. 561-564, 1987.
36. L.D. Flippen and E.J. Shaughnessy, Electrohydrodynamic Generalizations of the JeffreyHamel and Landau Similarity Solutions of Fluid Mechanics. Journal of the Mississippi
Academy of Sciences, vol. 32, pp. 1-18, 1987.
37. M.K. Weaver and E.J. Shaughnessy, An Impeller-Free Agitator for Suspension Culture
of Mammalian Cells. Bioprocess Engineering Colloquium, R.C. Dean, Jr., R.M. Nerem,
ed., p. 3-6, ASME, 1987.
38. I.M. Katz and E.J. Shaughnessy, An Electronically Switched Flowmeter and Temperature
Sensor Employing a Single Thennistor Probe, J. Phys. E: Sci. Instruments, Vol. 21, pp.
108-112, 1988.
39. M.K. Weaver and E.J. Shaughnessy, A Boundary-Condition Treatment for CompliantBoundary Driven Flow, A Collection of Technical Papers: AIAA/ASME/SIAM/APS lfil
National Fluid Dynamics Congress, Part 3, pp. 2078-2085, 1988.
40. J. Ramus, B.E. Kenney and E.J. Shaughnessy, Drag Reducing Properties of Microalgal
Exopolymers, Biotechnology and Bioengineering, Vol. 33, pp. 550-557, 1989.
41. I.M. Katz and E.J. Shaughnessy, Computer Aided Analysis of 1-D Compressible Flow
Problems in a Lagrangian Particle Description Using the a Method, Computers and
Fluids, Vol. 18, No. l, pp. 75-101, 1990.
42. l.M. Katz and E.J. Shaughnessy, The Equations of 1-D Compressible Flow With Area
Change in a Lagrangian Particle Description. Computers and Fluids, Vol. 18, No. 2, pp.
183-190, 1990.
43. E.M. Ohman, S. Helmy, E.J. Shaughnessy, D.B. Adams, and J. Kisslo, In-Vitro Analysis
of Jets by Doppler Colour Flow Imaging: The Importance of Time to Maximum Jet
Area. European Heart Journal, Vol. 11, No. 4, pp. 361-367, 1990.
44. E.J. Shaughnessy and G.S. Solomon, The Electrohydrodynamics of the Point to Plane
Corona Discharge. Aerosol Science and Technology, Vol. 14, No. 2, pp. 193-200, 1991.
45. I.M. Katz, E.J. Shaughnessy, and Z. Zhang, A Method for Calculating the Average Cross
Section Pressure Distribution in Tube Flows Within the Vorticity-Stream Function
Fonnulation. Numerical Heat Transfer, Part B: Fundamentals, Vol. 22, No. 3, pp. 349366, 1992.
46. J.M. Katz, E.J. Shaughnessy, and B.B. Cress. A Technical Problem in the Calculation of
Laminar Flow Near Irregular Surfaces Described by Sampled Geometric Data, Journal of
Biomechanics, Vol. 28, No. 4, pp. 461-464, 1995.

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Edward J. Shaughnessy, Jr.


Page 10
Refereed Publications (Continued)
47. E.J. Shaughnessy and J.W. Van Gilder, Low Rayleigh Number Conjugate Convection in
Straight Inclined Fractures in Rock, Numerical Heat Transfer, Part A, Vol. 28, No. 4, pp.
389-408, 1995.
48. J. H. Bond, E. J. Shaughnessy, and S. R. Wright, Boundary Layer Momentum Transfer
(BMLT) Theory As It Applies to Dynamic Particle Separation, Proceedings of the AFS
Annual National Conference & Expo: Technology Wins- Advances in Filtration and
Separation Technology, Vol.10, pp. 83-88, Valley Forge, PA, April 22,1996.
49. S. R. Wright, J.H. Bond, H. S. Crouch, D. A. Knight, and E. J. Shaughnessy, SelfCleaning, High Efficiency Dynamic Particle Exclusion Filter, Proceedings of the AFS
Annual National Conference & Expo: Technology Wins- Advances in Filtration and
Separation Technology, Vol.10, pp. 68-72, Valley Forge, PA, April 22,1996.
50. Hong Ren, Richard B. Fair, Michael G. Pollock, and Edward. J. Shaughnessy, Dynamics
of Electro-Wetting Droplet Transport, Sensors and Actuators B: Chemical 87 (1) (2002)
pp. 201-206.
51. E. J. Shaughnessy, I. M. Katz, and J.P. Schaffer, Introduction to Fluid Dynamics, Oxford
University Press, 2004.
52. P. Ghadimi, J. D. Knight, and E. J. Shaughnessy, Film Rupture Modelling in TwoDimensional and One-Dimensional Solutions for the Long Journal Bearing, to be
submitted.
Other Publications and Presentations:
1. E.J. Shaughnessy, Adiabatic Waves in a Rotating Gas. Master's Thesis. University of
Virginia, 1971 .
2. E.J. Shaughnessy, The Symmetric Normal Modes in a Rotating Gas. Presented at the
AIAA 8th Annual Meeting and Technical Display, Washington, DC., 1971.
3. E.J. Shaughnessy, Measurement of Particle Diffusion in a Turbulent Jet by Laser LightScattering. Ph.D. Dissertation, University of Virginia, 1974.
4. E.J. Shaughnessy and J.T. McMurray, Chebyshev Matrix Methods for the Heat
Equation: Convergence and Accuracy. Presented at the 18th ASME/AIChE National
Heat Transfer Conference, San Diego, CA, August, 1979.
5. J.T. McMurray and E.J. Shaughnessy, Spectral Methods for Transient Heat Conduction
Problems in Simple Geometries. Presented at the 18th ASME/ AIChE National Heat
Transfer Conference, San Diego, CA, August, 1979.

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Edward J. Shaughnessy, Jr.


Page 11
Other Publications and Presentations (Continued)
6. F.H. Zu'bi and E.J. Shaughnessy, Some Characteristics of a GaAlAs Diode Laser
Anemometer for Measuring Fluid Velocity. Presented at the 1981 Conference on Lasers
and Electro-Optics, Washington, DC, June 10-12, 1981.
7. J.T. McMurray and E.J. Shaughnessy, Measurement of Geophysical Turbulence by
Laser-Doppler Velocimetry. Presented at the 1981 Conference on Lasers and ElectroOptics, Washington, DC, June 10-12, 1981.
8. P.A. Lawless, A.A. Damle, A.S. Viner, E.J. Shaughnessy and L.E. Sparks, Laser-Doppler
Anemometer Measurements of Particle Velocity in a Laboratory Precipitator. Presented
at the IEEE-IAS Annual Meeting, PhiJadelphia, PA, October 1981, Library of Congress
#80-640-527.
9. P.A. Lawless, A.S. Damle, A.S. Viner, E.J. Shaughnessy and L.E. Sparks, Laser-Doppler
Anemometer Measurements of Particle Velocity in a Laboratory Precipitator. Presented
at the Third Symposium on the Transfer and Utilization of Particulate Control
Technology, Orlando, FL, March 1981.
10. A.S. Viner, M.B. Ranade, E.J. Shaughnessy, D.C. Drehmel, and B.E. Daniels, A Wind
Tunnel for Dust Entrainment Studies. Presented at the Third Symposium on the Transfer
and Utilization of Particulate Control Technology, Orlando, FL, March 1981.
11. J.T. McMurray and E.J. Shaughnessy, Measurements of Turbulence in a Tidal Channel
Using a Laser-Doppler Velocimeter. Presented at the Winter Annual Meeting of the
American Society of Mechanical Engineers, Phoenix, AZ, November 14-19, 1982.
12. E.J. Shaughnessy and T.G. Bifano, Measurements of the Energy Spectrum in a Tidal
Channel Using a Second Generation Submersible Laser-Doppler Anemometer.
Presented at the Eight Biennial Symposium on Turbulence, Rolla, MO, September 26-28,
1983.
13. E.J. Shaughnessy, J.H. Davidson, and J.C. Hay, The Fluid Dynamics of Electrostatic
Precipitators: Effects of Electrode Geometry. Presented at the Fifth Symposium on the
Transfer and Utilization of Particulate Control Technology, Kansas City, MO, August
1984.
14. J.H. Davidson and E.J. Shaughnessy, An Electrostatic Precipitator for Turbulence
Research. Presented at the Fifth Symposium on the Transfer and Utilization of
Particulate Control Technology, Kansas City, MO, August 1984.
15. J.H. Davidson and E.J. Shaughnessy, Mean Velocity and Turbulent Intensity Profiles in a
Full Scale Laboratory Precipitator. Presented at the 1984 Joint Power Generation
Conference, Toronto, October 1984.

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Edward J. Shaughnessy, Jr.


Page 12
Other Publications and Presentations (Continued)
16. J.H. Davidson and E.J. Shaughnessy, Turbulence Generation by Electric Body Forces.
Presented at the Ninth Biennial Symposium on Turbulence, Rolla, MO, October 1-3,
1984.
17. D.A. Nelson and E.J. Shaughnessy, First Order Property Variations in
Electrohydrodynamics. Presented at the 21st Annual Meeting of the Society of
Engineering Science, October 15-17, 1984, Blacksburg, VA.
18. D.A. Nelson and E.J. Shaughnessy, Electric Field Effects on Natural Convection in
Enclosures. Presented at the Winter Annual Meeting of the American Society of
Mechanical Engineers, New Orleans, LA, December 9-14, 1984.
19. J.P. Schaffer, E.J. Shaughnessy, and P.L. Jones, On the Application of Fast Fourier
Transforms and Power Spectrum Analysis to Incorrectly Posed Fredholm Integral
Equations. Presented at the International Conference on Integral Methods in Science and
Engineering, Arlington, Texas, March 18-21, 1985.
20. J.T. Sigmon, K.R. Knoerr, and E.J. Shaughnessy, Characteristics of Microscale Pressure
Fluctuations and Their Relationships to Mean Wind Speed and Direction in a Deciduous
Forest. Presented at the 17th Conference on Agriculture and Forest Meteorology,
Scottsdale, AZ, May 21-24, 1985.
21. J.H. Davidson and E.J. Shaughnessy, Secondary Flow and Turbulence Generation by
Electric Body Forces. Presented at the 22nd Annual Meeting of the Society of
Engineering Science, University Park, PA, October 7-9, 1985.
22. M.K. Weaver and E.J. Shaughnessy, An Impeller-Free Agitator for Suspension Culture
of Mammalian Cells. Presented at the Winter Annual Meeting of the American Society
of Mechanical Engineers, Boston, MA, December 13-18, 1987.
23. D.A. Nelson and E.J. Shaughnessy, An Exact Solution for Electrically-Driven
Convection between Vertical Electrodes. Presented at the IEEE Industrial Appl. Society
1989 Meeting - San Diego, October 1989, Submitted to IEEE Trans. on Industrial
Applications.

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Engineering analysis of the design, function, and operational characteristics of the Historic
Arms Model 54RCCS Caliber Conversion System for the MIO machine gun.
Report prepared in response to the

Complaint of Forfeiture
In the United States District Court for the Northern District of Georgia Atlanta Division

United States of America, Plaintiff


vs.
One Historic Arms Model 54RCCS "7.62x54R Caliber Conversion System" Machine Gun,
Serial No. Vt

Prepared by

Dr Edward J. Shaughnessy
Professor of Mechanical Engineering
Department of Mechanical Engineering and Materials Science
Duke University

All correspondence should be addressed to the author at 31 Southampton Place, Durham, NC


27705 or by email to ejshaughnessy@aol.com

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Nomenclature
The mechanical device examined in this report is referred to in various ways. The original
designation by Historic Arms is "Historic Arms Model 54RCCS Caliber Conversion System".
The plaintiff's legal action refers to the same device as "One Historic Arms Model 54RCCS
"7.62x54R Caliber Conversion System" Machine Gun, Serial No. Vl". In the interests of
brevity, this report will refer to the device as the Model 54RCCS. The Bureau of Alcohol,
Tobacco, Firearms, and Explosives will be referred to as BATFE, and the Firearms Technology
Branch of this organization will be referred to as FTB.

Table of Contents
A. Introduction and brief summary of principal findings.

B. The Model 54RCCS is not a firearm in and of itself.

C. The Model 54RCCS is not a firearm frame or receiver.

D. Firearm frame or receiver.

E. Methodology to classify machine gun uppers.

12

F. Methodology to classify machine guns.

18

G. Classification of the Model 54RCCS.

23

H. Classification of the FTB Test device.

26

I. Concluding remarks.

31

1153

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3
A. Introduction and brief summary of principal findings.
Any analysis of the Historic Arms Model 54RCCS Caliber Conversion System must
ultimately determine whether the device is a firearm in and of itself, a firearm frame or receiver,
or a non-firearm upper for the MIO machine gun. Ifthe Model 54RCCS is found to be a firearm,
or a firearm frame or receiver, then two additional questions must be answered: is the Model
54RCCS a short barreled rifle? Is it a machine gun?
In preparing this report, the author was mindful of the need to provide a full and complete
explanation of the thought process and methodologies that are used to arrive at the report's
findings. In this regard, the reader is directed specifically to sections D, E, and F, as these are
the sections that are intended to address any questions about process and methodology.
From the author's perspective, questions that ask what the Model 54RCCS is or is not, are
factual questions that are able to be answered by applying engineering analysis and testing. With
that caveat in mind, this report will demonstrate 1) that the Model 54RCCS is not a firearm in
and of itself, 2) that the Model 54RCCS is not a firearm frame or receiver, and 3) that the Model
54RCCS is a non-firearm upper for the Ml 0 machine gun that is functionally equivalent to the
standard MIO non-firearm upper.
Since there is an existing difference of opinion as to what the Model 54RCCS is or is not, it
is important to examine the test device and test procedure used by FTB in arriving at their stated
opinion that the Model 54RCCS is a machine gun. Having made that examination, this report
will also show 4) that the FTB test device consisting of a chain, turnbuckle, and plate is a firearm
frame or receiver when attached to a standard MIO non-firearm upper, 5) that the FTB test
device consisting of a chain, turnbuckle, and plate is a firearm frame or receiver and a machine
gun when attached to any MIO or Ml 1/9 non-firearm upper that has an integral feed system, and
6) that the FTB test device consisting of a chain, turnbuckle, and plate is designed to provide an
extraordinary level of added operational functionality to any MIO non-firearm upper.

In

addition, the report will show 7) that any claim that the Model 54RCCS is itself a firearm, a
firearm frame or receiver, or a machine gun that is based upon the use of the FTB test device is
the outcome of a scientifically invalid test procedure, and 8) that the FTB test device consisting
of a chain, turnbuckle, and plate is a firearm frame or receiver and a machine gun when attached
to the Model 54RCCS.

B. The Model 54RCCS is not a firearm in and of itself.

1154

RIF

An examination of the Model 54RCCS reveals that it is designed to be a replacement upper


for the MIO machine gun that attaches to the MIO lower receiver in the usual way and allows the
MIO to use a different caliber cartridge. There are other replacement MIO uppers available on
the market, and all have been correctly classified by BATFE as non-firearms irrespective of
whether the upper has an integral feed system. Before discussing the Model 54RCCS in detail, it
is necessary to review the characteristics of the MIO machine gun.
The MI 0 machine gun consists of an upper housing containing the bolt, firing pin (fixed to
the bolt), barrel, recoil system, and a lower housing containing the trigger, sear, and other
components of the firing mechanism. The MlO lower housing is usually referred to as the lower
receiver or lower. The lower receiver of the MIO is correctly classified as the regulated part by
BATFE, thus the MI 0 lower is a firearm, a firearm frame or receiver, and a machine gun. The
upper housing of the MIO is usually referred to as the upper. The MIO upper is a non-firearm
upper that is unregulated by BATFE, hence is an accessory freely available in the marketplace
without restrictions of any kind.
The MIO upper is open bolt in operation and relies on the energy stored in the recoil spring
to fire a cartridge. The upper employs a bolt with fixed firing pin that translates within a housing
that also contains the recoil system. The upper is open at the rear, but when attached to the MI 0
machine gun lower receiver, the lower receiver closes off the rear opening in the upper and
enables the recoil spring of the upper to be compressed. Because the MIO upper is open at its
rear, the upper is unable to fire a single shot in and of itself in the absence of the lower, a fact
that explains the MIO upper's classification as a non-firearm upper. A simple test, conducted by
the author on 6/24/09 in Thomasville, NC, shows that if the charging handle of the MIO upper is
pulled to the rear and released with the upper detached from the lower, the bolt moves towards
the rear, the recoil buffer and recoil spring protrude from the rear of the upper and all of these
parts remain in this rearward position. All MIO non-firearm uppers, including the standard MIO
non-firearm upper, those that are caliber conversion systems, and those that have attached feed
systems, share a specific key operational feature: the upper housing is open at the rear thereby
preventing the upper from firing a single shot in the absence of the MIO machine gun lower
receiver.
With this background in mind, an examination of the Model 54RCCS shows that it is open
bolt in operation and relies on the energy stored in the recoil spring to fire a cartridge. The bolt
and bolt carrier of the Model 54RCCS translate within a rectangular housing that also contains
the recoil spring and recoil buffer. Since the Model 54RCCS housing is open at its rear unless

1155

RIF

5
mated to the MIO machine gun lower, it is not possible for the Model 54RCCS to fire in and of
itself because it is impossible to develop the required tension in the recoil spring to activate the
firing mechanism. Thus the Model 54RCCS is identical to a standard MIO non-firearm upper in
that it cannot fire a single shot in and of itself in the absence of the M 10 machine gun lower.
The design of the Model 54RCCS includes the specific key operational feature of all M 10 nonfirearm uppers, namely that the upper housing is open at the rear. Consequently, the Model
54RCCS can be described as being functionally equivalent to the standard MIO non-firearm
upper.
The inability of the Model 54RCCS to fire in and of itself was physically demonstrated as
part of the testing co-witnessed by BATFE, Historic Arms, and this author on 6/10/09 in Coweta,
Georgia. On that occasion an attempt was made to cause the Model 54RCCS to fire a round from
a belt of ammunition in the absence of the MIO machine gun lower. This attempt did not result in
a shot being fired nor in any movement whatsoever of the bolt carrier or bolt due to the inability
to develop tension in the recoil spring after the charging handle was pulled to the rear. Pulling
the charging handle to the rear and releasing it simply caused the recoil spring and buffer of the
Model 54RCCS to protrude from the rear of the device and subsequently remain there at rest.
From the comparative analysis, testing, and discussion above, it is evident that the Model
54RCCS is not a firearm in and of itself because 1) it is unable to fire a shot in the absence
of the MlO machine gun lower receiver 2) it is designed to be a non-firearm upper for the
MIO machine gun, and 3) it is functionally equivalent to the standard MlO non-firearm
upper.

C. The Model 54RCCS is not a firearm frame or receiver.


If we accept the three findings of the previous section, then we must logically conclude that

as is the case with the standard MIO non-firearm upper, the Model 54RCCS is not a firearm
frame or receiver. Then, since the Model 54RCCS is not firearm in and of itself, and is not a
firearm frame or receiver, we must further conclude that the Model 54RCCS cannot be either a
short barreled rifle or a machine gun. Rather, we conclude that the Model 54RCCS is
designed to be, and is, functionally equivalent to the standard MIO non-firearm upper.
Although the findings of sections B and C stand on their own merits, and are in no way
dependent on the methods, ideas, or assumptions employed in the remainder of this report,
section G will provide a more comprehensive and exhaustive analysis of the Model 54RCCS that
independently arrives at all of these same findings.

1156

RIF

D. Firearm frame or receiver.


To clarify any source of potential confusion or debate regarding a finding in this report that
the Model 54RCCS is not a firearm frame or receiver, as well as to better understand other
sections of this report, this section analyzes The Code of Federal Regulations at 27 CFR Part
478.11 where it provides the following definition of firearm frame or receiver:
Firearm frame or receiver. That part of a firearm which provides housing for the hammer, bolt
or breechblock, a11d firing mechanism, and which is usually threaded at its forward portion to
receive the barrel.

As will become clear in the discussion that follows, at the time of publication of this
regulation some 40 years ago, its definition of firearm frame or receiver was outdated,
technically obsolete, and of no use whatsoever if applied in a literal way to most firearms. To
comprehend this claim, consider the following.
For at least 100 years, firearm designers have found it useful to create designs for pistols,
rifles, shotguns, and machine guns that house some key operational features of the firearm in an
upper housing, and other key operational features in a lower housing. In most of these firearms
key operational features are shared, meaning the function in question is provided by a
mechanism whose parts are located in both the upper and lower. This design practice is well
known to most people familiar with firearms such as the Colt Model 1911 semi-automatic pistol.
The Model 1911 pistol has two main components: an upper housing or slide, containing the
barrel, bolt or breechblock, firing pin, and recoil spring, and a lower housing containing the
hammer, trigger and additional parts of the firing mechanism within the body of what is
essentially a grip frame.
Since its initial production nearly 100 years ago, the lower housing of the Colt 1911 has been
regarded as the firearm's receiver and hence is regulated by the Bureau of Alcohol, Tobacco,
Firearms, and Explosives. The upper housing or slide of the Colt 1911 is not considered to be a
firearm, hence is an unregulated accessory item that may be purchased, transferred, and
possessed without restriction. One can in fact purchase a caliber conversion system for the Colt
1911 that is nothing more than a slide that incorporates changes to the barrel, bolt or
breechblock, firing pin, and recoil spring to enable the assembled pistol to operate in a different
caliber than the original 45 ACP caliber. This caliber conversion slide is not regulated by

1157

RIF

7
BATFE since it is a replacement slide for the Colt 1911, has the same key operational features as
the original Colt I 9 I 1 slide, is functionally equivalent to the original slide, and is not itself a
firearm.
In the rifle category, most people familiar with firearms will immediately recognize that the
ARIS semi-automatic rifle shares with the Colt I911 the common design element of separable
upper and lower housings. In the case of the ARI 5, the upper housing, or upper, contains the
barrel, barrel extension, bolt, bolt carrier, and firing pin. The AR 15 upper is not considered by
BATFE to be a firearm, hence is an accessory item that may be purchased, transferred, and
possessed without restriction. The lower housing of the ARIS, usually referred to simply as the
lower, or lower receiver, contains the hammer, trigger, and other parts of the firing mechanism as
well as the recoil system. The lower of the ARIS is regarded by BATFE as the firearm's receiver
and is therefore the regulated item. One can purchase a caliber conversion system for the ARIS
that is simply an upper that has been designed to operate in a different caliber than the original
upper. This caliber conversion upper is not regulated by BATFE since it has the same key
operational features as the original ARI 5 upper, is functionally equivalent to the original upper,
and is not itself a firearm.
If we now attempt to apply the definition of firearm frame or receiver as given at 27 CFR

478.11 to the Colt 1911 and ARIS we immediately perceive a substantial difficulty. The Colt
19I 1 slide is considered to be a non-firearm, yet it contains the bolt or breechblock, barrel, and
the firing pin, the latter being an essential component of the firing mechanism. The Colt 191 I
lower, which is considered to be the firearm frame or receiver, contains the hammer, trigger, and
other parts of the firing mechanism, but not the bolt or breechblock, or barrel. If applied
literally, the definition at 27 CFR 478.11 cannot be used to unambiguously determine which of
the two housings of this pistol is the firearm frame or receiver.
We reach a similar conclusion when we examine the ARIS to determine which part of this
rifle constitutes the firearm frame or receiver. The ARIS upper contains the barrel, barrel
extension, bolt, bolt carrier, and firing pin, with the latter an essential part of the firing
mechanism. The ARI 5 lower contains the hammer, trigger and other parts of the firing
mechanism, recoil system, and is considered to be the firearm frame or receiver, yet the lower
does not contain the bolt or breechblock, or barrel. We see once again that when applied literally
the definition at 27 CFR 478.l I cannot be used to unambiguously determine which of the two
housings of this rifle is the firearm frame or receiver.

1158

RIF

The reason for making these observations about the Colt 1911 and ARIS is to draw attention
to the fact that employing a literal reading of the definition at 27 CFR 478.11 to determine

what is, or is not, a firearm frame or receiver is simply impossible from a logical, scientific,
or engineering perspective. One can, however, apply a reasonable interpretation of the intent
of the definition of firearm frame or receiver at 27 CFR 478.11, and use this interpretation as part
of a comprehensive methodology that leads to logical conclusions when one is tasked with
determining if a device is, or is not, a firearm; is or is not a firearm frame or receiver; and in the
present context, is or is not a machine gun.
In determining intent, the language of the definition at 27 CFR 478.11 of firearm frame or
receiver requires care in interpretation. First and foremost, we must take note of the fact that the
definition refers to "that part of a firearm", which indicates that the term firearm refers to the
entire, assembled firearm in its normal configuration, and that the definition is concerned with
identifying a specific single part rather than several parts or the entire firearm . Any assertion
that a firearm of any kind has, or may have, more that one firearm frame or receiver must be
firmly rejected. Such an assertion denies the clear meaning of the language "that part", and
would create legal and regulatory confusion with respect to all existing firearms having an upper
and lower housing. This confusion, of course, arises from the fact that as is the case with the
Coltl91 l and ARIS, the firearm frame or receiver of every one of these existing firearms is a
specific single part.
Returning to the language of the definition, we see that it says "which provides housing for"
followed by a list of items. So the definition points us to a specific single part of the entire
firearm that in some manner houses, holds, encloses, or contains, those items in the list that
follows.
Continuing to analyze the definition, we next see that it makes specific reference in the list to
"hammer", "bolt'', "breechblock", "firing mechanism", and "barrel", but makes no attempt to
define these particular components. Although a definition of hammer, bolt, breechblock, and
barrel would not seem necessary, the inclusive term "firing mechanism" requires additional
scrutiny.
A "firing mechanism" must refer to a mechanism, which in this context is a part or collection
of parts that acting together is able to produce a desired action or function.

The adjective

"firing" indicates that the action or function in question is that of causing the firearm to fire. A
hammer is certainly part of the firing mechanism of some firearms, but not all firearms have
hammers. Some firearms have strikers rather than hammers. Other firearms use the bolt carrier

1159

RIF

to strike the firing pin. Although "hammer" occurs separately in the definition, it is unlikely that
this was done to signal an intention to distinguish "hammer" from "firing mechanism" or to
interpret "firing mechanism" in some other way. For if such an intention existed, the definition
could, for example, have made use of the words "hammer.... and triggering mechanism" instead
of "hammer.... and firing mechanism".

Thus the meaning of "firing mechanism" must be

intended to include any and all of those parts that from a functional perspective enable a specific
firearm to fire.
The list of parts intended to be included in "firing mechanism" would therefore have to
include the striker if one is present, the bolt carrier, the bolt if the design uses the bolt to ignite
the primer, as well as the firing pin, hammer spring, trigger, trigger spring, sear, recoil spring,
safety, and the many other components of the "firing mechanism" of a given firearm. The
hammer, if one is present, is also part of the firing mechanism of a firearm, but "hammer" is
probably mentioned separately because of its prominence and ease of identification as an
essential part of the firing mechanism in older firearm designs.
Next we note that in referring to the barrel of the firearm, the definition says "and which is
usually threaded at its forward portion to receive the barrel". A plausible interpretation here is
that the word "usually" is intended to inform us that a firearm frame or receiver often houses,
holds, encloses, or contains, the barrel, but that in some firearm designs, the firearm frame or
receiver may not include the barrel. It seems very unlikely that "usually" is intended to refer
solely to "threaded", i.e. to a specific way of attaching a barrel to the receiver.
Before arriving at a reasonable interpretation of intent, we must also note that since the
definition of firearm frame or receiver at CFR 478.11 makes no mention of a feed system, the
presence or absence of a feed system in the firearm, or its specific location in a firearm
consisting of an upper and lower, cannot play any role in the identification of a firearm frame or
receiver. This enables us to conclude that in the definition, "firing mechanism" means the set of
parts that enable the firearm to fire a single shot rather than a succession of shots. That is, the
definition indicates that whether the firearm is self-loading is irrelevant to determining what
single specific part of the entire firearm is the firearm frame or receiver.
Lastly we note that if the definition is read as requiring that every item in its list of items be
housed in the firearm frame or receiver, then we would be forced to conclude that most firearms,
and specifically the Colt 1911 and ARI 5, do not have a firearm frame or receiver at all, an
outcome that surely is not intended.

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With the above discussion in mind, the impossibility of applying the definition of firearm
frame or receiver in a strictly literal way to the task of detennining what is or is not a firearm
frame or receiver of most fireanns ought to be clear. The design of firearms for at least the last
I00 years has almost always distributed the items of interest to the definition among more than
one "housing". We cannot hope to find a housing in most firearms that contains all of the items,
and we cannot make the location of "barrel", or "bolt or breechblock", or "firing mechanism" the
sole criterion as the examples of the Colt 1911 pistol and ARIS rifle make clear. We cannot
make the location of the "hammer" the sole criterion either, for the firearm may not have a
hammer.
The solution to this dilemma is to focus on the logical intent of the definition to identify a
single specific part for regulation, leaving all other parts as unregulated items that can be readily
replaced in the event, say, of wear and tear. Then from a scientific and engineering perspective it
is clear that the intent of definition of firearm frame or receiver at 27 CFR 478.11 is to enable
one to determine what single part of the entire firearm houses, holds, encloses, or contains the
preponderance of key operational features that enable the firearm to actually fire a single shot.
Having arrived at this interpretation, logic next dictates that in making this determination for a
firearm consisting of an upper and a lower, the first and central question is whether the upper or
lower will itself fire a shot in the absence of the other part needed to complete the fireann. If the
upper is able to fire in and of itself, that part is without question a fireann, and is therefore also
the fireann frame or receiver since it is the intent of the definition to identify this single specific
part of the entire fireann. The same is true of a lower that is able to fire a single shot in and of
itself. Such a lower is a firearm and is the fireann frame or receiver. On the other hand, if
neither the upper nor lower of a fireann will fire a shot in and of itself, then the above
interpretation of the intent of the definition at 27 CFR 478.11 enables us to identify the single
part that is the firearm frame or receiver, which is to say to identify the single part that is the
firearm, and hence is the regulated part of the overall firearm.
In the interpretation suggested here, the use of "preponderance of key operational features" is
chosen to indicate that we are to avoid an emphasis on counting parts rather than on
comprehending their relative importance in the operation of firing a single shot, and that we
avoid being unduly influenced by the presence or absence, or the location of, the four
specifically named parts (hammer, bolt, breechblock, barrel), or the presence or absence, or the
locations of the many other parts are part of the "firing mechanism".

The words "key

operational features" are used to draw our focus instead to all of the key features of the firearm's

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design that enable the firing of a single shot. Such features may be provided by some design

element that is not a physical part. A key operational feature may for example be an opening, a
hole, a shelf etc. Where are the preponderance of these features located? From an engineering
perspective, this is a logical way to decide which single part of the firearm is the firearm frame
or receiver.
Let us now see if this approach has merit. In the case of the Colt 1911 and ARl 5, neither
firearm's upper will fire in the absence of the lower. Likewise, neither firearm's lower will fire
in the absence of the upper. Which part of these two firearms contains the preponderance of key
operational features that enable either firearm to actually fire a single shot? Since the Colt 1911
and AR 15 lowers contain the hammer and the hammer spring that enables the hammer to strike
the firing pin, the approach described here instructs us to identify the lowers of these two
firearms as the firearm frame or receiver, despite the presence of the barrel, bolt or breechblock,
and firing pin in the uppers.
Earlier it was claimed that if applied in a literal way to most firearms, the definition of
firearm frame or receiver at 27 CFR 478.11 was outdated, technically obsolete, and of no use
whatsoever. The interpretation of intent given here provides a logical and flexible approach that
enables that same definition to remain up to date, technically correct, and useful when applied to
identify the firearm frame or receiver of any firearm.
The author has developed a first comprehensive methodology that is designed to be
specifically applicable to determine the appropriate classification of machine gun uppers such as
the Model 54RCCS. The methodology yields logical and defensible results when applied to any
machine gun upper, and it clearly distinguishes non-firearm uppers from firearm uppers. In
addition, the author has developed a second comprehensive methodology based in part on the
interpretation of intent discussed above that enables one to determine whether the upper or lower
of any machine gun contains the firearm frame or receiver, a determination which is itself a
critical factor in the classification of a machine gun upper. The first of these two methodologies,
namely, the methodology to classify machine gun uppers is described and illustrated in detail in
the next section.

E. Methodology to classify machine gun uppers.


This section describes a methodology that may be used to determine whether a newly
designed upper for an existing machine gun is a non-firearm upper, or is itself either a firearm or
a machine gun. The process, referred to as classification, begins by assuming that a newly

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designed upper for an existing machine gun is submitted in order to be classified. It is assumed
that this existing machine gun (the host machine gun) is of the type in which the lower is
correctly classified as the regulated part, which is to say that the lower is a firearm, a firearm
frame or receiver, and a machine gun. Because of the assumption that the machine gun lower
is correctly identified as the firearm frame or receiver, this methodology to classify
machine gun uppers does not rely in any way on the interpretation of the definition of
firearm frame or receiver at 27 CFR 478.11 that is discussed in section D.
The use of the word correctly in two places above is both deliberate and extremely important
since a valid procedure based on engineering analysis simply cannot be constructed unless the
regulated part of the host machine gun is correctly identified. The correct classification of
machine guns themselves, i.e. the correct identification of the firearm frame or receiver, is
discussed in section F of this report. Both sections use a number of examples through out to
illustrate various elements of the respective classification methodologies. After describing the
methodology to classify machine gun uppers, it is applied in Part G specifically to the Model
54RCCS.

The steps in the classification procedure for a machine gun upper are:

1) Determine the make and model of the machine gun for which the submitted upper is intended
(the host machine gun) so that one can review the operational and design characteristics of the
host machine gun in its original configuration, and verify that the host consists of a non-firearm
host upper and a machine gun host lower. If this is the case, the firearm frame or receiver is
contained in the machine gun host lower.

2) Next determine the key operational features of the host machine gun as related specifically to
the function of firing a single shot. For example, is the host machine gun open or closed bolt,
fixed or moveable firing pin, hammer fired or striker fired? These and other key operational
features are typically distributed within both the upper and lower, but we may logically assign
these features to the host upper for the purpose of classification of the upper.

3) After careful study of the design of the upper submitted for classification, and of its operation
when assembled to the machine gun host lower, determine whether the submitted upper is
identical, functionally equivalent, or functionally non-equivalent to the non-firearm host upper.

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4) If the submitted upper is identical to, or functionally equivalent to, the non-firearm host upper,
the correct classification of the submitted upper is that it is a non-firearm upper. To make this
detennination, consideration must be given to the following:
4a) an identical upper is one designed to be a duplicate of the host upper. It follows that the
identical upper has exactly the same key operational features as the host upper and shares the
host upper's classification as a non-firearm upper. Cosmetic differences in an identical upper are
not significant and do not affect the determination that the submitted upper is identical. An
example of an identical upper is any OEM type replacement upper for the MIO machine gun.
4b) a functionally equivalent upper is one that is determined to be incapable of firing a single
shot in the absence of the host lower. Note carefully that the key operational features of a
functionally equivalent upper may be identical to, or substantially different from, those of the
host upper, but by applying engineering analysis and/or testing, the submitted upper is
determined to be incapable of firing a single shot in the absence of the host lower. This
establishes that the submitted upper is the functional equivalent of the host non-firearm upper
despite differences in design, features, and appearance.
4c) a functionally non-equivalent upper is one that is determined to be capable of firing a
single shot in the absence of the host lower irrespective of its similarity in key operational
features to the non-firearm host upper. An upper that is functionally non-equivalent is correctly
classified as a firearm, hence is also a firearm frame or receiver. Further analysis and/or testing
must be employed to determine if this firearm upper is a machine gun.

5) The process of deciding that a submitted upper is, or is not, functionally equivalent to the host
non-firearm upper may appear to be challenging. This arises from the fact that some of the key
operational features of the submitted upper may be different from the host non-fireann upper, yet
the differences have no impact whatsoever on the determination of whether the submitted upper .
is a non-firearm upper. The key to a correct classification is a process that focuses
specifically on the question of whether the submitted upper is capable of firing a single shot
in the absence of the lower. For reasons to be explained in more detail in part E3, in testing a
submitted upper it is absolutely necessary to evaluate this capability when the upper alone
is manipulated as intended by the designer of the upper during normal operation of the
assembled firearm.

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The remaining parts of this section analyze a variety of examples and further explain this
process of examining a submitted upper to determine if it is identical, functionally equivalent, or
functionally non-equivalent to the host non-fireann upper.
El) Consider the many different M16 uppers that are commercially available but not
necessarily identical to the host upper delivered with a specific M 16 machine gun from the
manufacturer.

These uppers have different barrel lengths, calibers, types of gas operation,

cocking handle location etc. All have the same key operational features of the original Ml6
upper (closed bolt, moveable firing pin, hammer fired) that permit the upper to operate properly
with the M16 lower, and consequently all of these uppers are incapable of firing a single shot in
the absence of the lower. They are all correctly classified as non-firearm uppers since they are
either identical or functionally equivalent to the host non-firearm upper.
E2) It should be carefully noted that whether a functionally equivalent upper includes a
magazine housing or other feed system that differs from, or is not present in, the host upper is of
no relevance whatsoever in determining functional equivalence. The reason, of course, is that the
feed system plays no role in enabling the upper to fire a single shot that has been manually
placed in the chamber. Moreover, logic dictates that if the functionally equivalent upper is itself
not a fireann, (because it cannot fire a single shot in and of itself, and is the functional equivalent
of the host non-firearm upper) it cannot be a machine gun. To further clarify this point, note that
the assembled machine gun is intended to fire repeatedly, hence the assembled fireann must
provide a feed mechanism of some type and in some location within the firearm to achieve this
functionality. What does not matter is whether this functionality is included in the upper or lower
of the assembled machine gun.
To illustrate this important point about the irrelevance of the presence or absence of a feed
system in a functionally equivalent upper, consider the following functionally equivalent uppers
for the host Ml 119 submachine gun: the Fleming-SubCal 22lr caliber conversion upper, the
Smith, and the Mendenhall uppers. Similar functionally equivalent uppers exist for the M 10
submachine gun. All of these uppers are unable to fire by themselves, have the same key
operational features as the standard Ml 119 or Ml 0 non-fireann uppers, thus all are functionally
equivalent to the host non-firearm upper. The methodology of this section and the Firearms
Technology Branch of BATFE correctly classify all of these replacement uppers as non-firearm
uppers. Although the standard Ml 119 and MIO non-fireann uppers do not contain a magazine
housing, the cited examples of functionally equivalent replacement uppers for these machine
guns all provide a magazine housing as part of the upper. However, for the reasons given earlier,

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15
this provision of a feed system in the upper has no impact whatsoever on the FTB classification
since they are all non-fireann uppers.
E3) Engineering analysis is often sufficient to determine that a submitted upper is a nonfirearm upper, but in some cases physical testing may be needed to verify a conclusion. If testing
is employed to determine whether a submitted upper is capable of firing a single shot in the
absence of the host lower, the upper alone should be manipulated only as intended by the
designer during normal operation of the assembled firearm. This is a critically important point if
the intention is to construct a scientifically valid test procedure.
The person performing a test must remain aware that a test device that attaches to an upper,
or adds any parts to the upper, or which provides an external source of energy to the upper,
always affects the functionality of the upper. From an engineering perspective, whether
inadvertent or not, the use of a test device or test method of any kind that adds operational
functionality to the upper (meaning functionality that enables, assists, or allows the upper to
fire a single shot when it could not do so by itself when manipulated as the designer intended)
results in a scientifically invalid test procedure. Obviously, the use of a test device or test
method that subtracts operational functionality from the upper also results in a scientifically
invalid test procedure. The person performing a test must also recognize that in instances of
testing with added operational functionality, the parts of a test device that are added or attached
to the upper may themselves be determined to be a firearm frame or receiver, a machine gun,
both of these simultaneously, or a machine gun conversion device, depending upon the specific
test device, the type of submitted upper under test, and the procedure employed.
For example, if a test device holds a standard MIO non-firearm upper in such a way as to
close the rear end of the upper, the test device captures the recoil spring and adds to the upper
the precise operational functionality that enables a single shot to be fired by pulling the cocking
handle of the upper to the rear. It is evident that in this case, the test device is a firearm frame or
receiver, no matter how simple or innocuous the test device appears to be when viewed in
isolation. The test result, showing that the standard MlO non-firearm upper is able to fire a single
shot in the absence of the M 10 lower receiver is quite clearly erroneous. In this instance it is
very easy to see that the test device provides to the upper the single most essential function of the
M 10 machine gun lower receiver, which is to close the rear end of the standard M 10 non-firearm
upper to allow the upper to fire a single shot. The test device itself is a firearm frame or receiver
when it holds a standard MIO non-firearm upper in the described manner. If the same test device
holds an MIO non-firearm upper that has an integral feed system, the test device is itself a

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16

machine gun, for it will add the operational functionality that enables the test device and nonfirearm upper as assembled to fire more that one shot when the cocking handle is pulled to the
rear and released.
E4) Two instructive examples of functionally equivalent uppers for the AR1S/Ml6 are the
Ares Defense Systems Shrike belt (and magazine) fed upper, and the BRP Guns XMG belt fed
upper. These two uppers have the same key operational features as the standard AR15/M 16 nonfirearm upper (closed bolt, moveable firing pin, hammer fired), and both uppers incorporate feed
systems that are absent in the host non-firearm upper that they replace. Both uppers are totally
incapable of firing a single shot in the absence of the AR15/Ml6 lower. The FTB classification
of the Shrike upper is unknown, but applying the methodology to classify machine gun uppers
shows that the Shrike is a non-firearm upper. Applying the methodology to the XMG belt fed
upper leads to the conclusion that the XMG is also a non-firearm upper, yet FTB has classified
the XMG upper as a firearm. Is this a correct classification? The methodology demonstrates that
the answer is unequivocally no.
One possible explanation for FTB's erroneous classification of the XMG upper lies in the
fact that the XMG upper, unlike the host ARIS /Ml6 upper, contains the recoil system in the
upper.

In addition, the rear end of the XMG upper is closed, while the rear end of the

AR15/Ml6 upper is open. Thus pulling back on the charging handle of the XMG upper will
cycle the bolt and bolt carrier through their normal range of operation, and even feed a round
into the chamber. Nevertheless, because the XMG upper is closed bolt, moveable firing pin, and
hammer fired, the XMG upper will not fire a single shot when separated from the ARIS /Ml6
lower receiver. Thus the XMG is functionally equivalent to the host AR1S/Ml6 upper, and the
placement of the recoil spring in the XMG upper and its closed rear end enabling tension on that
spring are of no functional significance in the determination that the XMG is a non-firearm
upper.
A second possible explanation for the erroneous classification of the XMG upper is that it is
designed to be very similar in appearance to the MG34 belt-fed machine gun. This point is
explored further in section F, part F4 of this report following a detailed examination of the
MG34.
ES) If a submitted upper has key operational features that are fundamentally different from
the host non-firearm upper, the submitted upper must be careful1y analyzed to arrive at a correct
classification. The key point of this analysis is to determine first whether the upper itself meets
the test of being a firearm, i.e. will the upper fire a single shot in the absence of the lower when

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the upper alone is manipulated as intended by the designer during normal operation of the
assembled firearm. If the upper is determined to be a non-firearm, either by analysis or by
appropriate testing of its ability to fire a single shot, the key operational features of the upper are
irrelevant, as are differences in feed systems and other features. On the other hand, if the upper
is determined to be a firearm because it is able to fire a single shot by itself, further analysis is
necessary to determine if it is also a machine gun.
E6) For example, consider a standard MIO upper that has been modified so that the rear
opening of the upper is closed. If this closed end upper is submitted for classification, the
methodology or a simple test would immediately ascertain that the closed end upper will by
itself fire a single shot when the bolt handle is pulled to the rear and released with a cartridge
loaded in the chamber. This occurs because when the bolt handle is pulled to the rear and
released, the recoil spring is compressed against the rear closure of the upper itself, thereby
enabling the bolt with its fixed firing pin to move forward under recoil spring tension and fire a
single cartridge placed in the chamber. Thus a closed end Ml 0 upper otherwise identical to a
standard Ml 0 non-firearm upper is correctly classified as a firearm. Because this closed end
upper also contains an opening in its bottom to admit the magazine normally held in the M 10
machine gun lower, the closed end upper is also correctly classified as a machine gun. For
obvious reasons, a closed end MIO upper that does not have the magazine opening in its bottom
would be a firearm but not a machine gun.
E7) When the methodology previously outlined is fully comprehended, the c1assification of a
submitted machine gun upper is a straightforward, rational, and scientifically based process that
will withstand scrutiny. It is important to note that as stated and emphasized previously, the
underlying assumption of this methodology for classifying machine gun uppers is that the host
machine gun lower is correctly classified as the regulated part, i.e. as the firearm frame or
receiver. This is unfortunately not always the case with existing BATFE classifications, as will
be demonstrated in the discussion of the next section. Moreover, in the case of a firearm of a
new or unfamiliar design, a classification of the firearm may have never been performed by FTB.
By employing the logical approach taken in the development of the methodology to classify
machine gun uppers, and making use of the interpretation of intent of the definition of firearm
frame or receiver at 27 CFR 478.11 given in section D, the author has constructed a
methodology to identify the controlled part of any machine gun having a design that includes an
upper and a lower. This methodology to classify machine guns is described in the next section.

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F. Methodology to classify machine guns.
This section describes a methodology that may be used to independently verify that the
identification of the firearm frame or receiver of a machine gun whose design consists of an
upper and lower is correct. It is presented here because a correct classification of a machine gun
upper using the methodology of the last section cannot be obtained if the firearm frame or
receiver of the machine gun is not correctly identified. This methodology to classify machine
guns relies on the interpretation of the definition of firearm frame or receiver at 27 CFR
478.11 that is discussed in section D.

The steps in a classification procedure for a machine gun consisting of upper and lower are:

1) Determine whether the upper of the submitted machine gun is able to fire a single shot in the
absence of the lower. If the upper is able to fire a single shot in the absence of the lower, the
upper is a firearm, is the firearm frame or receiver, and is also a machine gun since the
assembled firearm is known to fire automatically. In some cases the upper that fires a single shot
in the absence of the lower will also fire automatically in the absence of the lower, thereby
demonstrating that the upper is indeed the machine gun. If the lower is able to fire in the
absence of the upper, the lower is the firearm, the firearm frame or receiver, and the machine
gun. If neither the upper nor the lower will fire a single shot in the absence of the other then
further steps are needed to identify which of the two is the firearm frame or receiver, hence is the
firearm and the machine gun.

2) Review the operational and design characteristics of the machine gun to identify the key
operational features of the machine gun that enable it to fire a single shot and determine where
those features are located with respect to the upper and the lower. Key operational features are
typically distributed within both the upper and lower, but it is typically not difficult to arrive at a
logical assignment of their location for the purpose of conducting the next step.

3) After a careful study of the key operational features and their locations, determine whether the
upper or lower contains the preponderance of key operational features that enable the assembled
upper and lower to function as a firearm, meaning specifically the ability to fire a single shot.

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4) Classify the component of the machine gun containing the preponderance of key operational
features as the firearm frame or receiver, the firearm, and the machine gun.
The remaining parts of this section provide examples and discussion to further explain the
methodology to classify machine guns.
Fl) To illustrate the thought process of this methodology, consider first the Ml6 machine
gun. The upper of an M16 cannot fire a single shot in the absence of the lower when manipulated
alone according to designer intent. We already know that the Ml6 upper itself can be correctly
classified as a non-firearm upper using the methodology to classify machine gun uppers of
section E, but our interest here is to classify the M 16 itself independently of that conclusion.
Looking at the M 16 lower, one initially comes to the same conclusion regarding the lower: it too
cannot fire a single shot on its own. This seems paradoxical, and may tempt the unwary to
conclude that focusing on the ability to fire a single shot is unwarranted. However, since the
upper typically contains the barrel, that focus provides a means of tentatively eliminating the
upper from consideration as the regulated part, and further discussion throughout this section
will hopefully demonstrate why this is helpful. Using the interpretation of the intent of the
definition of firearm frame or receiver at 27 CFR 478. l 1 as developed in section D, it is quite
clear that the preponderance of key operational features that enable the assembled M 16 upper
and lower to function together as a firearm, i.e. to fire a single shot, are provided in the lower.
One need only point to the presence of the hammer and the rest of the M 16 firing mechanism
other than the firing pin in the lower to support this contention.

Thus sound engineering

principles support a conclusion that the Ml6 lower is correctly classified as the firearm frame or
receiver, the firearm, and the machine gun. Once the Ml6 lower is correctly classified, we can
use the methodology to classify machine gun uppers of section E to classify the M 16 upper as a
non-firearm upper.
F2) Next consider the MIO machine gun. Because the MIO upper is open at the back, an MIO
upper will not fire despite being open bolt and having a fixed firing pin. This is because in the
absence of the lower there is no recoil spring tension to close the bolt and fire a cartridge placed
in the chamber. The MI 0 upper is therefore not itself a firearm, and by the same test, neither is
the MIO lower. However, the MIO lower is correctly classified as the firearm frame or receiver
because of the preponderance test. Note that in applying the preponderance test, it must first be
noted that in an open bolt firearm the recoil spring is a part of the firing mechanism. Secondly,
the recoil spring must have a fixed terminus to bear against in order to develop tension in the

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spring when the bolt moves to the rear. From an engineering perspective this fixed terminus
is a critical part of the firing mechanism and hence is a key operational feature of the MlO.
Although the recoil system of the M 10 resides partly in the lower and partly in the upper, the
fixed terminus is entirely in the lower, along with the other parts of the firing mechanism. Thus
the firing mechanism of the MIO is predominantly contained in the lower. It is clear that the
preponderance of key operational features of the MIO machine gun are located in the lower.
Thus the M 10 lower is correctly classified as the firearm, the firearm frame or receiver, and the
machine gun. With that fact established, the Ml 0 upper is easily classified as a non-firearm
upper using the methodology to classify machine gun uppers of section E.
The rear closure of the upper that is provided by the MIO lower, i.e. the fixed terminus for
the recoil spring, is absolutely necessary for an assembled Ml 0 to fire. Thus the location of the
fixed terminus in the M 10 lower is heavily weighted in the decision process that arrives at an
assignment of the preponderance of key operational features to the lower.
F3) For another instructive example, consider the MG34 and MG42 belt fed machine guns.
Both are open bolt, moveable firing pin, striker fired upon bolt entering battery, firearms. These
are the key operational features. The MG42 upper is a single housing that contains the barrel,
bolt, and recoil system. The MG34 upper, however, has a front portion that contains the barrel,
and a rear portion that contains the bolt and recoil system. These two upper portions can be
separated from one another, but that feature is irrelevant to the present discussion and we may
simply refer to the MG34 as having an upper rather than two uppers. (This closer look at the
MG34 design should reinforce the earlier argument that it is simply not possible to apply the
definition of firearm frame or receiver at 27 CFR 478.11 in a literal way.)
The upper of each machine gun contains the bolt and recoil spring, but part of the firing
mechanism is contained in the lower (i.e. in the grip stick). With the respective lower removed,
the MG34 and MG42 each will fire a single shot placed in the chamber if the bolt is retracted
and released, hence the upper of each is a firearm and is correctly labeled by BATFE as the
regulated part i.e. as the firearm frame or receiver. The ability of these uppers to fire a single
shot is the critical factor in the classification process for these firearms, and the presence of parts
of the firing mechanism in the lower is of no significance. The fixed terminus of these two open
bolt firearms is in the upper. Since the uppers of the MG34 and MG42 will fire a single shot
when manipulated as the designer intended, the uppers of these machine guns are correctly
classified as firearms. There is no need for a preponderance test once the regulated part, i.e. the
firearm frame or receiver is clearly and unambiguously identified. That the MG34 and MG42

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uppers are also machine guns follows of course from the provision of a feed mechanism in their
respective uppers and the fact that they will fire continuously until the ammunition is exhausted
without the grip stick attached. The MG34 and MG42 lowers are non-fireann lowers.
F4) If we briefly reconsider the XMG belt fed upper discussed previously in section E, part
E4, we see that the above analysis of the MG34 is helpful in revealing that while the XMG upper
shares some of the features of the MG34, including the belt feed system, enclosed recoil system,
and two piece upper, and closely resembles the MG34 in outward appearance, the XMG upper is
fundamentally different in design and function from the MG34. The XMG upper will not fire as
the MG34 does in the absence of the corresponding lower. Thus the XMG upper is clearly a nonfirearm upper for the AR15/M16 as previously determined.
F5) Another worthwhile example of the use of the methodology to classify machine guns is
found in the Uzi submachine gun. The Uzi has an upper and lower, and roughly resembles a
MIO submachine gun in external appearance.

We previously determined in part F2 of this

section that the MIO lower is the firearm because the MlO upper is a non-firearm, and the MlO
lower contains the preponderance of key operational features.

At first glance it may seem

surprising to learn that the upper of the Uzi is correctly classified as the regulated part even
though the Uzi lower contains the greatest number of parts of the firing mechanism and hence
may plausibly pass the preponderance test. Is the classification of the UZI upper as the regulated
part correct? The answer is yes, and this example demonstrates why it is important to examine
the ability of the upper to fire a shot before applying a preponderance test.
In the absence of the lower, if the bolt of an Uzi upper is pulled back and released with a
single cartridge in the chamber, the upper will fire. The upper itself is therefore a firearm and
hence is immediately and correctly classified as the regulated part. There is no need to consider
the preponderance test. Note here that in testing the Uzi upper, we describe pulling the bolt back
rather than pulling the cocking handle back. This is deliberate. Later versions of the Uzi had a
ratcheting top cover as a safety mechanism. That ratchet would prevent the bolt from moving
forward when the cocking handle is released. This feature is of no consequence to the required
test, however, since the top cover is not part of the upper, and pulling the bolt back does produce
a manipulation of the firing action of the upper as intended by the designer.
Now, how are MIO and Uzi submachine gun uppers able to function so differently? The
answer is that the Uzi upper is closed at its rear, thereby providing a fixed terminus for the recoil
spring in the upper itself that allows the recoil spring to function to drive the bolt home in the
absence of the lower. In the MlO upper, the rear end of the upper is open and the recoil spring

1172

RIF

22
cannot function in the absence of the fixed tenninus provided by the lower. Thus in the Uzi
submachine gun the firearm frame or receiver is the upper, in the MIO submachine gun the
fireann frame or receiver is the lower.
F6) The methodology to classify machine guns easily identifies longstanding errors in the
BATFE classification of machine guns.

Consider the PPSh-41 submachine gun, a firearm

produced by the former Soviet Union in vast quantities nearly 70 years ago. The upper of the
PPSh-41 holds the barrel, and, interestingly, this is the only key operational feature that can be
assigned to the upper from an engineering perspective. The lower of this machine gun contains
the bolt, ejector, magazine housing, and recoil spring, provides the recoil spring with a fixed
tenninus, and provides a mount for the selective fire trigger group and stock. The upper cannot
fire a single shot in the absence of the lower, and the preponderance of key operational features
are unmistakably in the lower. Thus the lower receiver of the PPh-41 is a firearm, a firearm
frame or receiver, and a machine gun. BATFE classifies the upper of the PPSh-41 as the
firearm. Is this a correct classification? Engineering analysis shows that the answer is no, and
this incorrect classification appears impossible to defend by any test, engineering analysis,
logical process, or any reading of the definition of firearm frame or receiver at 27 CFR 4 78.11.
The most probable explanation for BATFE's incorrect classification is that the PPSh-41 'supper
happens to be where the Soviets stamped the firearm's serial number.
F7) As a final example that illustrates how an erroneous conclusion can be reached in the
absence of careful engineering analysis and a comprehensive methodology to classify machine
guns, consider the RPD belt-fed machine gun. This machine gun is open bolt, with a moveable
firing pin that is struck as the bolt enters battery. The recoil spring, its fixed terminus, and the
fire control mechanism of the RPD are entirely in the lower. BATFE classifies the RPD upper as
the firearm, most likely because that is where the serial number is located. Is this a correct
classification? Applying the methodology to classify machine guns, we quickly and easily
establish that the RPD upper cannot fire a single round in the absence of the lower when
manipulated as the designer intended. The reason for this is that the RPD recoil spring and its
fixed terminus are contained in the lower. Pulling the bolt back on an RPD upper in the absence
of the lower does not result in any forward motion of the bolt upon release. Therefore the RPD
upper is a non-firearm upper, and it is quite clear that the preponderance of key operational
features that enable the assembled upper and lower of an RPD to function as a firearm are in the
lower. Thus there is no doubt that the RPD lower is a firearm frame or receiver, a firearm, and a
machine gun.

1173

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23
F8) In the introduction to section E, it was pointed out that it is impossible to have a valid
procedure for classifying machine gun uppers unless one has correctly identified the regulated
part of the host machine gun. The examples and discussion of this section demonstrate that the
methodology to classify machine guns can accomplish this important task. When employed
together, the two comprehensive methodologies, namely, the methodology to classify
machine gun uppers and the methodology to classify machine guns provide a scientifically
rigorous classification process for machine gun uppers and for machine guns themselves.

G. Classification of the Model 54RCCS.


In this section, the methodology to classify machine gun uppers (section E) is applied
specifically to the Model 54 RCCS. As a reminder, this methodology does not rely in any way
on the interpretation of the definition of firearm frame or receiver at 27 CFR 478.11 that is
discussed in section D.

Consequently the findings of the classification of the Model

54RCCS in this section do not depend on that interpretation.

Step 1) Determine the make and model of the machine gun for which the submitted upper is
intended: The Model 54RCCS is an upper for the MI 0 machine gun. The host machine gun,
namely the Ml 0, consists of a non-firearm upper and the BATFE regulated machine gun lower
receiver. The firearm frame or receiver of the MIO is the MIO machine gun lower. These are
correct cJassifications by BATFE of the M 10 upper and lower as can be independently verified
by an application of the two methodologies presented in this report.

Step 2) Next determine the key operational features of the host machine gun as related
specifically to the function of firing a single cartridge The M 10 machine gun is an open bolt,
fixed firing pin design in which the bolt is driven forward by the recoil spring. The fixed
terminus for the recoil spring is in the M 10 lower.

Step 3) After careful study of the design of the upper submitted for classification. and of its
operation when assembled to the machine gun host lower. determine whether the submitted
upper is identical. functionaJly equivalent, or functionalJy non-equivalent to the non-firearm host
upper:

The Model 54RCCS is a gas operated upper for the MIO machine gun in caliber

7 .62x54R. The upper employs a rectangular housing that mounts a belt feed system, barrel and

1174

RIF

24

gas system, and contains the bolt, bolt carrier, recoil spring, and recoil buffer. The firing pin is
fixed to the bolt carrier and moves forward to strike the primer after the bolt enters battery. The
Model 54RCCS is open at its rear and must be attached to the MIO machine gun lower receiver
for the recoil spring to be put in tension. The fixed terminus for the Model 54RCCS recoil spring
is in the Ml 0 lower receiver.
Comparing the key operational features of the Model 54RCCS to those of the host Mto nonfirearm upper reveals one minor difference. While both uppers are open bolt, the Model 54RCCS
employs a firing pin fixed to the bolt carrier. The MIO host upper employs a firing pin fixed to
the bolt. The bolts of both uppers are driven forward by the recoil spring to fire a cartridge. Both
uppers rely on the fixed terminus for the recoil spring provided by the Ml 0 machine gun lower
receiver. Other features of the two uppers that are not key operational features are that the
Model 54RCCS employs belt feed while the MIO host upper employs magazine feed to provide
cartridges for successive shots. The Model 54 RCCS is gas operated after the first shot, the M 10
is recoil operated after the first shot.
An examination of the Model 54RCCS shows that it relies on the energy stored in the recoil
spring to fire a single shot. The bolt and bolt carrier of the Model 54RCCS translate within a
rectangular housing that also contains the recoil spring and recoil buffer. Since the rear of the
Model 54RCCS is open, it is not possible for the Model 54RCCS to fire when it is separated
from the MIO lower and manipulated as the designer intended. This is because the opening at
the rear of the Model 54RCCS makes it impossible to develop the required tension in the recoil
spring to close the bolt or activate the moveable firing pin. The absence of a fixed terminus in
the upper is a design feature shared by the Model 54RCCS and all other known MIO non-firearm
uppers. The MIO lower contains the fixed terminus for the recoil spring of the Model 54RCCS.
Thus an engineering analysis demonstrates that the Model 54RCCS cannot fire a single
shot in the absence of the MIO machine gun lower.
The inability of the Model 54RCCS to fire a single shot in the absence of the MIO lower was
demonstrated as part of the testing co-witnessed by BATFE, Historic Arms, and this author on
6110109 in Coweta, Georgia. On that occasion an attempt was made to cause the Model 54RCCS

to fire a round from a belt of ammunition in the absence of the M 10 machine gun lower. This
attempt did not result in a shot being fired nor in any forward movement whatsoever of the bolt
carrier or bolt. This was due to the inability to develop tension in the recoil spring after the
charging handle was pulled to the rear. Pulling the charging handle to the rear and releasing it
simply caused the recoil spring and buffer of the Model 54RCCS to protrude from the rear of the

1175

RIF

25
device and along with the bolt, bolt carrier, and firing pin, subsequently remain at rest. The
testing confirms the previous finding that the Model 54RCCS is unable to fire a single shot in
the absence of the host MlO machine gun lower.
The engineering analysis described earlier shows that the Model 54RCCS is not an identical
upper to the MIO non-firearm upper in that its key operational features do differ in a minor way
from those of the host MIO non-firearm upper. However, the examination does show that the
Model 54RCCS is a functionally equivalent upper for the MIO machine gun in that it will not
fire a single shot in the absence of the MIO lower. Thus the Model 54RCCS is functionally
equivalent to the host MlO non-firearm upper.
Step 4) If the submitted upper is identical to, or functionally equivalent to, the non-firearm host
upper, the correct classification of the submitted upper is that it is a non-firearm upper.
Based upon the methodology to classify machine gun uppers, the Model 54RCCS is
functionally equivalent to the host MlO non-firearm upper, thus the correct classification
of the Model 54RCCS is that it is a non-firearm upper for the MIO machine gun. The
Model 54RCCS is therefore not a firearm frame or receiver, it is not a short barreled rifle,
and it is not a machine gun.

H. Classification of the FTB Test device.


This report would be incomplete if it failed to examine the FTB test device itself as well as
the test procedure employed by FTB to arrive at their finding that the Model 54RCCS is a
machine gun. This section will demonstrate that the FTB test device consisting of a chain,
turnbuckle, and plate used by FTB during the testing on 4/ 15/09, and during the co-witnessed
testing by FTB and Historic Arms on 6/10/09, both in Coweta, Georgia, is the source of that
erroneous finding. The engineering analysis that arrives at this conclusion is confirmed by the
co-witnessed testing on 6/10/09, as well as by additional testing using the FTB test device
conducted by Historic Arms on 6/10/09 and witnessed by this author, and testing conducted by
the author on 6/24/09.
This section will first show that the FTB test device is itself 1) a firearm frame or receiver
when that test device is attached to a standard MI 0 non-firearm upper, and 2) a firearm frame or
receiver and machine gun when that test device is attached to any MIO or Ml 1/9 non-firearm
upper that has an integral feed system.

1176

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26

Beginning with the first statement above, observation shows that when the test device is
attached to the standard MIO upper, it encloses the upper in such a way that the FTB test device
closes the opening at the rear of the upper and allows the recoil spring within the upper to be put
in a state of compression when the cocking handle is pulled to the rear. Stated in engineering
terms, when the test device is attached to the standard MI 0 upper, it provides a fixed terminus
for the recoil spring contained in the upper. In doing so, the test device exactly duplicates the
most critical function of the MI 0 machine gun lower receiver, which is also to provide a fixed
terminus for the recoil spring contained in the upper. With the FTB test device attached to a
standard MI 0 non-firearm upper, the upper will fire a single shot if a cartridge is placed in the
chamber and the operating handle pulled to the rear. Therefore, from an engineering perspective,
when the FTB test device is attached to a standard MIO non-firearm upper, the test device is
itself a firearm frame or receiver since it functions as a simple but effective replacement for the
MlO machine gun lower receiver.

In this configuration the FTB test device satisfies the

definition of firearm frame or receiver at 27 CFR 4 78. I I in exactly the same manner that the
M 10 machine gun lower receiver satisfies this definition. However, the FTB test device is not a
machine gun because the assembly consisting of the test device attached to a standard M 10 nonfirearm upper is only able to fire a single shot without manual reloading.
A first test conducted by Historic Arms on 6/10/09 using the FTB test device consisted of
attaching the FTB test device to a standard MIO non-firearm upper, loading a single 45 ACP
cartridge in the chamber, and pulling the operating handle to the rear. The assembly consisting of
the test device attached to a standard MIO non-firearm upper fired one shot, confirming the
finding of the engineering analysis described above. Thus the FTB test device is itself a
firearm frame or receiver when it is attached to a standard MlO non-firearm upper.
As to the second statement earlier, that the FTB test device is itself a firearm frame or
receiver and a machine gun when it is attached to any MIO or Ml 1/9 non-firearm upper that has
an integral feed system, observation shows that the FTB test device encloses any MIO or Ml I/9
non-firearm upper that has an integral feed system in such a way that when the test device is the
attached to the upper, the test device closes the opening at the rear end of all of these uppers
thereby allowing tension to be developed in their respective recoil spring. That is, the FTB test
device provides a fixed terminus for the recoil spring contained in these uppers. With the test
device attac:;hed to any of these uppers, the upper will fire a single shot if a cartridge is placed in
the chamber and the operating handle pulled to the rear. Therefore, when attached to any of these
uppers, the test device is itself a firearm frame or receiver since it functions as a simple but

1177

RIF

27
effective replacement for the respective Ml 0 or M 1119 lower receiver. In this configuration the
FTB test device satisfies the definition of firearm frame or receiver at 27 CFR 4 78.11 in exactly
the same manner that the M 10 machine gun lower receiver satisfies this definition. Additionally,
any MIO or Ml 1/9 non-firearm upper that has an integral feed system to which the FTB test
device is attached will fire repeatedly if the feed system is loaded with ammunition and the
charging handle pulled to the rear and released. Therefore, from an engineering perspective,
when attached to any MlO or Ml 1/9 non-firearm upper that has an integral feed system, the FTB
test device is itself a firearm frame or receiver and a machine gun since it functions as a simple
but effective replacement for the respective MIO or Ml 119 machine gun lower receiver in
enabling fully automatic fire.
A second test conducted by Historic Arms on 6/10/09 consisted of attaching the FTB test
device to a Fleming SubCal Ml 1/9 caliber conversion upper having an integral magazine feed
system. This upper is correctly classified by the methodology to classify machine gun uppers
and BATFE as a non-firearm upper. After inserting a magazine containing multiple 22 Long
Rifle cartridges into the magazine well of the upper, the operating handle was pulled to the rear.
The assembly consisting of the test device attached to the SubCal upper fired repeatedly until the
magazine was empty, confirming the finding of the engineering analysis described above.
Although the SubCal upper was the only upper tested by Historic Arms on 6/ 10/09, we may infer
with certainty that the FTB test device will operate as a machine gun when attached to any other
MIO or Ml 1/9 non-firearm upper that has an integral feed device. Thus the FTB test device is
itself a firearm frame or receiver and a machine gun when it is attached to any Ml 0 or

Ml 1/9 non-firearm upper that bas an integral feed system.


The first two findings of this section show that the FTB test device consisting of a chain,
turnbuckle, and plate adds an extraordinary level of added operational functionality to any M 10
or Ml 1/9 non-firearm upper to which it is attached. In fact, from an engineering perspective,
there is no doubt whatsoever that the FTB test device is designed to provide an extraordinary
level of added operational functionality to any MIO non-firearm upper to which it is
attached. The added operational functionality provided by the FTB test device is, of course, to
supply a fixed terminus for the recoil spring by closing the opening at the rear of the non-firearm
upper. It is this opening on all MIO non-firearm uppers, including the Model 54RCCS, that
prevents them from firing a single shot in the absence of the MIO machine gun lower.
It is vitally important at this juncture to recall that in discussing the methodology to classify

machine gun uppers, a warning was given in section E, part E3, that

1178

RIF

28
the use of a test device or test method of any kind that adds operational functionality to the
upper (meaningfimctionality that enables, assists, or allows the upper to fire a single shot when
it could not do so by itself when manipulated as the designer intended) is a scientifically invalid
test procedure.
In light of the findings of this section with regard to the standard MIO non-fireann upper and
the Ml 1/9 SubCal non-fireann upper, there can be no doubt that when attached to these uppers
the FTB test device provides such an extraordinary level of added operational functionality, i.e.
the fixed tenninus, that any ensuing claim that either of these uppers is itself a firearm, a fireann
frame or receiver, or a machine gun is completely erroneous.
If we now examine the assembly consisting of the FTB test device attached to the Model

54RCCS, observation shows that the test device encloses the Model 54RCCS in such a way that
it closes the opening at the rear end of the Model 54RCCS thereby allowing tension to be
developed in the latter's recoil spring. That is, the FTB test device provides a fixed tenninus for
the recoil spring contained in the Model 54RCCS. This analysis is confinned by the cowitnessed testing on 6/ 10/09.
In one co-witnessed test, an attempt was made to cause the Model 54RCCS to fire a round
from a belt of ammunition by itself. As expected, this attempt did not result in a shot being fired
nor in any movement whatsoever of the bolt carrier or bolt of the Model 54RCCS due to the
inability to develop tension in the recoil spring after the charging handle was pulled to the rear.
Pulling the charging handle to the rear and releasing it simply caused the recoil spring and buffer
of the Model 54RCCS to protrude from the rear of the device and subsequently remain there at
rest. This test confinns that the Model 54RCCS will not fire at all in the absence of a fixed
terminus for its recoil spring.
In a 4/ 15/09 test, the Model 54 RCCS was attached to a MIO machine gun lower receiver
that had been stripped of all fire control parts. A short belt of ammunition was loaded into the
Model 54RCCS and the cocking handle pulled to the rear and released. As designed, the Model
54RCCS fired more than one shot in this arrangement. The fact that this occurred is not
surprising, as the stripped Ml 0 lower receiver contains the fixed tenninus that is required by the
Model 54RCCS in order to fire. In a simple test conducted by the author on 6/24/09 in
Thomasville, NC, a standard MIO non-firearm upper was attached to a stripped MIO machine
gun lower receiver, a magazine of ammunition was inserted into the MIO lower, and the cocking

1179

RIF

29
handle pulled to the rear. The MIO non-firearm upper fired repeatedly until the ammunition was

exhausted. In both tests, that with the Model 54RCCS and that with the standard M 10 nonfirearm upper, the sole function of the Ml 0 lower receiver is to supply the fixed terminus which
all MIO uppers require in order to fire singly or repeatedly. In analyzing these tests, we must
recall that all uppers for the MIO machine gun must logically be able to fire repeatedly when
attached to the Ml 0 machine gun lower receiver. The fact that the Model 54RCCS has this
capability should not surprise. The above analysis and 4/15/09 and 6/10/09 tests of the Model
54RCCS demonstrate conclusively that the Model 54RCCS cannot fire singly or repeatedly
unless it is attached to an Ml 0 machine gun lower or to some other device that specifically
provides the required fixed terminus for the recoil spring of the Model 54RCCS.
In a second co-witnessed test, the FTB test device was attached to the Model 54RCCS, a
short belt of ammunition was loaded, and the operating handle was pulled to the rear. As
expected, the Model 54RCCS fired more than once. This co-witnessed test demonstrates
conclusively that the FTB test device does indeed provide the critically important fixed terminus
needed to enable the Model 54RCCS to fire single or repeatedly.
From the above engineering analysis, the analyses with respect to the standard MIO nonfirearm upper and Mll/9 SubCal non-firearm upper, and from the finding that the FTB test
device is designed to add a fixed terminus to any MIO upper, including the Model 54RCCS, it is
evident that any claim that the Model 54RCCS is itself a firearm, a firearm frame or
receiver, or a machine gun that is based upon the use of the FTB test device is the outcome
of a scientifically invalid test procedure.
It should be noted that this last finding does not depend in any way upon agreement or lack
of agreement with the finding of section G that the Model 54RCCS is an Ml 0 non-firearm upper,
nor on agreement or lack of agreement with the findings that the FTB test device is itself a
firearm frame or receiver and/or machine gun in the configurations described earlier in this
section. The finding with regard to a scientifically invalid test procedure depends solely on the
fact that we are able to demonstrate that the test procedure employs a test device that adds
operational functionality to the device to which it is attached. Indeed, there can be no doubt that
the FTB test device provides an extraordinary level of added operational functionality to all M 10
uppers by providing a fixed terminus for their recoil springs.
In reviewing the analysis and testing discussed previously in this section, it is evident that
from an engineering perspective, the FTB test device and the stripped MlO machine gun lower
receiver are functionally identical devices when attached to the Model 54RCCS.

1180

In this

RIF

30
configuration the FTB test device satisfies the definition of firearm frame or receiver at 27 CFR
478.11 in exactly the same manner that the stripped MIO machine gun lower receiver satisfies
this definition. Therefore, when attached to the Model 54RCCS, the FTB test device functions
as a simple but effective replacement for the MIO machine gun lower receiver in enabling fully
automatic fire. Thus the FTB test device is a firearm frame or receiver and a machine gun
when it is attached to the Model 54RCCS.

I. Concluding remarks.

The principle findings of this report as developed in sections B, C, and G with regard to the
Model 54RCCS are, 1) that the Mode] 54RCCS is not a firearm in and of itself, 2) that the Model
54RCCS is not a firearm frame or receiver, and 3) that the Model 54RCCS is a non-firearm
upper for the MIO machine gun that is functionalJy equivalent to the standard MIO non-firearm
upper. These three findings are the result of engineering analysis and testing in sections B and
C, and they are also arrived at independently by applying the methodology to classify machine
gun uppers to the Model 54RCCS as described in section G of this report. These findings do not
depend in any way on the definition of firearm frame or receiver at 27 CFR 4 78.11, nor on the
interpretation of the intent of that definition as given in section D, because we know a priori that
the MIO lower receiver is the firearm frame or receiver. For this reason, the three findings do
not depend or derive from the methodology to classify machine guns described in section F, as
this methodology is not needed to classify the MIO machine gun. Lastly, these three findings in
regard to the Model 54RCCS do not in any way depend on or rely on the findings in section H
with regard to the FTB test device and test procedure.
The principle findings of section H with regard to the FTB test device are 4) that the FTB test
device consisting of a chain, turnbuckle, and plate is a firearm frame or receiver when attached
to a standard MIO non-firearm upper, 5) that the FTB test device consisting of a chain,
turnbuckle, and plate is a firearm frame or receiver and a machine gun when attached to any
MIO or Ml 119 non-firearm upper that has an integral feed system, 6) that the FTB test device
consisting of a chain, turnbuckle, and plate is designed to provide an extraordinary level of
added operational functionality to any MIO non-firearm upper, 7) that any claim that the Model
54RCCS is itself a firearm, a firearm frame or receiver, or a machine gun that is based upon the
use of the FTB test device is the outcome of a scientifically invalid test procedure, and 8) that the
FTB test device consisting of a chain, turnbuckle, and plate is a firearm frame or receiver and a
machine gun when attached to the Model 54RCCS.

1181

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31

These findings also deserve brief comment. None of these findings with regard to the FTB
test device depend in any way on agreement with the findings with regard to the Model 54RCCS.
While there may be disagreement over the specific legal characterization of the FTB test device
in findings 4, 5, and 8, there can be no disagreement among engineers or anyone else familiar
with the design of mechanical devices over finding 6, which relates to how the FTB test device is
designed to function, and does function when it is attached to the cited uppers. Lastly, for an
engineer, in regards to finding 7, it is hard to imagine a more badly flawed test procedure than
that created by attaching the FTB test device to the Model 54RCCS.
The classification of the Model 54RCCS upper by FTB as a machine gun is simply incorrect.
It should come as no surprise that absent a comprehensive methodology, FTB's reliance upon the

use of ad-hoc classification procedures, upon appearance, and upon the inadvertent or advertent
use of a test device that provides an extraordinary level of added operational functionality to any
Ml 0 upper results in an erroneous conclusion.

1182

RIF

CMPArmorv
(b) (6)

14June 2009

(b) (6)
(b) (6)

Dear (b) (6)

On 10 June 2009 at the Coweta County Firing Range I inspected one Historic Arms 54RCCS. It is
my opinion that the device in question is just that a device. It is no more a firearm than the original
upper that comes on a M10.
With the addition of one length of chain, turnbuckle and metal plate as demonstrated by the
(ATF) any MlO upper in any caliber would fire as demonstrated. It is my opinion that trying to fire the
54RCCS in this manor is very dangerous. There is no way to safely control the device. If while trying to
fire the device the conversion device (chain, tension bolt, metal plate) could move, slip internal parts
could eject themselves from the upper device at high speed causing injury.
During the inspection of the 54RCCS device measurements of the device were compared to a
Voltor semi-auto receiver and an original PKM GPM. The device in appearance as well measure is
consistent with a semi-auto not a full-auto. It is also my opinion that the device produced by Historic
Arms was derived from a semi-auto receiver. The dimensions of the left rail are the same as a semi
auto PKM but much larger than an automatic PKM GPM. The stamping itself is identical to a semi-auto.

During examination of a Flemming .22 caliber conversion made for the Mac and previously
approved by the ATF the Flemming caliber conversion preformed the same as the 54RCCS did with the
addition of the ATF's conversion parts (chain, tension bolt, metal plate) as a "machinegun". Without the

1183

RIP

parts provided by the ATF the Flemming caliber conversion also preformed the same as the 54RCCS it
did nothing.

Sincerely,

(b) (6)
Owner, CMP Armory

2411 Rhyne Rd
Dallas, NC. 28034

(b) (6)

1184

RIP

Case 1:08-cv-00136-TCW

Document 5

Filed 05/02/2008

Page 1 of 21

No. 08-136C
(Judge Wheeler)
IN THE UNITED STATES COURT OF FEDERAL CLAIMS

WILLIAM AKINS,
Plaintiff,
V.

THE UNITED STATES,


Defendant.

MOTION TO DISMISS

JEFFREYS. BUCHOLTZ
Acting Assistant Attorney General
JEANNE E. DAVIDSON
Director
MARK A. MELNICK
Assistant Director
Of COUNSEL:
MELISSA ANDERSON
ATF Office of Chief Counsel
Office of the General Counsel
Deputy Associate Chief Counsel
(Litigation)

May 2, 2008

MICHAEL N. O'CONNELL
Trial Attorney
Commercial Litigation Branch
Civil Division
U.S. Department of Justice
1100 L St., N.W., 8th floor
Washington, D.C. 20530
Tel: (202) 353-1618
Fax: (202) 514-8624
Attorneys for Defendant

1185

RIF

Case 1:08-cv-00136-TCW

Document 5

Filed 05/02/2008

Page 2 of 21

TABLE OF CONTENTS

DEFENDANT'S MEMORANDUM ................................................ I


QUESTIONS PRESENTED...................................................... I
STATEMENT OF THE CASE.................................................... 2
I.

Nature Of The Case................................................. 2

II.

Statement Of Facts ................................................. 2

ARGUMENT.................................................................. 5
I.

II.

Standards Of Review................................................ 5
A.

RCFC 12(b)(l)............................................... 5

B.

RCFC l2(b)(6) ............................................... 5

To The Extent That This Court Possesses Jurisdiction, Mr. Akins'


Claims Fail As A Matter Of Law .................... .. .. . .... . ..... . .. 6

A.

This Court Lacks Jurisdiction To Review ATF's Machinegun


Classification.. . . . . .. .... .. ........ ... . ... ................... 8

B.

ATF's Classification Of The Akins Accelerator As A


Machinegun Is Not A Public Use Of Private Property
That Requires Compensation . . ... . .... . ........ . .. . ... .. . . ... . . 9

C.

Mr. Akins Did Not Possess An Ownership Interest In The


Machineguns That Could Be Taken By The Government ... . ...... . . 11

D.

This Court Lacks Jurisdiction To Review Mr. Akins' Due


Process Claitn .... . ......... . .... . ... . ........ . ........... . .. 13

E.

This Court Does Not Possess Jurisdiction To Issue The Types Of


Declaratory Judgments And Injunctions That Mr. Akins Seeks .. .. .... 14

CONCLUSION ... . ............. . ... . ... . ..... . ... . ... . .................. . .... 15

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Case 1:08-cv-00136-TCW

Document 5

Filed 05/02/2008

Page 3 of 21

TABLE OF AUTHORITIES
CASES
Acadia Technology, Inc. v. United States,
458 F.3d 1327 (Fed. Cir. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 11
American Pelagic Fishing Co., L.P. v. United States,
379 F.3d 1363 (Fed. Cir. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Amerisource Corp. v. United States,
Slip op. (Fed. Cir. May 1, 2008) ........................................ 6, 7, 9
Bell Atlantic Coro. v. Twombly,
127 S. Ct. 1955 (2007).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Crocker v. United States,
125 F.3d 1475 (Fed. Cir. 1997).......................................... 8, 13
Daves v. Hawaiian Dredging Co.,
114 F.Supp. 643, 645 (D. Hawaii 1953) ........ ... ...... ... ........ ... .... . ... 6
Ferreiro v. United States,
350 F.3d 1318 (Fed. Cir. 2003) ............ . ..... .. ........ ... . . .... .. .... .. . 5
Fisher v. United States,
402 F.3d 1167 (Fed. Cir. 2005) .... . ... . ..... .. .... .. ......... . ........ . .... 6
Greenlee County, Ariz. v. United States,
487 F.3d 871 (Fed. Cir. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6
Hendler v. United States,
952 F.2d 1364 (Fed. Cir. 1991) ............ . ............... .. ............... 12
Holley v. United States,
124 F.3d 1462 (Fed. Cir. 1997). . .. . ... . ..... . ..... . .......... . ...... . .... .. 5
Houston v. United States,
60 Fed. Cl. 507 (2004).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
International Industrial Park. lnc. v. United States,
80 Fed. Cl. 522 (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

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Kanemoto v. Reno,
41 F.3d641 (Fed. Cir. 1994).............................................. 14
Lingle v. Chevron U.S.A., Inc.,
544 U.S. 528 (2005)... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Lucas v. South Carolina Coastal Council,
505 U.S. 1003 (1992) ..................................................... 7
M & 1 Coal Co. v. United States,
47 F.3d 1148 (Fed. Cir. 1995).............................................. 7
Maritrans Inc. v. United States,
342 F.3d 1344 (Fed. Cir. 2003) ............................................. 6
Miller v. United States,
67 Fed. Cl. 195 (2005)................................................... 14
Mitchell Anns, Inc. v. United States,
7 F.3d 212 (Fed. Cir. 1993).. . ......... . .... ... .... .. .......... .. .. . 11, 12, 13
Penn Central Transp. Co. v. New York City,
438 U.S. 104 (1978) .. . .... . ...... . . . ... .. .... ... ........ . ......... . .. 6, 7, 8
Redford v. Dept. of Treasury,
691 F.2d471 (lOthCir.1982)... . .... . ............ . ......... . ...... . ...... 11
Rith Energy, Inc. v. United States,
247 F.3d 1355 (Fed. Cir. 2001) . . .. . ....... . . .. ...... . ......... .. ......... .. 7
Rith Energy, Inc. v. United States,
270 F.3d 1347 (Fed. Cir. 2001)...... . . . ..... .. ..... .. ......... .. ..... . ... .. 9
Seay v. United States,
61 Fed. Cl. 32 (2004) .. .... .. .......... . ..... . ........ .. ....... ... ....... . 9
United States v. King,
395 U.S . 1 (1969).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

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STATUTES
S U.S.C. 701-706 ........................................................... 4
18 U.S.C. Chapter 44. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
18 U.S.C. 92l(a)(23) .......................................................... 3
18 U.S.C. 92l(a)(28)... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
18 u.s.c. 922(0)....................................................... 2, 10, 13
18 U.S.C. 924(a)(2)... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
26 U.S.C. Chapter 53.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 10
26

u.s.c. 5822. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

26

u.s.c. 5845 ...........................................................

26

u.s.c. 5845(b) .... . ...................................... .. ....... .. ....

2,3, 4
2, 3

28 U.S.C. 599A(b)(l)......................................... .. ........ . .... 10


28 U.S.C. 149l(b)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
28 C.F.R. 0 .130... .. ..... . .. . ............. . .... . .. . .. . ... . ..... . ....... .. ... 11
U.S. Const. amend. V, cl. 4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS


WILLIAM AKINS,

)
)

Plaintiff,

v.

)
)
)
)
)

THE UNITED STATES,


Defendant.

No. 08-136C
(Judge Wheeler)

MOTION TO DISMISS
Pursuant to Rules 12(b)(l) and (6) of the Rules of the United States Court of Federal
Claims ("RCFC"), defendant respectfully submits this motion to dismiss.
DEFENDANT'S MEMORANDUM
QUESTIONS PRESENTED
1.

Whether this Court possesses jurisdiction to review agency decisions pursuant to

the Administrative Procedure Act.


2.

Whether this Court must assume that the Bureau of Alcohol, Tobacco, Firearms

and Explosives acted lawfully in classifying the Akins Accelerator as a machinegun.


3.

Whether ATF acted pursuant to its police power in requiring Akins Group to

register the Akins Accelerator as a machinegun and barring it from selling the Akins Accelerator
to anyone other than law enforcement agencies.
4.

Whether Akins Group possessed an ownership interest in the Akins Accelerator

protected by the Fifth Amendment.

5.

Whether this Court possesses jurisdiction to declare statutes unconstitutional.

6.

Whether this Court possesses jurisdiction to consider due process claims.

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Whether this Court can issue injunctions in matters other than bid protests.
STATEMENT OF THE CASE

J.

Nature Of The Case


Plaintiff, William Akins, asserts a Fifth Amendment takings claim and seeks a

declaratory judgment that the actions of the Bureau of Alcohol, Tobacco, Firearms and
Explosives ("ATF") in classifying the Akins Accelerator as a machinegun, and prohibiting Akins
Group, Inc., from selling it to anyone other than law enforcement agencies, was arbitrary,
capricious, without factual support and contrary to law, as well as an injunction prohibiting ATF
from treating the Akins Accelerator as a machinegun. In the alternative, he seeks a declaration
that 18 U.S.C. 922(0) is unconstitutional on its face, and as applied to Mr. Akins. Finally, he
also seeks a determination that ATF failed to provide him with due process.
U.

Statement Of Facts
Mr. Akins is the successor-in-interest to Akins Group, Inc. ("Akins Group"), which

owned a patent to a device known as the Akins Accelerator. Complaint ("Co.") iMJ 4, 6. This
device, when added to a semi-automatic rifle, "increase[s] the cyclic rate at which the trigger ...
can be actuated to discharge the weapon." Co.~ 6. 1 After obtaining the patent for the Akins
Accelerator, Akins Group submitted the Akins Accelerator to A TF for a determination as to
whether ATF would consider the device a machinegun pursuant to the National Firearms Act
("NFA"), 26 U.S.C. 5845(b). Co. ii&. Section 5845(b) of the NFA provides:

Congress has defined a semi-automatic rifle as "any repeating rifle which utilizes a
portion of the energy of a firing cartridge to extract the fired cartridge case and chamber the next
round, and which requires a separate pull of the trigger to fire each cartridge." 18 U.S.C.
92l(a)(28).

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Machinegun.--The term "machinegun" means any weapon which


shoots, is designed to shoot, or can be readily restored to shoot,
automatically more than one shot, without manual reloading, by a
single function of the trigger. The term shall also include the frame
or receiver of any such weapon, any part designed and intended
solely and exclusively, or combination of parts designed and
intended, for use in converting a weapon into a machinegun, and
any combination of parts from which a machinegun can be
assembled if such parts are in the possession or under the control
of a person.
lnitially, in 2003, ATF determined that the Akins Accelerator was not a machinegun. Co. T! 15,
19. Thereafter, Akins Group began producing and selling the Akins Accelerator. Co., 23.
By letter dated November 22, 2006, ATF reversed its earlier ruling. Co. , 24 and Exhibit
("Ex.") H. ln the 2006 ruling, ATF noted that the definition of a machinegun contained in

5845(b) included not only a weapon which shoots automatically more than one shot, but also
conversion parts "designed and intended to convert a weapon into a machinegun, i.e., a weapon
that shoots automatically more than one shot." Co., Ex.Hat 2. ATF found that live fire testing
ofa Ruger 10/22 rifle with the Akins Accelerator attached "demonstrated that a single pull of the
trigger initiates an automatic firing cycle that continues until the finger is released, the weapon
malfunctions, or the ammunition supply is exhausted." Id. Accordingly, ATF held that the
Akins Accelerator must be considered a machinegun pursuant to the National Firearms Act and
the Gun Control Act. 2 _!fl at 2-3.
Pursuant to this ruling, Akins Group was required to pay applicable taxes and register the
machineguns in accordance with 26 U.S.C. 5822 and Title 27 of the Code of Federal
Regulations, or surrender them to the nearest ATF office. Co., Ex.Hat 3. Section 479.105(c) of

The Gun Control Act of 1968 adopts the definition of machinegun contained in the
National Firearms Act. See 18 U.S.C. 92l(a)(23).
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Title 27 of the Code of Federal Regulations allows for registration ofmachineguns "conditioned
upon and restricted to the sale or distribution of such weapons for the official use of Federal,
State or local governmental entities." Thus, ATF's ruling also prohibited Akins Group from
selling the Akins Accelerator to anyone other than Federal, state, and local law enforcement
agencies. Co., Ex.Hat 3.
On December 13, 2006, ATF issued ATF Ruling 2006-2. Co., Ex. I. The ruling stated
that ATF had been asked by several members of the firearms industry to classify devices that are
exclusively designed to increase the rate of fire of a semiautomatic fireann. Id. at 1. ATF
explained that these devices "once activated by a single pull of the trigger, initiate an automatic
firing cycle which continues until either the finger is released or the ammunition supply is
exhausted." Id. ATF held that these devices are a part "designed and intended solely and
exclusively, or combination of parts designed and intended, for use in converting a weapon into a
machinegun" as stated in the NFA, 26 U.S.C. 5845. Id. ATF held that these devices are
machineguns for purposes of the NFA, 26 U.S.C. Chapter 53, and the Gun Control Act of 1968,
18 U.S.C. Chapter 44. Id.
Akins Group requested that ATf reconsider its decision on February 6, 2007. Co., Ex. J.
ATF denied the reconsideration request on September 24, 2007. Co., Ex. K.
This lawsuit followed. To the knowledge of the undersigned counsel, Akins Group has
not challenged ATF's ruling in a district court pursuant to the Administrative Procedure Act,
5 u.s.c. 701-706.

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ARGUMENT
I.

Standards Of Review
A.

RCFC 12(b)(l)

In deciding a RCFC 12(b)( 1) motion, "determination of jurisdiction starts with the


complaint, which must be well-pleaded in that it must state the necessary elements of the
plaintifrs claim, independent of any defense that may be interposed." Holley v. United States,
124 F.3d 1462, 1465 (Fed. Cir. 1997) (citations omitted). When this Court's subject matter
jurisdiction is placed into issue, the non-moving party bears the burden of establishing
jurisdiction. International Industrial Park, Inc. v. United States, 80 Fed. Cl. 522, 526 (2008).
"Where a motion to dismiss challenges the truth of the jurisdictional facts alleged in the
complaint, the court is not restricted to the face of the pleadings, but may consider all relevant
evidence in order to resolve the factual dispute." Id. (citing Ferreira v. United States, 350 F.3d
1318, 1324 (Fed. Cir. 2003)).

B.

RCFC 12(b)(6)

The Tucker Act both confers jurisdiction on the Court of Federal Claims and waives the
sovereign immunity of the United States for claims for money damages founded on, inter alia,
acts of Congress. Greenlee County, Ariz. v. United States, 487 F.3d 871, 875 (Fed. Cir. 2007).
However, "[t]he Tucker Act itself does not create a substantive cause of action; in order to come
within the jurisdictional reach and the waiver of the Tucker Act, a plaintiff must identify a
separate source of substantive law that creates the right to money damages." Id. (quoting Fisher
v. United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005) ~bane in relevant part)).

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There are two different grounds upon which the Government may file a motion to dismiss
for failure to state a claim in a Tucker Act case: 1) failure to state a claim upon which relief can
be granted due to lack of a money-mandating source; and 2) failure to state a claim upon which
relief can be granted because the plaintiff is ultimately not entitled to recover money damages
under the statute. Greenlee, 487 F.3d at 876 (quoting Fisher, 402 F.3d at 1172-73).
As the Supreme Court recently explained in Bell Atlantic Com. v. Twombly, 127 S. Ct.
1955, 1965 (2007), the factual allegations pied in the complaint must be enough to raise a right to
relief above the speculative level. Thus, "when the factual allegations in a complaint, however
true, could not raise a claim of entitlement to relief, '"this basic deficiency should ... be exposed
at the point of minimum expenditure of time and money by the parties and the court."' Id. at
1966 (quoting 5 Wright & Miller 1216 at 233-34 (quoting Daves v. Hawaiian Dredging Co.,
114 F.Supp. 643, 645 (D. Hawaii 1953))).
II.

To The Extent That This Court Possesses Jurisdiction,


Mr. Akins' Claims Fail As A Matter Of Law
The Fifth Amendment provides, in pertinent part: "nor shall private property be taken for

public use, without just compensation." U.S. Const. amend. V, cl. 4. "The language of this
clause does not prohibit the government from taking private property altogether; rather, it
prohibits the government 'from forcing some people alone to bear public burdens which, in all
fairness and justice, should be borne by the public as a whole."' Maritrans Inc. v. United States,
342 F.3d 1344, 1351 (Fed. Cir. 2003) (quoting Penn Central Transp. Co. v. New York City,
438 U.S. 104, 123 (1978)). The "clause does not entitle all aggrieved owners to recompense,
only those whose property has been 'taken for a public use."' Amerisource Corp. v. United

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States, slip op. at 6 (Fed. Cir. May I, 2008). For example, "[p]roperty seized and retained
pursuant to the police power is not taken for a 'public use' in the context of the Takings Clause."
Id. at 7.
The Federal Circuit has developed a two-part test to evaluate claims that a Governmental
action constitutes a taking of private property without just compensation. Id. (citing M & J Coal
Co. v. United States, 47 F.3d 1148, 1153-54 (Fed. Cir. 1995). First, the Court must determine
whether a protected property interest existed, that is, whether the property interest "was a 'stick
in the bundle of property rights' acquired by the owner." M & J Coal, 47 F.3d at 1154 (quoting
Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1027 (1992)). Second, ifthe claimant
can establish the existence of such an interest, the Court must then determine whether the
Governmental action at issue constituted a compensable taking of that "stick." Id.
In determining whether any compensable taking occurred, "it is important to decide at the

outset whether the alleged taking was 'categorical' or not." American Pelagic Fishing Co., L.P.
v. United States, 379 F.3d 1363, 1372 (Fed. Cir. 2004) (citing Rith Energy, Inc. v. United States,
247 F.3d 1355, 1362 (Fed. Cir. 2001) (on rehearing)). The Supreme Court has explained that
there are two types of categorical takings. First, when the Government causes the owner to suffer
a permanent physical invasion of its property - no matter how small - the owner is entitled to just
compensation. Lingle v. Chevron U.S.A .. Inc., 544 U.S. 528, 538 (2005). Second, when
Governmental regulations "completely deprive an owner of 'all economically beneficial us[e]' of
her property," the owner is also entitled to just compensation. Id. (quoting Lucas, 505 U.S. at
1019 (emphasis in original)).

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"Outside these two relatively narrow categories ... regulatory takings challenges are
governed by the standards set forth in Penn Central Transp. Co. v. New York City, 438 U.S. 104,
... ( 1978)." Id. In Penn Central, the Supreme Court acknowledged that it has been unable to
identify any set formula for evaluating regulatory takings claims, but identified three factors of
primary importance: (I) the character of the Governmental action, (ii) the economic impact of the
action on the claimant, and (iii) the extent to which the action interfered with the claimant's
reasonable investment-backed expectations. Id. at 539. Each of these inquiries "aims to identify
regulatory actions that are functionally equivalent to the classic taking in which government
directly appropriates private property or ousts the owner from his domain." Id. Thus, each of the
"tests focuses directly upon the severity of the burden that government imposes upon private
property rights." Id.
A.

This Court Lacks Jurisdiction To Review ATF's Machinegun Classification

In his complaint, Mr. Akins seeks both judicial review of ATF's classification of the

Akins Accelerator as a machinegun, and an award of just compensation pursuant to the Fifth
Amendment. However, he cannot seekjudicial review of ATF's classification in this Court
because only district courts possess jurisdiction pursuant to the APA to review agency decisions.
Crocker v. United States, 125 F.3d 1475, 1476 (Fed. Cir. 1997) ("the [Court of Federal Claims]
correctly held that it lacks the general federal question jurisdiction of the district courts, which
would allow it to review the agency's actions and to grant relief pursuant to the Administrative
Procedure Act. .. "). Rather, the analysis in this Court must start from the premise that ATF
correctly classified the Akins Accelerator as a machinegun.
As the Federal Circuit has explained:
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[I]n a takings case we assume that the underlying action was lawful
and we decide only whether the governmental action in question
constituted a taking for which compensation must be paid. [The
appellant's] complaints about the wrongfulness of the [government
action] are therefore not properly presented in the context of its
takings claim. The only question before us is whether [the
appellant) was entitled to be compensated for the effects of that
action.
Acadia Technology. Inc. v. United States, 458 F.3d 1327, 1331 (Fed. Cir. 2006) (quoting Rith
Energy, Inc. v. United States, 270 F.3d 1347, 1352-53 (Fed. Cir. 2001) (on petition for
rehearing));~ also

Mitchell Arms, Inc. v. United States, 7 F.3d 212, 215 (Fed. Cir. 1993)

(identifying the issue upon review as "whether the presumptively correct actions of ATF in
suspending and revoking the permits constituted a compensable taking under the Fifth
Amendment."). Thus, Mr. Akins' complaints about the wrongfulness of ATF's actions have no
place in this action. The Court must assume that ATF acted in a lawful manner. The only issue
properly before the Court is whether ATF's actions are compensable pursuant to the Fifth
Amendment.
B.

ATF's Classification Of The Akins Accelerator As A Machinegun Is Not A


Public Use Of Private Property That Requires Compensation

As the Federal Circuit noted in Acadia, after the Court starts from the assumption that the
agency acted lawfully, the Court then must determine if the agency's actions are "the sort of
'public use' of private property for which the Takings Clause of the Fifth Amendment requires
compensation." Acadia, 458 F.3d at 1331. In Acadia, the Federal Circuit held that '"items
properly seized by the government under its police power are not seized for 'public use' within
the meaning of the Fifth Amendment"' and, therefore, a plaintiff whose property has been seized

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in such circumstances is not entitled to compensation. Id. at 1332 (quoting Seay v. United States,
61 Fed. Cl. 32, 35 (2004)); Amerisource, slip op. at 6-7.

In this case, Mr. Akins does not allege that ATF took the Akins Accelerators so that ATF
would have machineguns for its own use. Rather, he concedes that ATF was acting pursuant to,
among other statutes, 18 U.S.C. 922(0), which, with limited exceptions not relevant here, bans
the possession or transfer of machine guns. Co. iMI 1, 21, 25, 39. Exhibit B to the complaint
demonstrates that, by requesting a ruling, Mr. Akins himself commenced the process which
ultimately resulted in ATF classifying the Akins Accelerator as a machinegun.
Pursuant to 18 U.S.C. 924(a)(2), persons who knowingly violate the provisions of
18 U.S.C. 922(0), "shall be fined as provided in this title, imprisoned not more than 10 years,
or both." Once A TF ruled that the Akins Accelerator was a machinegun, Akins Group and Mr.
Akins (see

Co.~

32 concerning his personal possession of four Akins Accelerators) were

arguably in violation of a criminal statute, but the record demonstrates that ATF, given the
circumstances, provided Akins Group time to register or surrender the devices. ln prohibiting
Akins Group from possessing or transferring machineguns pursuant to 922( o ), ATF acted
pursuant to this Congressional ban on the possession and transfer of machineguns.
A TF has been granted authority by Congress to investigate "criminal and regulatory
violations of the Federal firearms ... laws." 28 U.S.C. 599A(b)(l). Pursuant to Department of
Justice regulations, ATF, among other things, possesses authority to:
(a) Investigate, administer, and enforce the laws related to alcohol, tobacco,
firearms, explosives, and arson, and perform other duties as assigned by the
Attorney General, including exercising the functions and powers of the Attorney
General under the following provisions of law:

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(1) 18 U.S.C. chapters ... 44 (related to firearms) ... ;


(2) Chapter 53 of the Internal Revenue Code of 1986, 26 U.S.C. chapter
53 (related to certain fireanns and destructive devices);
28 C.F.R. 0.130. Thus, when ATF required Akins Group to register or surrender the Akins
Accelerator and banned it from selling them to anyone other than law enforcement agencies, ATF
was acting pursuant to the police power conferred by Congress and the Attorney General and did
not seize the property for public use pursuant to the Fifth Amendment. Acadia, 458 F.3d 1327,
1331-33; Redford v. Dept. of Treasury, 691 F.2d 471, 473 (lO'h Cir. 1982) (appellant's "firearms
were seized and declared forfeited [by ATF] pursuant to statutory and administrative regulations;
therefore the government need not compensate him."). As such, Mr. Akins is not entitled to
compensation pursuant to the Fifth Amendment.
C.

Mr. Akins Did Not Possess An Ownership Interest In The Machineguns That
Could Be Taken By The Government

A plaintiff cannot assert a takings claim against the Government when it has voluntarily
entered into an area subject to pervasive Government control. Mitchell Anns, Inc. v. United
States, 7 F.3d 212, 216 (Fed. Cir. 1993). In Mitchell Arms, the plaintiff obtained pennits from
ATF to import assault rifles into the United States. Id. at 213-14. ATF subsequently issued a
news release announcing the suspension of pending applications for a P.,ennit. Id. at 214.
Following this announcement, Mitchell Anns contacted ATF and was told it could rely upon its
issued pennits. Id. Mitchell Anns then confinned an order of assault rifles with its foreign
supplier, which required Mitchell Anns to obtain an irrevocable letter of credit. Id. Soon
thereafter, ATF suspended the importation of assault rifles. Id. After the assault rifles arrived at
port facilities, the United States Customs Service refused entry for lack of a valid import pennit.
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Id. ATF later banned further importation of assault rifles. Id. Mitchell Arms then filed suit in
this Court, alleging that the suspension and revocation of its import permit constituted a
compensable taking pursuant to the Fifth Amendment. Id. at 215. The Court dismissed the
complaint and Mitchell Arms appealed to the Federal Circuit. Id.
At the court of appeals, Mitchell Arms argued that ATF took either its firearms or its
permits. It argued that it entered into a contract with its foreign supplier in reliance upon the
issued permits, which gave rise to a reasonable investment-backed expectation protected by the
Fifth Amendment. Id. The Federal Circuit rejected these arguments and affirmed this Court's
decision.
The court of appeals explained that the "chief and one of the most valuable characteristics
of the bundle of rights commonly called 'property' is 'the right to sole and exclusive possession the right to exclude strangers, or for that matter friends, but especially the Government.'"
Mitchell Arms, 7 F.3d at 215 (quoting Hendler v. United States, 952 F.2d 1364, 1374 (Fed. Cir.
1991 )). The court held "'that enforceable rights sufficient to support a taking claim against the
United States cannot arise in an area voluntarily entered into and one which, from the start, is
subject to pervasive Government control."' Id. at 216 (quoting Mitchell Arms. Inc. v. United
States, 26 Cl. Ct. 1, 5 ( 1992)). The court explained that the reason "'enforceable rights sufficient
to support a taking claim' cannot arise in such an area is that when a citizen voluntarily enters
such an area, the citizen cannot be said to possess 'the right to exclude."' Id. (quoting Hendler v.
United States, 952 F.2d 1364, 1374 (Fed. Cir. 1991)). The "reason the citizen cannot be said to
possess 'the right to exclude' is that the citizen is in an area subject to government control." Id.
When Mitchell Arms voluntarily entered into the firearms import business, it "knowingly
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plac[ed] itselfin the governmentally controlled arena of firearms importation under the Gun
Control Act. ..." Id. Thus, the Federal Circuit held that the expectation by Mitchell Arms that it
could sell assault rifles in the United States was not a property interest protected by the Fifth
Amendment. Id.
The facts in this case are on point with Mitchell Arms but weigh even more strongly in
favor of the Government. Mr. Akins does not allege that at any time relevant to this action that
he or Akins Group was entitled to possess and/or transfer unregistered machineguns. Thus, Mr.
Akins would have known when he was creating the Akins Accelerator and when he obtained his
patent in 2000 (Co.~ 6) that, if ATF determined that the Akins Accelerator was a machinegun,
Akins Group would not be able to possess any Akins Accelerators without registering them as
machineguns and paying the applicable tax, and it would not be able to sell them to anyone other
than law enforcement agencies. Just as the plaintiff in Mitchell Arms "knowingly plac[ed] itself
in the governmentally controlled arena of firearms importation under the Gun Control Act. ... "
(Mitchell Arms, 7 F.3d at 216), Mr. Akins knowingly placed himself in the Governmentally
controlled arena of machinegun manufacturing and sales. Akins Group could not have possessed
the right to exclude the Government from this business. Thus, like the plaintiff in Mitchell
Arms, Akins Group did not possess a property right protected by the Fifth Amendment and Mr.
Akins, therefore, is owed no compensation.
D.

This Court Lacks Jurisdiction To Review Mr. Akins' Due Process Claim

In count three of his complaint, Mr. Akins alleges that ATF violated his due process

rights. However, as the Federal Circuit has held, the due process clause of the Fifth Amendment

-13

1202

RIF

Case 1:08-cv-00136-TCW

Document 5

Filed 05/02/2008

Page 19 of 21

does not obligate the Government to pay money damages and cannot serve as a basis for
jurisdiction in this Court. Crocker v. United States, 125 F.3d 1475, 1476 (Fed. Cir. 1997).
E.

This Court Does Not Possess Jurisdiction To Issue


The Types Of Declaratory Judgments And Injunctions That Mr. Akins Seeks

In paragraph one, the introduction to his complaint, Mr. Akins requests that the Court

declare 18 U.S.C. 922(0) unconstitutional on its face and as applied to Mr. Akins, "with an
appropriate injunction." In the body of his complaint, Mr. Akins does not elaborate upon any
facts that he alleges demonstrate why this statute is unconstitutional, nor does he use the word
unconstitutional. In his demand for relief on page 7 of the complaint, he seeks a declaration that
the Akins Accelerator is not a machinegun and requests an injunction prohibiting ATF from
treating the Akins Accelerator as a machinegun.
In United States v. King, 395 U.S. I, 5 (1969), the Supreme Court held that the Court of
Claims did not possess declaratory judgment jurisdiction. Although Congress has since provided
this Court with limited jurisdiction to issue declaratory judgments, such as in bid protest actions
(28 U.S.C. 149l(b)(2)), the Supreme Court's holding in King otherwise remains valid
precedent.

y., Houston v. United States, 60 Fed. Cl. 507, 510 (2004).

Similarly, although the

Court may issue injunctions in bid protest actions, the Court does not otherwise possess
jurisdiction to issue injunctions. Kanemoto v. Reno, 41 F.3d 641, 644-45 (Fed. Cir. 1994).
Likewise, the Court does not possess jurisdiction to declare statutes unconstitutional. Miller v.
United States, 67 Fed. Cl. 195, 199 (2005) (citing King, 395 U.S. at 5).

- 14-

1203

RIF

Case 1:08-cv-OO136-TCW

Document 5

Filed 05/02/2008

Page 20 of 21

CONCLUSION
For the foregoing reasons, defendant respectfully requests that the Court dismiss
plaintiff's complaint for lack of subject matter jurisdiction, or failure to state a claim.

Respectfully submitted,
JEFFREY S. BUCHOLTZ
Acting Assistant Attorney General
JEANNE E. DAVIDSON
Director

s/ Mark A. Melnick
MARK A. MELNICK
Assistant Director

OF COUNSEL:
MELISSA ANDERSON
ATF Office of Chief Counsel
Office of the General Counsel
Deputy Associate Chief Counsel
(Litigation)

May 2, 2008

s/ Michael N. O'Connell
MICHAEL N. O'CONNELL
Trial Attorney
Commercial Litigation Branch
Civil Division
U.S. Department of Justice
1100 L St., N.W., 8th floor
Washington, D.C. 20530
Tel: (202) 353-1618
Fax: (202) 514-8624
Attorneys for Defendant

1204

RIF

Case 1:08-cv-00136-TCW

Document 5

Filed 05/02/2008

Page 21 of 21

CERTIFICATE OF SERVICE
I certify under penalty of perjury that on this 2nd day of May, 2008, a copy of the
foregoing "DEFENDANT'S MOTION TO DISMISS" was filed electronically. I understand that
notice of this filing will be sent to all parties by operation of the Court's electronic filing system.
Parties may access this filing through the Court's system.

sf Michael N. O'Connell

1205

RIF

IN THE UNITED STATES DISTRICT COURT


FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
UNITED STATES OF AMERICA,

Plaintiff,
CASE NO.

vs .
1:09-CV-0192-GET
ONE HISTORIC ARMS MODEL 54RCCS
"7.62X54R CALIBER CONVERSION
SYSTEM" MACHINEGUN, SERIAL NO. V1,

Defendant.
PLAINTIFF'S RESPONSE TO CLAIMANT HISTORIC ARMS'
MOTION FOR SUMMARY JUDGMENT

Plaintiff files this response to Claimant's Motion for Summary


Judgment.

Claimant's motion must be denied because Claimant has

failed to show by a

preponderance of the evidence that

it

is

entitled to summary judgment.

Burden of Proof

Claimant has failed to show that it is entitled to summary


judgment.

Summary judgment is appropriate if the moving party

establishes that there is no genuine issue as to any material fact


and that he or she is entitled to judgment as a matter of law.
Carlin Communications, Inc. v. Southern Bell Tel. & Tel. Co., 802
F.2d 1352, 1356 {11th Cir. 1986); Fed. R. Civ. P. 56{c).

Further,

the court must view all evidence and inferences to be drawn from it

1206

RIF

'

14.:..

in a light most favorable to the party opposing the motion.

Property involved in a violation of the NFA is subject to


seizure and forfeiture to the United States.

26 U.S.C. 5872(a).

The provisions of the Customs Laws (Title 19, U.S.C.


govern

the

seizure,

summary

and

judicial

1602-1618}

forfeiture,

condemnation of property by ATF for violations of the NFA. 1

u.s.c.

and

See 18

3051(c) (l} . 2

With the passage of the Civil Asset Forfeiture Reform Act


of 2000 ("CAFRA"), Pub. L. No. 106-185, 114 Stat. 202 (2000),
Congress mandated a fundamental change in the government's
initial burden of proof in most civil judicial forfeiture actions
that were commenced on or after the statute's effective date of
August 23, 2000.
In many forfeiture actions under Federal law
the government now bears the burden of first establishing, by a
preponderance of the evidence, that defendant property is subject
to forfeiture.
See 18 U.S.C. 983(c) (1). However, the
provisions of CAFRA do not apply to any civil forfeiture action
commenced under the Internal Revenue Code of 1986, such as the
present case. See 18 U. S.C. 983 {i} {2} {B}; 26 U.S.C. 5872 (a) .
2

Section 305l(c} (1), enacted as part of the Homeland


Security Act of 2002, provides:
(1)
Except as provided in paragraphs (2) and (3), and
except to the extent that such provisions conflict with the
provisions of section 983 of title 18, United States Code,
insofar as section 983 applies, the provisions of the
Customs laws relating to(A)
(B)
(C)
(D}

the seizure, summary and judicial forfeiture,


and condemnation of property;
the disposition of such property;
the remissions or mitigation of such
forfeiture; and
the compromise of claims,
2

1207

RIF

Once the government establishes probable cause, the claimant


must prove by a preponderance of the evidence that the property was
not related to a violation of federal law.
U.S. v.

$242.484 at 1160; U.S. v.

Carrell,

19

u.s.c.

1615; See

252 F.3d 1193, 1201

(11th Cir. 2001) (discussing pre-CAFRA forfeiture in the context of


a narcotics case) .

If the claimant offers such evidence,

the

government may offer \\probative admissible evidence to contest the


claimant's proof."

United States v. $129.727.00 U.S. Currency, 129

F . 3d 486, 492 (9th Cir. 1997) .


When the evidence in the present case is viewed in a light
most favorable to Plaintiff, it is clear that Claimant has failed
to rebut,

by a preponderance of the evidence,

the government's

showing that the property was related to a violation of federal


law.

As set forth below (and in Plaintiff's Motion for Summary

Judgment), the Defendant Historic Arms 54RCCS vl (the "Defendant")


was properly classified a machinegun under the National Firearms
Act

( \\NFA") ,

26 U.S . C.

Chapter 53,

by the Bureaus of Alcohol,

shall apply to seizures and forfeitures incurred, or alleged


to have been incurred, under any applicable provision of law
enforced or administered by the Bureau of Alcohol, Tobacco,
Firearms, and Explosives.
Section 3051's predecessor statute, 31 U.S.C. 9703(0) (repealed
by the Homeland Security Act Of 2002), similarly provided that
the Customs Laws governed all seizures and forfeitures by ATF.

1208

RIF

Tobacco,

Firearms and Explosives

{"ATF")

and was not properly

registered by Claimant as required by law.


ARGUMENT

Claimant's

argument

classified must fail.

that

the

Defendant

was

improperly

Claimant's arguments are legal in nature;

there are no material facts in dispute in this case .

The parties

agree on what the Defendant is and how it functions.

Claimant is

urging the Court to act as a Monday morning quarterback and secondguess the ATF's application of the NFA to Defendant .
Claimant

provides

no

compelling

classification should be disturbed;

reason

that

However,
ATF's

the

Claimant merely espouses a

difference in opinion with the ATF's classification.


Plaintiff will
either

under

the

show that

relevant

Claimant's motion can be denied

law

or

by

examining

the

flaws

in

Claimant's application of the NFA to Defendant.


I.

Claimant Fails to Show that the Classification of


Defendant Was Arbitary and Capricious

Claimant states that ATF's classification of Defendant was


arbitrary and capricious, but relies primarily on classifications
of devices other than the Defendant in making its argument.

This

argument fails because the Eleventh Circuit has recently held that
the ATF has

the power

to

"'reconsider and rectify'"

what

it

considered to be a classification error. Akins v. United States,

1209

RIF

312 Fed. Appx. 197 (11th Cir. 2009) 3 (en bane) (quoting Gun South v.
Brady, 877 F . 2d 858, 862-63 (11th Cir. 1989).
In March 2002,

William Akins

submitted a

device named the "Akins Accelerator" to FTB .

prototype of

FTB tested Akins '

prototype and determined that it was not a "machinegun" under the


NFA.

Akins,

at 198.

In November 2006, ATF noticed the Akins

Accerlator advertised on a
addition,

several

regarding Akins'

website as

individuals

"approved"

contacted

ATF

by ATF.

with

In

questions

device and similar devices were submitted for

classification.

Because

of

these

events,

ATF

re-opened

the

classification and, after further evaluation of a production model,


advised Akins that his device had been reclassified as a machinegun
and that the prior classification was deemed "overruled." Id. at
199 .
The re-classification occurred in December 2006, nearly five
years

after

the

ATF

had

issued

its

original

non-firearms

classification of a prototype of the Akins Accelerator, and after


appellant

William

Akins

had

mass-produced

distributed the Akins Accelerator.

and

commercially

Akins at 198-199 .

The Eleventh Circuit affirmed the district court's granting of

An extensive discussion of Akins can be found in


Memorandum of Law in Support of Plaintiff's Motion for Summary
Judgment, Doc . 43, Exhibit 2, pp. 9-11.

1210

RIF

summary judgment in favor of the United States.

In doing so, the

court set forth the deferential standard by which it would review


ATF's classification of the Akins Accelerator:
Under the Administrative Procedures Act, we defer to the
decision of the Bureau unless it 11 (1) exceeds the
Bureau's
statutory
authority,
(2)
violates
a
constitutional right, or (3) constitutes an 1 arbitrary 1
or 'capricious action, ' or 'an abuse of discretion' or an
action 'otherwise not in accordance with law. 1 11 Based on
that deferential standard, we "cannot substitute our
judgment for the Bureau's judgment, but rather, we must
presume" that the actions of the government agency are
11
valid[.] 11
Id. at 200 (internal citations omitted) (quoting Gun South, Inc. v.
Brady, 877 F . 2d 858, 861 (11th Cir. 1989)).

The court held that

ATF acted within its discretion when it classified Akins' device


and that ATF's decision to reconsider its 2002 classification was
not arbitrary and capricious.

Akins at 200.

In addition, though Akins did not claim that ATF was acting
outside of

its

statutory authority,

the

court

noted

that

the

classification was made pursuant to the powers delegated to ATF by


Congress to interpret the NFA .

Id. at 198.

The relevance of Akins to the present case could not be more


clear, 4 nor could the contrasts be more telling.

In Akins, the ATF

It is particularly curious that Claimant did not so much


as cite Akins in its Motion for Summary Judgment, as not only is
Akins arguably the most relevant binding precedent available, but
appellant William Akins was represented by John R. Monroe, lead
counsel for Claimant in this case.
6

1211

RIF

reversed its prior ruling on the exact device upon which it had
ruled some four years prior.

In the present case, Claimant is

asking the Court to look at ATF' s

classifications of different

devices to overturn the classification of the Defendant.

ATF is free

to

"reconsider and rectify"

device at a

later date,

If the

classification of a

it may clearly classify a

new device

differently from some other device, even if that other device bears
some similarity to the Defendant.
Further, it is worth noting that in Akins, the court upheld
the re-classification even though William Akins had relied upon the
initial classification in producing, manufacturing and distributing
his device for commercial sale,

and once the re-classification

occurred,

turn

Akins

was

forced

to

over

all

copies

Accelerator in his possession, ending commercial sales.

of

the

I!!.:.. at

199.

The present case compares favorably to Akins in this regard,


as Claimant states that the Defendant is the only copy of the
HA54RCCS ever built.

Doc. 14, Claimant's Responses to Plaintiff's

Interrogatories, no. 15 (attached as Exhibit 1).


states that

Claimant further

he submits his creations to ATF to "make sure there

will be no regulatory issues with them."


Material Facts, , 9.

Claimant's Statement of

Thus, unlike William Akins, Claimant cannot

claim reliance on a prior ATF classification because there was no

1212

RIF

prior classification.

Further, Claimant cannot deny knowing that

there was a possibility that ATF would render a


adverse

to his

commercial

classification

interests because he has

had prior

disagreements with ATF classifications of his devices.

Savage

Depo., p. 58, lines 9-15.


Claimant's reliance on other ATF classifications also fails
because those involved in the heavily-regulated firearms industry
knowingly expose themselves to the risk of adverse administrative
rulings.

Mitchell Arms v. United States,

Cir. 1993).

7 F.3d 212, 216

(Fed.

Even where the economic effect of those rulings is

detrimental, there is no right to compensation, particularly where


the affected party has evinced a knowledge of the regulatory scheme
and its potential pitfalls.
619,

624

(Ct.

Claimant's

Akins v. United States, 82 Fed. Cl.

2008) 5

Cl.

president,

who

Thus,
states

it
in

reasonably
,

of

his

follows

that

Statement of

Material Facts that he is aware of the potential for "regulatory


issues"

with

his

designs,

must

have

known when

he

submitted

Defendant to ATF that there was a distinct possibility that the ATF
would

classify

the

Defendant

as

machinegun.

Any

reliance

Prior to filing his case in the United States District


Court for the Middle District of Florida (which gave rise to the
Eleventh Circuit opinion) , William Akins sought relief in the
Court of Federal Claims. The Court of Federal Claims granted the
United States' motion to dismiss Akins' case.

1213

RIF

Claimant may have placed on the classifications of the Suomi,


Calico or Fleming rulings was misplaced.
Akins does not stand alone.
the

Supreme

Court

down,

has

A long line of precedent, from

found

that

"[a] n

interpretation is not instantly carved in stone


to

engage

in

interpretations
basis."

informed
and

the

rulemaking,
wisdom of

must

initial

. . [an] agency,
consider

its policy on

varying

continuing

Chevron v. Natural Resources Defense Council,

837, 863-4

agency

467 U . S.

(1984); see also Motor Vehicles Mfrs. Assn. v. State

Farm, 463 U.S. 29, 42 (1983) (recognizing that agencies must be able
to adapt their rules and policies to the circumstances).

Thus, the

law is clear that prior agency decisions do not bind the agency in
making subsequent decisions.
The Eleventh Circuit has recognized that an agency may reverse
a prior regulatory decisions in other contexts.

For instance, in

BellSouth Telecomms. v . MCimetro Access, 425 F.3d 964. 970 (11th


Cir. 2005), the issue was the Federal Communication Commission's
unilateral change in its regulatory scheme, but in the context of
the present case, it is another example of the deference given to
agency decisions, even where that decision is reversal of course.
When compared to the facts in Akins, which were less favorable
to the government, there is simply no reasonable argument that the
classification of Defendant was arbitrary and capricious.

Thus,

1214

RIF

-- - -

~--

-----------

..

Claimant has failed to show that it is entitled to summary judgment


and its motion must be denied for this reason.

10

1215

RIF

tt-

(b) (6)

J.~~-\ .

(b)(3) - 26 U.S.C. 6103


~

.....
April ]5, 2003

Bureau of Alcohol. Tobacco, and F'trcarms


Technology Branch
Washington DC 20226

(b)(3) - 26 U.S.C. 6103

All cm: bu bceri taken to prohibit the instlhtion of the orisinal RPD Fire Contro1 pans.

ko modification arc made to the SWO ,M-IJ 9MM.bost ~~exception of ooo .l75
diamdcr bole bc:q drilled through the rear plato to aBaw fur tho op rod iDsertion (similar
to the ..slow fire'" conversion for the M11). The butt stt>Ck ~ CANN9T ~
attachcdtotfl9uppcrwilboPt a SWDM-Jl 9MM~-bcinguSedutha"MA1N
rccelVl!r mltloB componeat:
- .

".; ' J '

.....
,'I
1'

(b) (6)

~-

1216

RIP

.t

~.;.

DEPARTMEHTOFTHETREASURY
OUREAU OF ALCOHOL. TOBACCO AND l"IREARMS

DOZ t l AON
9030SO:(b) (6)
3311/2003- 435

(b)(3) - 26 U.S.C. 6103

......
Cear

(b)(3) - 26 U.S.C. 6103

..
(b)(3) - 26 U.S.C. 6103

,,
Aa defined in Nstiona1 Firea.rms Act {!WA). per 26
u.s.c. sed:ion 5845 (b), the t~ .Q,a~~negun" means
any weapoii which shoots, is desi~ to~Bhoot, or can
~,

. ...,,~

...

...4

..... --:

:.t
.

....:ff

...
J

..

-.AT,,.Taii:AS.aov

1217

RIP

(b)(3) - 26 U.S.C. 6103

be readily restored to shoot automatically more than


one shot, without manual reloading, by a single
function of the trigger.
The term shall also include
the frame or recei-ver of any such weapon, any part
designed and in~eneiecl -solely and exclusively~ or
combinatioQ of par~s , deeigned f~ which a ma.chinegun
can be assembled ' if such parts are in possession or
under the control of a person.

Since the su.bmitt~ sample has been determine&. to be a


machinegun and ie not :reghtered in acco:cdanee with
NFA provisions# we ~:re um!>le to return it unti:l:-J-yo\t
complete

en ATF FO:l:m 2,

NOtice Of Firearms

,.,

'

Manufactured or lQilOrte'ci.
Please provide our B~an~ with instructions ccncern:ig

disposition of the .J.~M~thin 60 days, or it will ht!


considered abandoned ~ v~ll be ~~ed of in

accordance with the ;nee88


,.
. - of the Government.
~

1218

RIP

-3(b)(3) - 26 U.S.C. 6103

We thank you for your sample and regret that the


foregoing could net have been more favorable to your
inquiry.
Sincerely yours,

.t

Chief,

~1 ~ ..j,

..

~;

..,
.-

...

.1

,..
r.'

..,
'

it. , ~ ..
I

; :'

, .....

~
'l ..j

.,

l,

~I

.t

..

1~ ' '

,,...,
_.,

t"

..

.-,. .

..

.... -

-'

:.i.;,~

1219

RIP

--,... .

( --

U.S. Department of Justice

Bureau of Alcohol, Tobacco,


Firearms and Explosives

FEB - I 2005

www.:itf.~D\'

903050:(b) (6)
331112005-028

(b) (6)
Dear (b) (6)
This is in reply to your correspondence dated June 14. 2004, to the Bureau of Alcohol, Tobacco,
Firearms and Explosives (ATF), concerning the production of a clone of an Ml 1 upper receiver
Your correspondence, which includes a
previously manufactured by a(b) (6)
drawing. pictures, and a "letter of approval," dated March 13, 2003, from ATF's Firearms
was forwarded to FfB at its new location in
Technology Branch (FTB) to (b) (6)
Martinsburg. WV.
In your enclosed drawing, you depict an unmodified lower receiver and a new upper receiver.
The proposed new upper receiver will extend in front of the original receiver and will contain a
mount for a 71-round Suomi drum magazine. You will use the original bolt and barrel for this
project. The SWD-typc machinegun receiver will not be changed.
Assuming that you lawfully own a SWD Ml 1/9 type machinegun, you should be aware that ATF
has previously determined that a semiautomatic variant of a machinegun, which (1) fires from
the open bolt position, and (2) employs a fixed firing pin, is a ''machinegun" as defined in the
National Firearms Act (NFA), 26 U.S.C., Section 5845(b). Therefore, assembly of this type of
weapon would be a violation of the NFA.
Based on an evaluation of the description provided, FTB finds that your proposed modifications
to a registered machinegun would not be prolu"bited under the provisions of either the Gun
Control Act of 1968 (GCA) or the NFA.
A magazine housing from an original Suomi sub-machinegun could be used provided that you do

not make or possess a new machinegun receiver.


Any other modifications that result in making or possessing a new machinegun receiver would
be unlawful. You should be aware that changing the lower receiver in any way could result in
the manufacture of a new machinegun, which is prohibited under the GCA (18 U.S.C. Chapter
44). Further, the NFA (26 U.S.C. Chapter 53) prohibits tampering with the serial number in any

1220

RIP

. 1

DEPARTMENTOFTHETREASURY
BUREAU OF ALCOHOL, TOBACCO ANO FIREARMS
WASHINGTON, DC 20226

903050: (b) (6)


3311/2003-268

ASSISTANT

DIRECTOR

MAR 1 3 2003

(b)(3) - 26 U.S.C. 6103


Dear

(b)(3) - 26 U.S.C. 6103

This is in reply to your letter, with submitted


drawings, concerning the modification of a registered
machinegun that you own. You ask whether you can make
a new upper receiver and attach it to your registered
machinegun.
You enclosed a drawing showing changes you would like
to make to your registered SWD Mll/9 submachinegun,
serial number (b)(3) - 26 U.S.C. 6103 You propose to make a new
upper receiver, which will extend in front of the
original receiver and will contain a mount for a 71
round Suomi drum magazine. The original bolt and
barrel will be used. The SWD machinegun receiver will
not be changed.
Based on the desc~iption provided, the proposed
modifications to your registered macninegun would not
be prohibited under the provisions of the Gun Control
Act of 1968 or the National Firearms Act. A magazine
housing from an original Suomi submachinegun could be
used provided that you do not make or possess a new
machinegun receiver.
Any other modifications, which result in making or
possessing a new machinegun receiver, would be
unlawful. You should be aware that changing the lower
receiver in any manner could result in the manufacture

www.ATF.TREAS.GOV

1221

RIP

-2-

(b)(3) - 26 U.S.C. 6103

of a new machineglln, which is prohibited under Title


18, United States Code (U.S . C.), Chapter 44. Further,
Title 26, U.S.C . , Chapter 53 prohibits tampering with
the serial number in any manner. Title 26, U.S.C.,
section 586l(g) states, it shall be unlawful for any
.person to obliterate, remove, change, or alter the
serial number or other identification of a firearm
required by this chapter.

- - . .......,._. . -

We trust that the foregoing has been responsive to


your inquiry. If we can be of !illY further assistance,
please contact us.
~

Sincerely yours,

\j

(__

~~

Curtis H.A. Bartlett


Chief, Firearms Technology Branch

--

--- -

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

1222

------

RIP

,._
.

1223

-.

....

RIF

....

U.S. Department of Justice

Bureau of Alcohol, Tobacco,


Frrearms and Explosives

Martinsburg, WV

25401

www.atf.gov

903050:RV
3311/2007-076

NOV 03 2006
Mr. Len Savage
President
Historic Arms, LLC
1486 Cherry Road
Franklin, Georgia 30217
Dear Mr. Savage:
This is in response to your inquiry to the Firearms Technology Branch (FTB), Bureau of
Alcohol, Tobacco, Firearms and Explosives (ATF), regarding whether FTB intends to reclassify
your design of an Ml 0- or Ml I-type upper receiver modified to accept a Calico-type helical
magazine.
Our Branch issued a classification of this modification in our June 7, 2005, letter to you (please
refer to #331112005-440). We found that, apart from feeding from a Calico magazine, the design
features of the original Ml O/Ml I had not changed significantly. Therefore, the FTB
classification provided in #2005-440 will not be re-evaluated.
We trust the foregoing has been responsive to your inquiry. Please contact us if we can be of any
further assistance.
Sincerely yours,

~u.

~ Sterling Nixon

?7-zf'

Chief, Firearms Technology Branch

1224

RIF

U.S. Department of Justice

Bureau of Alcohol, Tobacco,


Firearms and Explosives

903050:RDC
331112005-440

JUN - 7 2005
V.'WW.llf.gov

Mr. Len Savage


President
Historic Arms LLC
1486 Cherry Road
Franklin, GA 30217
Dear Mr. Savage:
This refers to your letter of May 25, 2005, to the Firearms Technology Branch (FTB), Bureau of
Alcohol, Tobacco, Firearms and Explosives (ATF), regarding the legality of modifying an MIOor Ml I-type upper receiver to accept a Calico-type helical magazine.
As you are aware, the Gun Control Act of 1968 (GCA), 18 U.S.C. 92l(a)(3), defines the term
"firearm" to include the following:

... (A) any weapon (including a starter gun) which will or is designed to or may be readily
converted to expel a projectile by the action of an explosive; (BJ the frame or receiver of any
such weapon; (CJ any firearm mujjler or silencer; or (DJ any destructive device. Such term does
not include an antique firearm.
Further, the National Firearms Act (NFA), 26 U.S.C. 5845(a), defines "firearm" as... (1) a shotgun having a barrel or barrels ofless than 18 inches in length, (2) a weapon made
from a shotgun ifsuch weapon as modified has an overall length of less than 26 inches or a
barrel or barrels of less than 18 inches in length; (3) a rifle having a barrel or barrels of less
than 16 inches in length; (4) a weapon made from a n'jle ifsuch weapon as modified has an
overall length ofless than 26 inches or a barrel or barrels of less than 16 inches in length; (5)
any other weapon, as defined in subsection (e), (6) a machinegun; (7) any silencer (as defined in
18 U.S.C. 921); and (8) a destructive device. The term "firearm" shall not include an antique
firearm or any device (other than a machinegun or destructive device) which, although designed
as a weapon, the ... [U.S. Attorney General} ... finds by reason ofthe date of its manufacture,
value, design, and other characteristics is primarily a collector's item and is not likely to be used
asa weapon.

1225

RIF

-2-

Mr. Len Savage


Based on the FTB evaluation of the submitted drawing, it appears that the proposed
Ml O/Ml 1-type upper receiver assembly will be redesigned to accommodate a Calico helical
magazine mounted atop the receiver. In addition, you state the firearm's original semiautomatic
function will not be altered.
The upper receiver of an Ml O/Ml 1 type :firearm does not constitute the frame or receiver of a
fireann, as that term is defined in 27 CFR Section 478.11(formerly178.11). Based on the
information provided, the manufacture of a modified MIO/Ml I-type upper receiver that is
redesigned to accept a Calico helical magazine doeS' not constitute the manufacture of a frame or
receiver of a :firearm. The proposed upper receiver is not subject to either 18 U.S.C. Chapter 44
(the GCA) or 26 U.S.C. Chapter 53 (the NFA).
This determination is relevant to the item as proposed. Any alterations or modifications to the
design would subject the item to further review.
We trust the foregoing has been responsive to your inquiry. Please contact us if we can be of any
further assistance.
Sincerely yours,

S:l{

Sterling Nixon
Chief, Firearms Technology Branch

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RIF

U.S. Department of Justice


Bureau of Alcohol, Tobacco.
Firearms and Explosives

MAR 2 1 Z005
903050:(b) (6)
331112005-257
-.;,-w.:uf.gov

(b) (6)
Dear (b)

(6)

This refers to your correspondence of February 16, 2005, to the Fireanns Technology Branch
(FTB}, Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) regarding the legality of
manufacturing an extended upper receiver assembly, capable of accommodating a Suomi
71-round drum magazine for the purposes of attachment to your registered M-11/NINEmm 9mm
sub-machinegun.

.-.

As you may be aware, the Gun Control Act of 1968 (GCA), 18 U.S.C. 921(a)(3), defines the
term "firearm" to include" ... (A) any weapon (including a starter gun) which will or is designed to or may be readily
converted to expel a projectile by the action ofan explosive: (BJ the frame or receiver of any
such weapon; (C) any fireann mujJler or silencer; or (DJ any destructive device. Such tenn does
not include an antique fireami."
Also, the National Firearms Act (NFA), 26 U.S.C. 5845(a), defines "firearm" as follows:
" ... (I) a shotgun having a barrel or barrels ofless than 18 inches in length; (2) a weapon made
from a shotgun ifsuch weapon as modified has an overall length of less than 26 inches or a
barrel or barrels ofless than 18 inchei in length; (3)a ri;1e having a barrel or barrels oj less
than 16 inches in length; (4) a weapon made from a rifle ifsuch weapon as modified has an
overall length ofless than 26 inches or a banel or barrels of less than 16 inches in length; (5)
any other weapon, as defined in subsection (e); (6) a machinegun; (7) any silencer (as defined in
18 U.S.C. 921); and (8) a destructive device. 171e tenn 'fireami 'shall not include an antique
firearm or any device (other than a machinegu11 or destructive device) which, although designed
as a weapon, the ...[u.S. Attorney General} finds by reason of the date of its manufacture, value,
design, and other characteristics is primarily a collector's item and is not likely to be used as a
weapon."

From the submitted photographs and drawing, it appears that the proposed upper receiver
assembly is an elongated version of an original M-11/NINEmm-type upper receiver. The
submitted photographs depict an extended rectangular-shaped upper receiver incorporating an

1227

RIP

(b) (6)

M-11/NINEmm-type barrel and bolt assembly. The unique design of the magazine well and
latch mechanism, located forward of the forward takedo'Wll pin, allows the attachment of a
71-round drum magazine for a Finnish Suomi sub-machinegun.
Based on the information provide~ FTB finds that the manufacture of an extended
M-11/NINEmm-type upper receiver does not constitute the manufacture of a frame or receiver of
a firearm. The proposed upper receiver is not subject to either the GCA or the NFA. This
determination is relevant to the item as proposed. Any alterations or modifications to the design
would subject the proposed receiver assembly to further review.
We thank you for your inquiry and trust that the foregoing has been responsive.
Sincerely yours,

t/~

(b) (6)
S

Cruel, Firearms Technology Branch

1228

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:i-

II

II

...
'

)~:~~~ l
j

. I'
I

'

{' i _,/

'i{

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Case 1:09-cv-00192-GET

Document 38-3

Filed 10/28/2009

Page 1 of 15

IN THE UNITED STATES DISTRICT COURT


FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
UNITED STATES OF AMERICA,
Plaintiff,

)
)
)

v.

No. 1:09-CV-00192-GET

ONE HISTORIC ARMS MODEL 54RCCS


)
"7.62X54R CALIBER CONVERSION
)
SYSTEM" MACHINE GUN, SERIAL NO. VI, )
)

DefundanL

CLAIMANT'S STATEMENT OF MATERIAL FACTS

~ CJaimant Historic Arms, LLC, is a Special (Occupational) Taxpayer


("SOT") and Federal Firearms Licensee ("FFL"). Second Deel. of Lennis
Savage,~

3.

v2. In those capacities, CJaimant is permitted under federal law to manufacture


and sell firearms and NFA firearms (including machineguns). 26 U.S.C.
5851, 5852, 5861 .
Because machineguns manufactured since May 19, 1986 are banned for
general citizen ownership [18 U.S.C. 922(0); 27 U.S.C. 479.105], the
owner of a "pre-ban" machinegun _h5! an incentive to make his existing
.machinegun as versatile as possible. 2"d Savage Deel.,~ 4.

~ For

that reason, it is popular among machinegun owners to equip the

machineguns with caliber conversion devices, so that the machineguns may


be used to shoot a variety of ammunition calibers.
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For example, the


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"MAC" type machinegun, originally made for .380 ACP, 9 mm and .45
ACP (i.e., "pistol caliber") ammunition, could, through the use of a caliber
conversion device, shoot rifle calibers as well. Id.,

if 5.

/ 5. On or about April 21, 2008, Lennis Savage, President of Claimant,


completed the manufacture of Defendant. Id., if 6.
(

6. The purpose of Defendant is to act as a caliber conversion device for the


owner of a MAC type machinegun. Id.,

if 7.

7. When installed on a MAC machinegun, Defendant converts the caliber of


the MAC to 7.62X54R, a rifle cartridge commonly used in many former
Eastern Bloc firearms and for which surplus ammunition is readily
available. Id., if 8.
8. While working on Defendant, Savage was in contact with the Bureau of

NMf=

Alcohol, Tobacco, Firearms and Explosives ("ATF") Firearms Technology


Branch ("FTB") personnel. Id., if 9.

J Savage, an experienced manufacture and designer of many firearm systems


and components, submits most of his inventions to FTB for classification
to make sure there will be no regulatory issues with them. Id., if 10.
IO.During Savage's discussions with John Spencer, Chief of the FTB, Spencer
expressed concern that Claimant was making a caliber conversion device

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that would make a pistol-caliber MAC machinegun into a rifle caliber


machinegun.

Id. , ~

I I.

I I .Savage asked Spencer what his specific concern was, and Spencer said he
did not like the idea of a device such as Defendant being available for sale
without a background check, thus being lawfully sold "off the back of a
pickup truck at a gun show."

Id.,~

12.

12.To address Spencer's concerns, Savage suggested that the Defendant could
have a barrel shorter than I 6 inches attached to it and might therefore fit
the technical definition of a short-barreled rifle. Id.,

13.

I3.Spencer expressed enthusiasm for Savage's suggestion, and asked Savage


"How soon can you get it here?" 1 Id. ,~ 14.
I4.Savage quickly completed the manufacture of Defendant with a barrel
length of just less than 16 inches , registered it as a short-barreled rifled,
and sent it to FTB for examination as Spencer requested. Id.,

~~

15-16.

/s.on June I 0, 2008, Spencer wrote Savage a letter, advising Savage that FTB
had classified Defendant as a machinegun. Id.,

17 and Exh. A.

-.Spencer told Savage that Savage would have to register Defendant again,
but as a machinegun. Id.,

18.

Claimant understands that there may be a dispute of fact over whether Spencer
responded as Savage testifies he did. If there is such a dispute, it is not material to
this Motion.
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.j 17.Because registration forms must be signed under oath, and because Savage
said he could not honestly state that Defendant is a machinegun, he
2

refused. Id.,

it 19.

18.Plaintiff "tested" Defendant in an effort to see if Plaintiff could convert


Defendant into a machinegun. To do so, Plaintiff attached to Defendant an
aluminum plate, some plastic ties, and some duct tape. When attempting to
make Defendant fire in this configuration, Plaintiffs crude contrivance

failed. 2nd Savage Deel., it 20, Exh. A, pp. 6-7.

19.Stepping up its game, Plaintiff tried once more, but this time replacing duct
tape and plastic ties with a steel turnbuckle ("tensioning bolt"). With the
aluminum plate, length of steel chain, and steel turnbuckle installed on
Defendant, Plaintiff was able to cause Defendant to fire automatically in an
uncontrolled fashion. Id..

21.

20.0nce initiated, the firing sequence could not be stopped (there being no
trigger to release), [Id., i122] although an FTB employee claimed he could
have stopped the firing sequence by grabbing and twisting the ammunition
belt. Deposition of Max Kingery, p. 110.

Claimant should stress that even registration of Defendant as a short-barreled rifle


required some reliance on ATF classifications with which Claimant disagrees.
Claimant believes Defendant should be treated the same as other, similar devices
that ATF has classified as not being firearms at all (GCA or NFA).
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21. The same FTB employee noted that Defendant had to be physically held
down onto a surface while firing it with Plaintiffs parts attached, in order
to prevent Defendant from "fly[ing] back and the barrel . . . pointing
upward." Id., p. 111 .

j
NN\\=-

22.Plaintiff also demonstrated that Defendant would fire (as designed) by


mounting Defendant on a MAC machinegun. Id.,

if 23 .

..)23. Webster's New Collegiate Dictionmy defines "weapon" as "an instrument


of offensive or defensive combat: something to fight with."
24.As Plaintiff admits, Defendant is incapable of shooting as manufactured:
Q. ls the Defendant as it sits here today in the same condition that tt
was when received by FTB?
A. It appears to be with the exception of this slight damage ...

Q. Does that mean in the condition that the Defendant's in right


now, sitting on this table, it's not capable of firing?
A. Correct.
Q. You'd have to do something to it?
A. Yes, sir.
Q. Okay. There' s nothing you could do to it with what's sitting
there right now to make it fire?
A. No, sir.
Kingery Depo., pp. 104-106.
/ is.In the instant case, Savage designed and built Defendant himself.

He

described in detai I in his deposition the process that he used and the intent
behind it:

He had a customer who intended to purchase a quantity of

caliber conversion devices for MAC machineguns to use 7 .62X54R


ammunition. Deposition of Lennis Savage, pp. 88-130.
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26.Witnesses for Plaintiff admit that Defendant does indeed convert the
caliber of a MAC machinegun to 7.62X54R:
Q. And then when you fire the combination of the Defendant and
the MAC lower, you're firing at 7.62X54R?
A. Yes, sir.
Q. And when you fire the combination of a MAC lower with a
MAC upper, you're firing at the caliber of that particular MAC
upper, is that correct?
A. Yes, sir.
Kingery Depo., p. 140.
27.Claimant demonstrated that Defendant cannot fire at all with its existing

component parts, and Plaintiff agrees. 2 00 Savage Deel.,

ii

25; Kingery

Depo., pp. 104-106.

/g.The MAC, being one of the most widely held machineguns in private
hands, has generated perhaps the greatest variety of caliber conversion
devices.

2nd

Savage Deel.,~ 26.

) 9.rn particular, Plaintiff has classified the Fleming caliber conversion device,
which converts the caliber of the MAC machinegun to .22, as not a firearm
under either the GCA or the NFA. Id.,

Jo.

The Fleming mounts on a MAC machinegun similarly to the way


Defendant does. Id.,

if 27, Exh. B.

ii 28.

1. The Fleming also can be caused to shoot automatically using exactly the
same plate, chain, and turnbuckle Plaintiff used to cause Defendant to
shoot automatically (a fact that Claimant demonstrated using Plaintiffs
parts). Id.,

1:09-CV-OO192-GET

if 29.
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A2.The Fleming uses an open bolt and fixed firing pin.

Page 7 of 15

Id.,~ 27, Exh. B.

33.Plaintiff approved the Fleming conversion device in part because it will 11ot

work i11 a closed-bolt ha111111erjfred version of a MAC. Id.


34.Defendant likewise will not function properly in a closed-bolt hammerfired version of the MAC. 2rnl Savage Deel., 130.
35.Plaintiff observed in its letter to Mr. Fleming that the Fleming conversion
device uses an open bolt. Plaintiff concluded in its letter that the Fleming
conversion device is 1101 a firearm under either the GCA or the NFA. Id.
36.The MAC factory upper is not classified by Plaintiff as a firearm at all
under the GCA or the NFA. Id.,

~31.

37.A MAC upper uses an open bolt and fixed firing pin. Id., 132.
38.If Plaintiffs same plate, chain, and turnbuckle are installed on a MAC
upper, the MAC upper will fire. Id., 133.
39.Plaintiff classified as not being a firearm under either the GCA or NFA a
modification of a MAC upper to accept a 71-round Suomi drum magazine.

Id. , 135, Exh. C.


40.The modified MAC upper still uses an open bolt and fixed firing pin. Id., if
36.
41.If Plaintiffs plate, chain, and turnbuckle were installed on the "Suomi"
upper (i.e., a MAC upper with the Suomi drum magazine attached), the
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upper would behave identically with Defendant - an entire 71-round


magazine would fire automatica11y.

id., iJ 3 7.

42.Plaintiff classified as not a firearm under either the GCO or the NFA a
Calico magazine mounted onto a MAC machinegun upper. Id.,

iJ 38, Exh.

D.
43.The modified upper (with Calico magazine attached) still uses an open bolt
and a fixed firing pin, yet it is not a machinegun according to Plaintiff. Id.,

if 39.
44.If Plaintiffs plate, chain, and turnbuckle were installed on a Calico/MAC
upper, the MAC upper would fire automatically until the ammunition was
exhausted. Id., iJ 40.
45.Starting with the design objective of building a MAC machinegun caliber
conversion device, Savage determined that it would be expeditious to use
component parts of other guns that already are configured for the new
caliber. Id.,

iI 41.

46. To that end, Savage began with the receiver for a VLTOR semi-automatic
rifle that fires 7.62X54R ammunition. Id., iJ 42.
47 .A VLTOR semiautomatic receiver differs in two distinct ways from the
fu11y automatic PKM receiver. First, there is a "machinegun bolt blocking
bar" attached to the floor of the VLTOR receiver. The purpose of the bar is
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to prevent the use of a machinegun bolt carrier in the VLTOR rifle. It


should be noted that both the VL TOR rifle and the PK.M machinegun use a
machinegun bolt carrier, but the bolt carrier is modified in the VLTOR rifle
(with Plaintiffs blessing). One such modification is the removal of the
sear surface on the semiautomatic version. The sear surface catches on the
blocking bar, thus preventing continuous operation (and fully automatic
firing).

Id.,~

45.

48.The other feature of the VL TOR receiver is that one of the two rails (there
is one on each side of the receiver) on which the bolt carrier rides is
oversized compared to the other.

A stock machinegun bolt carrier has

identically-sized rail slots that mate with the machinegun receiver rails.
The machinegun bolt carrier will not fit into the rails of the VLTOR rifle.
The semi-automatic bolt carrier, which has a modified rail on one side to
mate with the VLTOR receiver, will fit into the semi-automatic receiver.
Thus, in order to convert a VLTOR receiver into a fully automatic PKM
receiver, one must defeat both the blocking bar and the widened side rail.

Id.,

,146.

49.Savage only used a severed remnant of the VLTOR receiver for its
ammunition feeding capabilities.

Id.,~

47.

50.The floor of the receiver would have interfered with the ability to attach the
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finished caliber conversion device onto a MAC machinegun.

For this

reason, Savage used a plasma cutter to remove most of the floor of the
VLTOR rifle receiver, thus destroying the receiver and making it no longer
useful as a receiver at all (in either a semiautomatic VLTOR rifle or fully
automatic PKM). Id., if 49.
SI.In the process of removing most of the floor of the VLTOR receiver, the
blocking bar discussed earlier was removed (because it is attached to the
floor of the complete receiver and the floor was mostly removed).
Significantly, however, the side rails of the VLTOR receiver were not
disturbed - even after Savage cut away the floor of the receiver, it still was
impossible for a machinegun bolt carrier to fit into the severed remnant of
the VLTOR receiver. Id.. if 50.
52. The severed remnant of the VLTOR receiver was not usable as a receiver
at all at that point, because critical parts would fall out, other critical parts
cannot be attached, so even if the side rails had been modified to
accommodate a machine bolt carrier, the bolt carrier would not stay in and
the severed remnant would not have been a machinegun. Id., if 53.
53 .After cutting the floor out of the receiver, Savage attached the remnant to
many other parts, including a portion of a MAC machinegun upper (which
is a part that the ATF does 11ot consider to be a machinegun). Jd. , if 51 .
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54.By the time Savage finished welding many other parts onto the severed
VLTOR semiautomatic receiver remnant, the severed remnant no longer
was physically capable of attaching to either a VLTOR rifle or to a PKM
machinegun. In fact, by design, Defendant can only be attached to one
firearm type of which Claimant is aware: a MAC machinegun. Id.,

if 52.

55.The basic tenet of Plaintiffs "once a machinegun always a machingun"


theory is that once a device is properly classifiable as a machinegun, that
classification remains with the device no matter what modifications may be
made (short of destruction).

Plaintiff admitted as much when FTB

Assistant Chief Richard Vasquez testified that Defendant was beyond


"rehabilitation" and had to be destroyed to make it no longer a
machinegun. Deposition of Richard Vaszquez, pp. 86-87.
56.Plaintiffs fact and expert witness, FTB Firearms Examination Officer Max
Kingery deposed that a VLTOR semiautomatic rifle receiver, cut
essentially identically as the one Claimant used in constructing Defendant,
is a machinegun. Kingery Depo., pp. 149-150.
57 .He based this conclusion on the fact that the floor had been cut out of the
receiver so that the receiver no longer contained the blocking bar. Id.
58.The severed receiver remnant did, however, contain the widened side rail
and would not accept a machinegun bolt carrier nor function at all as a
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firearm. Id.. p. 152.


59.Kingery also (incorrectly) identified a standard semiautomatic UZI channel
(a GCA firearm receiver) as a machinegun, because the receiver did not
have a blocking bar. Id., p. 168.
60.An UZI channel is the receiver of the famous Israeli firearm. UZis are
made in both semiautomatic and fully automatic versions.
Deel.,~

2"d Savage

54.

61.The problem with Kingery's determination is that ATF does not classify
UZI channels as machineguns. Id.,

55.

62. They are readily purchasable throughout the country for well under $100.
Id. ,~

56.

63.A blocking bar (which also is readily available throughout the country)
must be installed in the channel when manufacturing a fully functional
semiautomatic UZI, but the channel without a blocking bar is just a
semiautomatic receiver (according to ATF classifications).

Id.,~

57.

64. The fact is that all VLTOR semiautomatic rifle and UZI receivers, at some
point in their manufacturing process, do not yet possess a blocking bar
(which is a part that must be installed into the receiver).

Id.,~

59.

65.The ATF does not take the position that these receivers are machineguns at
an early stage in the manufacturing process and then not machineguns at
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the conclusion of this process (when blocking bars have been installed).
Id.,~

60.

66.Claimant complied with the registration regulation by filing a Form 2 on


April 21, 2008 with the information requested, and Plaintiff received the
Form 2 the same day (Claimant sent it by fax).

Id.,~

61, Exh. F.

67.Plaintiff accepted the Form 2 and returned it as accepted to Claimant,


despite the fact that Plaintiff had Defendant in its possession and knew in
advance what the general design of Defendant was. Id.
68.Mr. Spencer, the FTB Chief suggested in internal emails that Plaintiff
modify Defendant's registration unilaterally to reflect the fact that it is
machinegun. Deposition of John Spencer, p. 24.
69.Mr. Spencer deposed that he was told by counsel that his suggestion could
not be implemented because Form 2s are submitted under oath and the
government could not change someone's sworn statement. Id., pp. 24-26.
70.0n July 7, 2009, Plaintiff issued an "Open Letter to All Federal Firearms
Licensees," advising them that devices can be GCA or NFA firearms yet
not be rifles, shotgun, or handguns. Until this Open Letter was issued, it
was not clear that Plaintiff took that position. Thus, because Claimant
intended for Defendant to be mounted in a MAC machinegun that is fired
from the shoulder, Claimant assumed Plaintiff would classify Defendant as
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a rifle. It is now clear that Plaintiff does not. 2"d Savage Deel., ~63, Exh.
G.
71.No other person or entity has a claim or interest in Defendant, and Plaintiff
does not dispute that Claimant is Defendant's true owner.

2nd Savage

Deel., 62.

Isl John R. Monroe


John R. Monroe
Attorney at Law
9640 Coleman Road
Roswell, GA 30075
678-362-7650
john.monroe l@earthlink.net
H.M. Whitesides, Jr.
N.C. Bar 13151
228 East Boulevard, Suite 200
Charlotte, North Carolina 28203
Telephone: (704) 376-6455
Facsimile: (704) 332-5010
hmwhitesides@whitesideslaw.com
ATTORNEYS FOR CLAIMANT

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CERTIFICATE OF SERVICE
I certify that on October 28 , 2009, I filed the foregoing using the ECF system, which
automatically wilJ email a coy to:
Mr. G. Jeffrey Viscomi, Esq.
Jeffrey. viscomi ri11usdoj.!!OV
Mr. Harry R. Foster, Esq.
Harry. fostcrfa. atr. uov

Isl John R. Monroe


John R. Monroe

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IN THE UNITED STATES DISTRICT COURT


FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
UNITED STATES OF AMERICA,
Plaintiff,

)
)
)

v.

)
)
ONE HISTORIC ARMS MODEL 54RCCS
)
)
"7.62X54R CALIBER CONVERSION
SYSTEM" MACHINE GUN, SERIAL NO. Vl, )
)
)
Defendant.

No. 1:09-CV-00192-GET

SECOND DECLARATION OF LENNIS SAVAGE

Pursuant to 28 U.S.C. 1746, Lennis Savage states as follows:


1. I am over the age of 18 and otherwise competent to make this declaration,
which I make of my own knowledge.
2. I am the President of Historic Arms, LLC, the Claimant in this action.
3. Historic Arms, LLC, is a Special (Occupational) Taxpayer ("SOT") and
Federal Firearms Licensee ("FFL").
4. The owner of a "pre-ban" (also called "transferable") machine gun has an
incentive to make his existing machine gun as versatile as possible.
5. For that reason, it is popular among machine gun owners to equip the
machine guns with caliber conversion devices, so that the machine guns may
be used to shoot a variety of ammunition calibers. For example, the "MAC"

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type machine gun, originally made for .380 ACP, 9 mm and .45 ACP (i.e.,
"pistol caliber") ammunition could, through the use of a caliber conversion
device, shoot inexpensive .22 caliber ammunition and other rifle calibers.
6. On or about April 21, 2008, I completed the manufacture of Defendant.
7. The purpose of Defendant is to act as a caliber conversion device for the
owner of a MAC type machine gun.
8. When installed on a MAC machine gun, Defendant converts the caliber of
the MAC to 7.62X54R, a rifle cartridge commonly used in many fonner
Eastern Bloc guns and for which surplus ammunition is readily available.
9. While working on Defendant, I was in contact with the Bureau of Alcohol,
Tobacco, Fireanns and Explosives ("ATF") Fireanns Technology Branch
("FTB") personnel.
IO.As an experienced manufacture and designer of many fireann systems and
components, I submit most of my inventions to FTB for classification to
make sure there will be no regulatory issues with them.
I I .During my discussions with John Spencer, Chief of the FTB, Spencer
expressed concern that Claimant was making a caliber conversion device
that would make a pistol-caliber MAC machine gun (i.e., a "sub machine
gun") into a rifle caliber machine gun.
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12.1 asked Spencer what his specific concern was, and Spencer said he did not
like the idea of a device such as Defendant being available for sale without a
background check, thus being lawfully sold "off the back of a pickup truck
at a gun show."
13.To address Spencer's concerns, I suggested that the Defendant could have a
barrel shorter than 16 inches attached to it and might therefore fit the
technical definition of a short-barreled rifle.
14.Spencer expressed enthusiasm for Savage's suggestion, and asked Savage
"How soon can you get it here?"
15.1 quickly completed the manufacture of Defendant and shortened the barrel
to just under 16 inches.
16.1 promptly sent the required ATF fonn to the NFA Branch of ATF to
register the Defendant as a short barreled rifle. I also sent Defendant to FTB
for inspection as Spencer had requested.
17.0n June 10, 2008, Spencer wrote me a letter, advising me that FTB had
classified Defendant as a machine gun. A true and correct copy of that letter
is attached as Exhibit A.
18.Spencer told me that I would have to register Defendant again, but as a
machine gun.
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19.Because registration forms must be signed under oath, and because I said I
could not honestly state that Defendant is a machine gun, I refused.
20.Plaintiff "tested" Defendant in an effort to see if Plaintiff could convert
Defendant into a machine gun. To do so, Plaintiff attached to Defendant an
aluminum plate, some plastic ties, and some duct tape. When attempting to
make Defendant fire in this configuration, Plaintiffs crude contrivance
failed.
21. Stepping up its game, Plaintiff tried once more, but this time replacing duct
tape and plastic ties with a steel turnbuckle ("tensioning bolt"). With the
aluminum plate, length of steel chain, and steel turnbuckle installed on
Defendant, Plaintiff was able to induce Defendant to fire automatically in an
uncontrolled fashion. I have witnessed multiple video recordings made by
Plaintiff showing Defendant fired this way, with the firing uncontrolled.
22. The firing was "uncontrolled" because, lacking any ki11d of trigger

mecllanism, Plaintiff had to initiate the firing sequence by pulling and then
releasing the bolt handle. Once initiated, the firing sequence could not be
stopped (there being no trigger to release).
23 .I also have observed Plaintiff demonstrate that Defendant would fire (as
designed) by mounting Defendant on a MAC machine gun.
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24.Defendant must be mounted on a specific host firearm (i.e., a MAC machine


gun) or, as Plaintiff demonstrated with its plate, chain, and turnbuckle,
modified in order to be capable of shooting.
25. While testing Defendant at the Coweta County Sheriff's firing range on June
10, 2009, in the presence of several ATF employees, I demonstrated that
Defendant cannot fire at all with its existing component parts.
26.The MAC, being one of the most widely held machine guns in private hands,
has generated perhaps the greatest variety of caliber conversion devices.
27.Plaintiff has classified the Fleming caliber conversion device, which
converts the caliber of the MAC machine gun to .22, as "nothing" (meaning

it is not a firearm under either the GCA or the NFA). A copy of Plaintiffs
May 17, 1993 letter to William H. Fleming (the "Fleming Letter")
containing that classification is attached as Exhibit B.
28. The Fleming mounts on a MAC machine gun similarly to the way Defendant
does.
29.The Fleming also can be converted into a machine gun using exactly the
same plate, chain, and turnbuckle Plaintiff used to convert Defendant into a
machine gun (a fact that I demonstrated using Plaintiffs parts). Manually

s
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filed separately is a CD containing a video in which I demonstrate the firing


of a Fleming converted into a machine gun using Plaintiffs parts.
30.Defendant will not function properly in a closed-bolt hammer-fired version
of the MAC.
31. The factory MAC upper is not classified by Plaintiff as a firearm at all under
the GCA or the NFA.
32.A MAC upper uses an open bolt and fixed firing pin.
33.If Plaintiffs same plate, chain, and turnbuckle are installed on a MAC
upper, the MAC upper will fire.
34.A standard MAC upper does not, however, contain an ammunition feeding
device. For this reason, a standard MAC upper will not fire more than one
shot even with Plaintiffs conversion device attached.
35.Plaintiff approved (i.e., classified as not being a fireann under either the
GCA or NFA) a modification of a MAC upper to accept a 71-round Suomi
drum magazine. A copy of Plaintiff's March 13, 2003 Letter to Anthony
Smith (the "Suomi Letter") is attached as Exhibit C.
36.The modified MAC upper still uses an open bolt and fixed firing pin.
37.If Plaintiff's plate, chain, and turnbuckle were installed on the "Suomi"
upper (i.e., a MAC upper with the Suomi drum magazine attached), the
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upper would behave identically with Defendant - an entire 71-round


magazine would fire automatically.
38.Plaintiff approved (i.e., classified as not a firearm under either the GCO or
the NFA) another ammunition feeding device I designed, a Calico magazine
mounted onto a MAC machine gun upper. A copy of Plaintiffs June 17,
2005 Letter to me (the "Calico Letter") is attached as Exhibit D.
39. The modified upper (with Calico magazine attached) still uses an open bolt
and a fixed firing pin, yet it is not a machine gun.
40.lf Plaintiffs plate, chain, and turnbuckle were installed on a Calico/MAC
upper, the MAC upper would fire automatically until the ammunition was
exhausted.
41.Starting with the design objective of building a MAC machine gun caliber
conversion device, to 7.62X54R, I determined that it would be expeditious
to begin with component parts of other guns that already are configured for
the new caliber.
42. To that end, I began with the receiver for a VLTOR semi-automatic rifle that
fires 7.62X54R ammunition.
43. The VLTOR receiver I used was for a "PKM" type semiautomatic rifle.

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44. The "PKM" was originally made as a fully automatic machine gun. It also is
now made in semiautomatic versions, including the VL TOR semiautomatic
rifle whose receiver is integral to Claimant's design of Defendant.
45.A VL TOR semiautomatic receiver differs in two distinct ways from the fully
automatic PKM receiver. First, there is a "machine gun bolt blocking bar"
attached to the floor of the receiver. The purpose of the bar is to prevent the
use of a machine gun bolt carrier in the VLTOR rifle. It should be noted that
both the VLTOR rifle and the PKM machine gun use a machine gun bolt
carrier, but the bolt carrier is modified in the VLTOR rifle (all with
Plaintiff's blessing).

One such modification is the removal of the sear

surface on the semiautomatic version.

The sear surface catches on the

blocking bar, thus preventing continuous operation (and fully automatic


firing).
46. The other feature of the VLTOR receiver is that one of the two rails (one on
each side of the receiver) on which the bolt carrier rides is oversized
compared to the other.

A stock machine gun bolt carrier has identically-

sized rails slots that mate with the machine gun receiver rails. The machine
gun bolt carrier will not fit into the rails of the VLTOR rifle. The semiautomatic bolt carrier, which has a modified rail on one side to mate with the
8
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VLTOR receiver, will fit into the semi-automatic receiver. Thus, in order to
convert a VLTOR receiver into a fully automatic PKM receiver, one must
defeat both the blocking bar and the widened side rail.
4 7.1 had no use for the entire receiver, however, as I only used a severed
remnant of the VLTOR receiver for its ammunition feeding capabilities.
48.1 used many other parts, both from stock or from scratch, to make a finished
caliber conversion device that would attach directly onto a MAC machine
gun.
49 .I did not need the bulk of the floor of the VLTOR rifle receiver. In fact, the
floor would have interfered with the ability to attach the finished caliber
conversion device onto a MAC machine gun. For this reason, I used a
plasma cutter to remove most of the floor of the VLTOR rifle receiver, thus
destroying the receiver and making it no longer useful as a receiver at all (in
either a semiautomatic VLTOR rifle or fully automatic PKM).
50.ln the process of removing most of the floor of the VLTOR receiver, the
blocking bar discussed earlier was removed (because it is attached to the
floor of the complete receiver and the floor was mostly removed). The side
rails of the VLTOR receiver were not disturbed - even after I cut away the

9
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floor of the receiver, it still was impossible for a machine gun bolt carrier to
fit into the severed remnant of the VLTOR receiver.
51.After cutting the floor out of the receiver, I attached the remnant to many
other parts, including a portion of a MAC machine gun upper (which is a
part that the ATF does not consider to be a machine gun).
52.By the time I finished welding many other parts onto the severed VLTOR
semiautomatic receiver remnant, the severed remnant no longer was
physically capable of attaching to either a VLTOR rifle or to a PKM
machine gun. In fact, by design, Defendant can only be attached to one
firearm type of which I am aware: a MAC machine gun.
53. The severed remnant of the VL TOR receiver was not usable as a receiver at
all at that point, because critical parts would fall out, other critical parts
cannot be attached, so even if the side rails had been modified to
accommodate a machine bolt carrier, the bolt carrier would not stay in and
the severed remnant would not have been a machine gun.
54.An UZI channel is the receiver of the famous Israeli firearm. UZis are made
in both semiautomatic and fully automatic versions.
55.ATF does not classify UZI channels as machine guns.
56.They are readily purchasable throughout the country for well under $100.
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57.A blocking bar (which also is readily available throughout the country) must
be installed in one when manufacturing a fully functional semiautomatic
UZI, but the channel without a blocking bar is just a semiautomatic receiver
(according to ATF classifications).
58.A photograph comparing a standard PKM semiautomatic receiver, a PKM
receiver remnant similar to the one used by Claimant to build the Defendant,
and a standard semiautomatic UZI receiver is attached as Exhibit E.
59.All VLTOR semiautomatic rifle and UZI receivers, at some point in their
manufacturing process, do not yet possess a blocking bar (which is a part
that must be installed into the receiver).
60.The ATF does not take the position that these receivers are machine guns at
an early stage in the manufacturing process and then not machine guns at the
conclusion of this process (when blocking bars have been installed).
61.1 filed a Form 2 for Defendant on April 21, 2008 with the information
requested, and Plaintiff received the Form 2 the same day (I sent it by fax).
A copy of the Form 2 that I received back approved by ATF is attached as
Exhibit F.

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62.Claimant designed and manufactured Defendant using Claimant's parts,


tools, and employees. No other person or entity has a claim or interest in
Defendant.
63. On July 7, 2009, the ATF issued an "Open Letter to All Federal Fireanns
Licensees," advising them that devices can be GCA or NFA fireanns yet not
be rifles shotguns, or handguns. Until this Open Letter was issued, it was
not clear that Plaintiff took that position. Because I intended for Defendant
to be mounted in a MAC machine gun that is fired from the shoulder, I
assumed that Plaintiff would classify Defendant as a rifle. It is not clear that
Plaintiff does not A true and correct copy of the Open Letter is attached as
Exhibit G.
This the ~day of October, 2009.

12

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Case 1:09-cv-00192-GET

Bureau of Alcohol, Tobacco,


Fueanns and Explosives

903050:MMK
3311/2008-472
Mr. Len Savage
Historic Anns, LLC
1486 Cherry Road
Franklin, Georgia 30217

JUN 10 2008

Dear Mr. Savage:


This refers to your letter of April 21, 2008, to the Fireanns Technology Branch (FTB). Bureau of
Alcohol, Tobacco, Fireanns and Explosives (ATF), regarding a submitted prototype. Your
submission is a modified P.KM-cype, 7.62x54R caliber machinegun receiver assembly, which
you have designated the Model 54RCCS, serial number VJ. You request verification that the
sample is designed to be fired from the shoulder, has a barrel length of less than 16 inches, and is
designed for "exclusive use in a MACtype macbinegun as a caliber conversion device.
The submitted sample (photo immediately below) is comprised of the following components:
Modified P.KM-type receiver, mated with a MAC-type upper.
Unmodified PKM-type top cover and feed-tray assembly.
Newly manufactured plastic forearm.
Shortened PKM-type gas system.
Barrel approximately 15-3/4 inches long.
Modified PKM-type machinegun bolt carrier assembly.
PKM-type bolt assembly.
'" -.'-~
. ... .
'

..

..

"~

_,.

Sti>mltted 8ample

Hator1c Mns LLC, Model: 54RCCS, Si!rial No.: Vi

2nd Savage Declaration


Exh. A, Page 1 of 8 RIF
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Mr. Len Savage

The FfB examination noted the following external markings:


On the right side of the receiver

HISTORIC ARMS LLC


FRANKLIN GA .ff'
S4RCCS 7.62x54R
SERIAL No - Vt

On the top of the feed-tray assembly

EA-141
1976

FTB examination noted the PKM-type receiver was modified in the following manner (see
photos, below):

The lower rear portion of the machinegun receiver where the trigger guard is mounted
and a short section of the rear, was removed.
The rear trunion/stock-mounting-block was removed.

2nd Savage Declaration


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-~-

Mr. Len Savage

A modified MAC-type upper assembly was inserted into the rear of the PKM-type

machinegun receiver and welded in place (see photos below and next page).

2nd Savage Declaration


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Mr. Len Savage

The left-side bolt guide rail was widened in a manner preventing installation of an
wunodificd machinegun bolt.
A new manufactured plate was welded in place to act as a catch for the top cover lock.
A new manufactured ejection port cover was added to the left side.

2nd Savage Declaration


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-5Mr. Len Savage


In addition, a modified PKM-type machinegun bolt-canier-group was found installed. The

following characteristics/features of this bolt carrier were noted:

Gas piston was shortened.

Original sear notch removed and a plate welded on to act as a sear notch for a MAC-type
machinegun sear.

Guld6Rall

.. .

j;:':~~ -- . ~~:~

~ n-Modlfleei

. j

'.~

.;,

ao1t-Cartler Aesembiy

2nd Savage Declaration


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-6-

Mr. Len Savage

Left-side guide-rail notch in the bolt widened from 3/32 inch to 1/4 inch.

Th~

submitted sample was test fired on May 8, 2008, at the ATF test range, Martinsburg, West
Virginia, utilizing commercially available Wolf brand, 7.62x54R caliber ammunition. Due to the
absence of a rear trunnion block to hold the recoil spring and guide rod in place, an aluminum
plate (from stock), approximately 1-1/4 inch x l inch and approximately 3/16 inch thick, was
tied to the rear of the receiver using duct tape and two plastic tics (see photo below).

2nd Savage Declaration


Exh. A, Page 6 of 8 RIF
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-7-

Mr. Len Savage


With the nonnal factory trigger removed, the operating handle becomes the nigger which
initiates the automatic, open-bolt firing sequence. A belt of three rounds was loaded into the
sample; the operating handle was pulled back and released. The sample fired one round, and the
plastic ties separated under the recoil forces.
Next, to more securely hold the aluminum plate in place, a small section of metal chain was used
(see photo, next page). The chain was selected since it incorporated a tensioning bolt that could
securely bold the aluminwn plate in place and would not be cut by the sharp edges of the
aluminum plate.

Again, a belt of three rounds of ammunition was loaded into the sample; the operating handle
was pulled back and released. The sample fired all three rounds automatically, without manual
reloading, by a single function of the trigger. This test was repeated with an additional three
rounds of ammunition, with the same result.
The use of a modified bolt did not remove the macbinegun features of this bolt. It is still an
open-bolt operated device.
In review of your modifications of the PKM-type machinegun receiver, it was determined. that
the original machinegun design features/characteristics were retained.. Specifically, a PKM-type
machinegun receiver; an open-bolt firing mechanism; an original PKM-type machinegun belt
feed ammunition mechanism; and a shortened PKM-type machinegun barrel. It was determined
that a MAC-type upper assembly was welded to the PKM-type macbinegun receiver, which
allows the PKM-type machinegun receiver to be attached to a MAC-type machinegun receiver.
These modifications do not allow for a shoulder stock. Instead, the intent is to use the shoulder
stock and/or pistol grip on the MAC-type macbinogun receiver to which it is mounted. Further.

the mating of the two machinegun receivers, simply allows the MAC-type machinegun receiver
to be utilized in initiating the automatic firing sequence of the PKM-type machincgun receiver.

2nd Savage Declaration


Exh. A, Page 7 of 8 RIF
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-8-

Mr. Len Savage


In conclusion, FfB found that the "Model 54RCCS, serial number VJ" submitted with your
correspondence is a weapon that shoots automatically more than one shot. without manual
reloading, by a single function of the trigger; it also incorporates the frame orreceivcr of a
machinegun. Therefore, the submitted sample constitutes a "machinegun" as defined in 26
U.S.C. S845(b).
With regard to your request we determine if the submitted sample is a caliber conversion device
or nol The welding of MAC-type upper section to the internal portion of your PKM-type
receiver does not create a caliber conversion. Further, the combination of the MAC-type
machinegun and your PKM-type machinegun would result in the creation of a new machinegun.
We regret that our response in this matter has not been more favorable. Because your sample
constitutes a "machinegun," in and of itself and you are a registered SOT, the machinegun must
be properly registered with the ATF National Firearms Act Branch by close of business of the
next business day following your receipt of this letter. Please notify FTB when the registration

process is complete.
The sample will be returned to you under separate cover upon receipt of a notice of proper
registration. To expedite the return of your prototype, please provide FTB with your FedEx
account number or other appropriate carrier infonnation within 30 days after receiving this letter.

We trUSt the foregoing has been responsive to your request for an evaluation and classification.
If we can be of any funher assistance, please contact us.
Sincerely yours,

J::~n:+~

Chief. 'Firearms Technolo2v Brat'!'"

2nd Savage Declaration


Exh. A, Page 8 of 8 RIF
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y, ,..,..i..: \, '

'"r '

4 .. ..\

, .

Page 21 of ~O .." . .-

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. ;

DEPARTMENT OF THE TREASURY . '

... '

BUREAU OF ALCOHOL. TOBACCO A ..D FIREARMS


WASHNGTON,D.C. 20U6 .
.
LB:P:~E:EllO

MAY 1 llm

3311.4

..

..
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DEPARTMENI Of"'"Htl:. 1~ute1'

BUREAU OF AL.COHO.. TOBACCOANDFIRl<ARMS


WASHl,..QTON, DC 2022'5

903050: (b) (6)

AS SISTA.HT

DIRECTOR

3311/2003-268

MAR 1 3 a;03

(b)(3) - 26 U.S.C. 6103


Dear

(b)(3) - 26 U.S.C. 6103

This is in reply to your letter, with submitted


drawings, concerning the modification of a registered
machinegun that you own. You ask whether you can make
a new upper receiver and attach it to your registered
machinegun.
You enclosed a drawing showing changes you would like
to make to your registered SWD Mll/9 submachinegun,
serial number (b)(3) - 26 U.S.C. 6103 . You propose to make a new
upper receiver, which will extend in front of the
original receiver and will contain a mount for a 71
round Suomi drwn magazine. The original bolt and
barrel will be used. The SWD machinegun receiver will
not be changed.
Based on the description provided, the proposed
modifications to your registered macbinegun would not
be prohibited under the provisions of the Gun Control
Act of 1968 or the National Firearms Act. A magazine
housing from an original Suomi submachinegun could be
used provided that you do not make or possess a new
machinegun receiver.
Any other modifications, which result in making or

possessing a new machinegun receiver, would be


unlawful. You should be aware that changing the lower
receiver in any manner could result in the manufacture

WWW.ATF.TREAS.fiOV

2nd Savage Declaration, Exhibit C, Page 1 of 2


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-~-

(b)(3) - 26 U.S.C. 6103

-- - ---

..

--

-- - -

. ... ..

- - -..- .. - ---

.. ..

of a new machinegun, which is prohibited under Title


18, United States Code (U.S.C.), Chapter 44. FUrther,
Title 26, U.S.C., Chapter 53 prohibits tampering with
the serial number in any manner. Title 26, u.s.c.,
section 586l(g} states, it shall be unlawful for any
.person to obliterate, remove, change, or elter the
serial numbe~ or other identification of a firearm
required by this chapter.
We trust that the foregoing has been responsive to
your inquiry. If we can be of any further assistance ,
please contact us.

Sincerely yours,

7~

\1

( _ ~~/.\~
.- . .
..

- - .. -.. .

CUrcie H.A. Bartlett

Chief, Firearms Technology Branch

-- -. - -

--- -- -------- - - -- .. --

2nd Savage Declaration, Exhibit C, Page 2 of 2


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U.S. DepartJnentof Justice

Bureau of Alcohol, Tobacco,


Firearms and Explosives

903050~RDC

JUN - 7 2005

331112005-440
www.alf.go\'

Mr. Len Savage


President
Historic Arms LLC
1486 Cherry Road
Franklin, GA 30217

Dear Mr. Savage:


This refers to your letter of May 25, 2005, to the Firearms Technology Branch (FTB). Bureau of
Alcohol, Tobacco, Firearms and Explosives (ATF). regarding the legality of modifying an MlOor Ml 1-type upper recei vcr to accept a Calico-type helical magazine.
As you are aware, the Gun Cootrol Act of 1968 (GCA), 18 U.S.C. 9Zl(a)(3), defines the term
"firearm.. to include the folJowing:
... (A) any weapon (including a starter gun) which will or is designed to or may be readily
converted to expel a projectile by the action ofan explosive,- {BJ the frame or receiver ofany
.such weapon; (C) any firearm muJjler or silencer; or (D) any destructive device. Such term does
not include an antiquefirearm.

Further. the National Firearms Act (NFA), 26 U.S.C. 5845(a). defines "firearm" as-

.. .(1) a shotgun having a barrel or barrels of less than 18 inches in length,- (2) a weapon made
from a shotgun ifsuch weapon as modified has an overall length ofless than 26 inches or a
barrel or barrels of less than 18 inches in length, (3) a rifle having a barrel or barrels of less
than 16 inches in length, (4) a weapon made from a rifle ifsuch weapon as modified has an
overall length of less than 26 inches or a barrel or barrels of less than 16 inches in length; (5)
any o/her weapon, as defined in subsection (e), (6) a machinegun; (7) any silencer (as defined in
18 U.S.C. 921); and (8) a destructive device. The term "firearm" shall not include an antique
firearm or any device (other than a machinegun or destructive device) which, although designed
as a weapon, the ...[U.S. Attorney General] ... finds by reason ofthe date of its manufacture,
value, design, and other characteristics is primarily a collector's item and is not likely to be wed
asa weapon.

2nd Savage Declaration


Exh. D Page 1 of 3 RIF
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-2-

Mr. Len Savage


Based on the FTB evaluation of the submitted drawing, it appears that the proposed
Ml O/Ml I-type upper receiver assembly will be redesigned to accommodate a CaJico heJical
magazine mounted atop the receiver. In addition, you state the firearm's original semiautomatic
function will not be altered.
The upper receiver of an Ml 0/Ml I type firearm does not constitute the frame or receiver of a
fireann, as that term is defined in 27 CFR Section 478.11 (fonnerly 178.11 ). Based on the
infonnation provided, the manufacture of a modified Ml 0/Ml 1-type upper receiver that is
redesigned to accept a Calico helical magazine does not constitute the manufacture of a .frame or
receiver of a fireann. The proposed upper receiver is not subject to either 18 U.S.C. Chapter 44
{the GCA) or 26 U.S.C. Chapter 53 (the NFA).
.... . This detennination is relevant to the item as proposed. Any alterations or modifications to.the
design would subject the item to further review.
We trust the foregoing has been responsive to your inquiry. Please contact us if we can be of any
further assistance.
Sincerely yours,

Si{

Sterling Nixon

Chief, Firearms Technology Branch

2nd Savage Declaration


Exh. D Page 2 of 3 RIF
1269


.:09-cv-00192-GET
Bureau of Alcohol, Tobacco,
Firearms and Explosives

MmtinsburJ. WV 25401

www..iC.gov

903050:RV
331112007-076

NOV 03 DB
Mr. Len Savage
President
Historic Arms. LLC
1486 Cherry Road

Franklin, Georgia 30217


Dear Mr. Savage:
This is in response to your inquiry to the Firearms Technology Branch (FTB), Bureau of
Alcohol, Tobacco, Firearms and Explosives (ATF), regarding whether FfB intends to reclassify
your design of an Ml 0- or Ml I-type upper receiver modified to accept a Calico-type helical

magazine.
Our Branch issued a classification of this modification in our June 7, 2005, letter to you (please
refer to #33 J 1/2005-440). We found that, apan from feeding from a Calico magazine, the design
features of the original M 1O/M11 had not changed significantly. Therefore. the FTB
classification provided in #2005-440 will not be re-evaluated.

We trust the foregoing has been responsive to your inquiry. Please contact us if we can be of any
further assisumce.
Sincerely yours,

~ u:~ -n--./

~.. Sterling Nixon

l/

Chief, Firearms Technology Branch

2nd Savage Declaration


Exh. D Page 3 of 3 RIF
1270

Case 1:09-cv-00192-GET

Document 38-4

Filed 10/28/2009

Page 27 of 30

BOITOM FLOOR OFTIIE


RECEIVER REMOVED AND \vmI
IT. TIIE "BLOCKING BAR

OVERSIZED GUIDE RAIL TO


PREVENT INSTALLATION OF

NO BOLT "BLOCKING BAR"


PRESENT IN TiiE RECEIVER TO

MACHINE GUN BOLT ANO


CARRIER

PREVENT MACHINE GUN


BOLT INSTALLATION

"BLOCKlNG BAR TIIAT


PREVENfS INSTALLATION OF

VLTOR
SEVERED
SEMlAUTO RECEIVER REMNANT

UZI
CHANNElJRECEJVER

2nd Savage Declaration


Exh. E Page 1 of 1 RIF
1271

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1272

RIF

Case 1:09-cv-00192-GET

JUL - 7 2009

Document 38-4
Filed 10/28/2009 Page 29 of 30
U.S. Department of Justice

Bureau of Alcohol, Tobacco,


Frrearms and Explosives

Assistant Director

WllShington, DC 20226

II

II

OPEN LEITER TO ALL FEDERAL FIREARMS LICENSEES

The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) has received inquiries
about selling or delivering .firearm frames or receivers. The purpose of this open letter is
to provide you with guidance on certain regulatory requirements and definitions under the
Gun Control Act of 1968 (GCA).
The GCA at Title 18, United States Code (U.S.C.), section 921(a)(3), defines ".firearm"
as " ... (A) any weapon (including a starter gun), which will, or is designed to or may
readily be converted to expel a projectile by the action of an explosive; (BJ the frame or
receiver ofany such weapon; (CJ any firearm muffler or firearm silencer; or (D) any
destmctive device. Such term does not include an antique firearm. "

I
I

Under section 921(a)(3)(B), frames or receivers are defined as firearms. However,


frames and receivers are not rifles, shotguns, or handguns (pistols or revolvers), even if
they can only be made into one of these firearms. See Title 27, Code of Federal
Regulations, section 478.11 (defining these tenns). This is because a frame or receiver
does not have the features required for a rifle or shotgun {e.g., a buttstock indicating it is
designed and intended to be fired from the shoulder), or a pistol or revolver (e.g., a
weapon with a short stock designed to be gripped by one hand and at an angle to and
extending below the line of the bore). As a result, Federal firearms licensees (FFLs)
should note several things:

First, an FFL may not sell a frame or receiver to anyone under 21 years of age. [Title 18,
U.S.C., section 922{b)(l)].

I!
I
I'

Second, an FFL may not transfer a frame or receiver to an unlicensed person from
another State. [Title 18, U.S.C., section 922(b)(3)].
Third, multiple handgun sales forms (ATF Fonns 3310.4) are not required for sales of
frames or receivers of any firearm, as they are not pistols or revolvers.
For guidance, the following question-and-answer section Is provided:
1. How should a licensed .dealer record in his records the tran sfer of a frame or
receiver to an unlicensed purchaser?

A dealer must record in his/her acquisition and disposition record and on ATF
Form 4473 the type of.firearm as a ..frame" or "receiver'' (as applicable). The

2nd Savage Declaration


Exh. G, Page 1 of 2
1273

RIF

Case 1:09-cv-00192-GET

Document 38-4

Filed 10/28/2009

Page 30 of 30

-2-

OPEN LETTER TO ALL FEDERAL FIREARMS LICENSEES


dealer must also include in any record the make, model, and serial number of the
receiver.
2. May a licensed dealer lawfully transfer a frame or receiver that can only be
used to assemble a rifle to an 18year-old?

No. A frame or receiver is a type of firearm "other than a shotgun or rifle" and
the transfer by the dealer to an individual under 21 years of age would be
prohibited by Title 18, U.S.C., section 922(b)(l). A frame is not "designed or
redesigned, made or remade, and intended to be fired from the shoulder";
therefore, it is not a rifle or shotgun as de.fined under the GCA.
3. Does a licensed dealer need to complete and submit a multiple sales form
after selling, within five consecutive business days, two or more frames that
can only be used to assemble two or more pistols?

No. Multiple sales forms (ATF Forms 3310.4) are not required for sales of
frames or receivers of any firearm, as they are not pistols or revolvers as defined
under 27 CFR 478.11.
j

ATF remains committed to assisting licensees in complying with Federal fireanns laws.
If you have any questions, please contact your local ATF office.

Carson W. Carroll
Assistant Director
(Enforcement Programs and Services)

2nd Savage Declaration Exh. G, Page 2 of 2


1274

RIF

Page 1 of27
0001
1
2

IN THE UNITED STATES DISTRICT COURT


FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

UNITED STATES OF AMERICA,


Plaintiff,

CIVIL ACTION
vs.

6
7

8
9

ONE HISTORIC ARMS MODEL


54RCCS A7.62X54R CALIBER
CONVERSION SYSTEM@
MACHINEGUN, SERIAL NO. Vl,
Defendant.

FILE NO.
1:09-CV-0192-GET

10
11

12
13

DEPOSITION OF
WILLIAM N. MESSENGER, PE, CBSI

14

15
16
17
18

September 18, 2009


9:30 a.m.
2600 Century Parkway, NE
Suite 300
Atlanta, Georgia

19
20
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Yolanda R. Narcisse, CCR-B-2445
22
23
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25
0002
1
APPEARANCES OF COUNSEL
2
3
On behalf of the Plaintiff:
G. JEFFREY VISCOMI, Esq.
4
U. S . Department of Justice
5
United States Attorney's Office
75 Spring Street, SW
Suite 600
6
Atlanta, Georgia 30303
( 4 04) 581-6036
7
(404) 581-6181 (Facsimile)
8
jeffrey.viscomi@usdoj.gov
9
HARRY R. FOSTER, III, Esq.
U.S. Department of Justice
10
Bureau of Alcohol, Tobacco, Firearms &
Explosives
11
2600 Century Parkway, NE
Atlanta, Georgia 30345
12
(40 4 ) 417-2696
(404) 417-2691 (Facsimile)
13
harry.foster@atf . gov
14
On behalf of the Claimant:
15
JOHN R. MONROE, Esq.
16
Attorney at Law
9640 Coleman Road
17
Roswell, Georgia 30075
(678) 362-7650
18
(770) 552-9318 (Facsimile)
19
john.monroel@earthlink.net
20
Also Present:
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Mr . Len Savage, Claimant; President, Historic


Arms, LLC
Mr . Mason Kingery, Firearms Technology Branch,
Bureau of Alcohol, Tobacco, Firearms &
Explosives

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0003
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(Reporter disclosure made pursuant to


Article 8.B. of the Rules and Regulations of the
Board of Court Reporting of the Judicial Council
of Georgia. )
WILLIAM N. MESSENGER, PE,
having been first duly sworn, was examined and
testified as follows:
CROSS-EXAMINATION
BY MR. VISCOMI:
Q.
Good morning, Mr . Messenger.
A.
Good morning.
Q.
My name is Jeffrey Viscomi . I'm with the
United States Attorney's Office for the Northern
District of Georgia.
A.
Okay.
Q.
With me in the room here today are Harry
Foster, assistant chief counsel.
MR. FOSTER: Just attorney .
Q.
(By Mr. Viscomi) Attorney with the ATF
Atlanta division office, along with Max Kingery from
the Firearms Technology Branch in the ATF. And for
the deposition today, we are going to do it in this
manner, I'm going to go through your qualifications
through your CV, and then my portion will be done.
You won't hear from me anymore. Then Mr . Foster will

0004
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0005
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continue with the rest of the deposition.


Also, for the record, we have John Monroe
with us, the attorney for the claimant Historic Arms,
Mr. Len Savage, yourself, of course, and the court
reporter.
If at any time you don't understand a
question I ask you, please don't hesitate to ask me
to restate it. If you do answer the question as I
pose it, the assumption will be that you understood
it.
A.
Okay .
Q.
If you can't hear me, that's fine. I will
try and keep my voice up. And when you do give an
answer, if it's a yes or no kind of thing, please say
yes or no. Don't nod or say uh-uh, because that
won't come through for the court reporter.
A.
All right.
Q.
And also, for the court reporter's sake,
let's try not to talk over one another. I don't
think that will be a problem, but just so we're
clear . I'm going to ask you to start by stating your
full name for the record.
A.
My name is William Nelson Messenger.
Q.
Mr. Messenger, how old are you?
A.
47 -- or 46.
Q.

A.
Q.
A.

Where do you currently live?


5320 Bull Road, Dover, Pennsylvania .
Is Dover in the Philadelphia metro area?
No . That's just outside of York, south of
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the Harrisburg area.


Q.
Where are you currently employed?
A.
Johnson, Mirmiran & Thomps on.
Q.
What is Johnson, Mirmiran & Thompson?
A.
Civil engineering; predominantly
transportation engineering .
Q.
What is your position there?
A.
Senior structural engineer.
Q.
How long have you be en there?
A.
I started October o f '89.
Q.
Can you tell me a little bit about your
duties as a senior structural e ngineer?
A.
I'm involved in the design o f heavy
structures. I'm also involved in inspection and
rating of heavy structures. I get involved in the
construction aspect, specificatio ns, and testing
procedures for construction purposes.
Q.
When you started with -- I'm referring to
Johnson
A.
JMT for short.
Q.
JMT . That's an easier way to put it. The
middle name trips me up a little. When you started
with JMT, what was your positio n?
A.
I started as an i ntern.
Q.
Was that in 1989?
A.
Yes.
Q.
I'm looking at yo ur CV . It l ooks like you
graduated from Penn State in 1990?
A.
Yes.
Q.
So I would assume you went there full time
after your graduation?
A.
Yes .
Q.
When you began working fu l l time, what was
your position?
A.
Design engineer; junior design engineer.
Q.
Have you alwa ys worked as an engineer kind
of working your way up to senior engineer?
A.
Yes.
Q.
I assume, at Penn State you studied
engineering ; i s that correct?
A.
Yes.
Q.
Now, I noticed in your CV that you
received your professional engineering license. It
was issued in 2005 in Pennsylvania?
A.
Yes .
Q.
Now, prior to that, did yo u have an

25
0007
engineering license?
1
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A.
No .
Q.
I apologize, I don't know anything about
the licensure of engineers. You were able t o work
without a license for that period of time, that
15 years?
A.
I must work underneath another licensed
engineer .
Q.
I see.
So it's sort o f like an
apprenticeship of sorts?
A.
Yes.
Q.
Now, have you had any other side jobs or
anything like that you've done while you've been
working as an engineer for JMT?
A.
I've done some independent consulting of
small structures for small institutions, businesses,
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friends, et cetera.
Q.
Does any of your work at JMT relate in any
way to firearms?
A.
No .
The consulting work that you just
Q.
described, has that related in any way to firearms?
A.
No.
Q.
Did you go to college straight out of high
school?

0008
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A.
Yes; and then I took a break from college.
Q.
So when did you begin college?
A.
That would have been '82.
Q.
Where did you begin college?
A.
That would have been Penn State, the
Worthington Scranton campus.
Q.
How long were you in before you took a
break?
A.
One year.
Q.
What were you studying?
At that point, general engineering . It
A.
would have been engineering science because I had not
chosen a major.
Q.
What happened that you chose to take a
break?
A.
I wasn't sure if I wanted to pursue
engineering. At that time, I started a small
business with my brother.
Q.
What was the nature of the business?
A.
Landscaping, lawn care.
Q.
How long did you work at that?
A.
Let's see. Three years, I believe.
Q.
After the three years, what did you do?
A.
I decided that I probably would n ot be
able to continue that line of work int o my 50s.
Q.
A.
Q.

Fair enough.
And I went back to school .
So then did you return to Penn State at

that point?
A.
No . I returned to Lockhaven because I
could not afford Penn State. I was there for one
year. My mother got a position at Penn State. And
at that point, I had a very large tuition reduction
as one of her corporate benefits and returned to Penn
State.
Q.
And you returned, did you return to
your CV says Capitol campus.
A.
I returned originally to University Park,
which was where my parents were living . I decided
living at home and going to school was no t good and
then transferred to the Capitol campus .
Q.
Is University Park the main campus?
A.
Yes .
Q.
You left and you went t o the Capitol
campus . Is that -- by the name, I'm gue ssing, it's
around Harrisburg?
A.
Yes.
Q.
And that's where you graduate d fr om in
1990?
A.
Yes .

0010
1
Q.
college?
2

In total, how many years were you in


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Six, I believe.
Did you hold, I'm not asking about minor
college jobs at the booksto re or the hardware store
or anything like that, did you hold any o ther jobs in
that period?
A.
I interned with two other engineering
firms; Comprehensive Design Associates for a summer
and I also interned with Gannet Flemming Corporation
for a summer .
Q.
What does Gannet Flemming do?
A.
The same; transportation engineering.
When I started with Gannet, the only positions they
had available were in highway design and I really
didn't have enough interest. So whenever an
opportunity with JMT opened up in the structures
division, I jumped ship and moved over there.
Q.
Is it fair to say that your entire career
has been in the field of structural engineering not
counting the landscaping portion?
A.
Correct.
Q.
And that structural engineering has
primarily focused on transportation engineering?
Correct.
A.
A.

Q.

0011
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Q.
It sounds s omewhat self evident from the
title . Could you kind of just briefly explain what
transportation engineering involves?
A.
On my end in heavy structures,
predominantly bridges, fine structures, other
ancillary structures. I design, load rate, analyze.
That would be the primary fo c us of where I've been -I also get involved in inspection and fi eld analysis.
That's the main thrust of my duties.
Q.
Have you ever served in the military?
A.
No, sir .
Q.
Do you hold any federal lice nse s?
A.
No, sir.
Q.
Have you ever had any s o rt o f
firearms-related licenses?
A.
No, sir.
Q.
Would you desc ribe yoursel f as a gun
enthusiast?
A.
Yes, sir.
Q.
How long have you been a gun enthusiast?
A.
Probably since I've been ten or 12.
Q.
Do you current l y own any guns?
Yes, sir.
A.
Q.
Approximately h ow many?
2 0, 25; s omewhere in that neighborhood .
A.
In your CV it states that you are an
Q.
amateur gunsmith?
A.
Yes, sir.
Q.
Could you expound on that a little bit?
A.
I like to tinker, that's what I call it,
with different components of the firearms;
particularly, the MAC family. Just seeing what I
could do to make a particular firearm run. I'm not
sure how to describe it . I say amateur because I
have very limited or no machining skills whatsoever .
I like to work on them, fix my own firearms, as I
can. I take them apart and usually get them back
together.
Q.
I understand . So it sounds to me that
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0015

you've never been to, perhaps, an armory school?


A.
No, sir.
Q.
Or a gunsmithing school?
A.
No, sir.
Q.
Have you had any sort of formal training
in firearms?
A.
No, sir.
Q.
Now, you said you focus on the MAC series
of guns?
A.
Yes, sir.
Q.
Have you built any of your own guns?

A.
Other than a black powder series of
firearms, no.
Q.
So you don't purchase kits or anything
like that?
A.
No, sir.
Q.
Have you ever designed a gun?
A.
I collaborated with Len on the BM-3000.
Q.
What is the BM-3000?
A.
It's the RPD series machinegun adapted to
operate off the Mll submachine gun.
When did you collaborate with Len?
Q.
Early in 2003. I think it was in April
A.
when we started that little venture.
Q.
What was the nature of the work you did in
collaboration with Mr. Savage?
A.
Coming up with sketches on how to fit
things together and then see if they were feasible.
Q.
Forgive me if I'm -- I don't mean to be
insulting, but what did you bring to that given that
you've stated you don't have any formal or, really,
you said you're not much of a machinist or you don't
have any training?
A.
An idea. In looking at the two systems, I
had an idea that they could be married together. I
could lay that out on paper, but that's about the
greatest extent of my skill is laying something out
on paper.
Q.
So did you kind of originate this idea and
then approach Len about that?
A.
Yes.
Q.
Why did you go to Mr. Savage as opposed to
somebody else? Perhaps somebody closer?
A.
I did. Most SOTs didn't want to pick up
the project. They had no interest in undertaking it.
Q.
So it would be fair to say that Len wasn't
-- I don't mean this as an insult to Mr. Savage -Len wasn't your first choice on this?
A.
No.
Q.
How did you get in touch with Mr . Savage?
A.
I was on the Internet and basically
discovered he was building a similar semi-automatic.
He was working on a semi-automatic RPD at the time.
I contacted him. Actually, I contacted his
distributor and his distributor put me in touch with
Len.
Q.
Which distributor was this?
A.
Phil, and I can't remember his last name.
Q.
Is he with a company?
A.
I believe he owns his own. It was on the
Internet and I contacted him about the RPD, and he
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forwarded me to Len.
Q.
What has become of that project?
A.
It was deemed a machinegun in and of
itself by the ATF and at that point shelved.
Q.
Does Phil Thompson ring a bill?
A.
Phil Thompson ... The name rings a bell,
but I couldn't put a face to him.
Q.
So you don't know if that's the Phil that
you spoke to?
A.
It might be. It was a long time ago. I
only spoke to him once or twice, and since then I've
been dealing with Len.
Q.
So this device, I'll call it the RPO for
short, that you and Len collaborated on, that was
submitted to the Firearms Technology Branch?
A.
Yes.
Q.
When was that?
A.
I'm going to guess. It was a long time
ago. Late 2003, fall of 2003, I think was the first
submission, but I'm not sure.
Q.
Let me ask you that. Why was it submitted
at that time?
A.
It was a radical departure from what most
people would normally see on an Mll. And considering
it's the firearms industry, it's better to be overly

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0016
cautious than to step out and, you know, ask for
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forgiveness for breaking the rules.
Q.
Was it a prototype that you submitted?
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A.

Len submitted it, yes.


Do you recall, was the item submitted
actually the prototype or was it a sketch or design?
A.
Prototype.
Q.
So at that point, it had not been
submitted because it was required under law to be
submitted?
A.
From us?
Q.
Yes.
A.
Well, I was talking with Len . We thought
it would be prudent to make sure that we were above
board.
Q.
Do you recall the name of the firearms
enforcement officer who classified the device?
A.
Not off the top of my head.
Q.
Were you in agreement with that
classification?
A.
No, sir.
Q.
Why were you not in agreement with that
classification?
A.
As I recall and I'm going from memory, I
believe it was classified as a machinegun because it
Q.

was readily restorable was what the final


classification came down to. And, in my opinion, I
thought it would take an exceptional amount of work
to restore it to an independent firearm.
Q.
Now, based on that classification, did
either you or Len work in conjunction to make
modifications to the prototype?
A.
It went back and forth with ATF on several
submissions.
Q.
Well, I'm guessing from what you told me
that there was never a submission put forth that the
ATF was satisfied with?
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A.
There was one submission that the ATF was
satisfied with . It was classified as a non-gun for a
period of several months, and then the ATF reversed
its posit i on .
Q.
What was your feeling when that happened?
A.
I didn't understand the reversal. It
didn't make sense to me.
Q.
Did you and Len have any sort of financial
agreement regarding this RPO?
A.
The original, I commissioned on . We had
created a $3,000 original conunission and if he could
make a production run out of it, the production run
would be his.
Q.
A.

So you would get $3,000


No, I pay him 3,000 -Q.
I see.
A.
-- for the initial adventure and for the
first production model. And if he could make a
production run out of it, it's all his .
Q.
So you were not looking at any perspective
profits for them?
A.
No .
Q.
Have you ever submitted anything else to
FTB?
A.
Myself?
Q.
Yes .
MR. MONROE: I'll object to the extent
that he said he hasn't submitted anything.
Q.
(By Mr. Viscomi) Do you have any
disagreement with the policies of the FTB?
A.
I have a disagreement. In my industry,
when it comes to testing procedures, they're
published, they're established, et cetera . And I
thought that we were above board with the de sign .
I'm not familiar with FTB's testing procedures to the
e xtent that I'd like to be. I disagree with the
procedures they're using.
Q.
Can you elaborate specifically what you

0019
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disagree with?
2
A.
From my standpoint, I l o ok at the standard
3
MAC upper receiver and I look at other upper
4
receivers that operate on the same principals. We
5
come up with a receiver that duplicates the
principals and the operating procedures and have a
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different classification.
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Q.
So would it be fair to say, based o n what
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you've testified to earlier in regards to your own
industry, it seems that your disagreement, and please
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correct me if I'm mischaracterizing this, is that FTB
12
doesn't have , I guess, stated po lic ies f or
13
classification; is that correct?
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A.
Not stated or not stated very clearl y.
15
Q.
You think what they've stated is t oo
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vague?
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A.
Vague or misunderstanding them .
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Q.
Have you ever received any legal training?
A.
No, sir.
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Q.
I assume you have not been t o law school?
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A.
No, sir.
Q.
Have you ever classified a firearm for the
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government under the NFA?
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A.
No, sir.
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Q.

How about the GCA, the Gun Control Act?

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A.
No, sir.
Q.
Have you classified a firearm for any
other regulatory body?
A.
No, sir.
Q.
I see from your CV that you previously
testified as an expert in the case of Pennsylvania
Department of Transportation versus the City of
Philadelphia; is that correct?
A.
Yes, sir.
Q.
Did you testify in deposition or trial?
A.
Yes; both.
Q.
Both depositio n and trial?
A.
Yes.
Q.
Can you tell us briefly what that case was
about?
A.
It was about the replacement of a bridge
structure in the downtown Philadelphia area . The
replacement was impacting a number of city-owned
facilities. There was also a disagreement on
ownership of the structure itself.
My part of the case was narrowed down to
the need for the replacement and also the minimizing
impacts to the different facilities involved.
Q.
You were brought in in your capacity as a
structural engineer, correct?
A.
Yes .
Q.
Have you ever been retained as an expert
in any other field?
A.
No, sir.
Q.
Have you ever been deposed before o ther
than that case?
A.
No, sir .
Q.
Have you ever testified in a courtroom
proceeding before -A.
No , s i r .
Q.
-- other than that case?
A.
No, sir.
Q.
Have you ever been retained as a
consultant on a case?
A.
No, sir.
Q.
Who first contacted yo u abo ut testifying
in this case?
A.
Mr . Savage.
Q.
When did he contact yo u?
A.
I really don't know off the top of my
head . He contacted me shortly after or during the
seizure proceeding that there co uld possibly be legal
action. I think it was shortly after the seizure.
Q.
At the time Mr . Savage first contacted
you, had you already been aware of the item -A.
Yes .
Q.
-- we'll call the defendant, that he had
designed?
A.
Yes.
Q.
How had you become aware of that?
A.
The design was basically a f ollow up or an
improvement on the RPO series fir earm. I had been
following this development and was hoping that it
eventually would come to market.
Q.
Did you collaborate on the design of the
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defendant with Mr. Savage?


A.
Minimally .
Q.
In what capacity?
A.
Mostly cosmetics, but attachment of the
two receivers together and making them a usable
system . Also, the idea of the short barrel for a
Hollywood effect.
Q.
You said Hollywood effect?
A.
That's what I call it.
Q.
What do you mean by that?
A.
Muzzle flash.
Q.
I see. So you want the big flash?
A.
Yes.
Q.
Did you have any financial investment in
his development of the defendant?

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A.

No, sir.
Did you have any potential compensation
coming your way if he was able to market the
defendant?
A.
No, sir.
Q.
At the point that Mr. Savage first
contacted you in terms of your -- well, let me back
up. Prior to being contacted by Mr. Savage, did you
have any determination on what the defendant was as
either a semi-automatic short-barrel rifle or a
machinegun or anything else?
A.
I thought, in my opinion, that it was a
firearm accessory or at most an AOW. I did not agree
with the firearm classification that he was seeking.
Q.
When he first contacted you, did he tell
you anything that changed your opinion of that?
A.
I didn't change my opinion until, or
modified my opinion, until I actually saw the
defendant being demonstrated at the Coweta range.
Q.
Were you at any point told what issue you
were to render an expert opinion on?
A.
I don't know if you necessarily say asked.
There was a conversation back and forth about my
ability to contribute to the case and my opinion;
being an amateur gunsmith. I could look at testing
Q.

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procedures and see if the testing procedures make


sense to me or not.
Q.
So is it fair to say your involvement as
an expert was to oversee the testing procedures that
FTB used in classifying firearms?
A.
Offer my opinion on them, yeah.
Q.
What were you going to base that opinion
on?
A.
Based on basic texts that I use on a
regular basis .
Q.
Have you ever studied the manner in which
a body other than FTB classifies firearms?
A.
Material and testing facilities for
different state agencies.
Q.
And in relation to the classification o f
firearms?
A.
Nothing.
Q.
What do you mean nothing?
A.
I have not been involved in any other
classification of firearms as far as education,
introduction, or et cetera.
Q.
I'm sorry, I missed something there. Did
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you say that you study how particular states classify


firearms?
A.
No . No .
Q.
You did not?
A.
My area of expert -- you know, where I
studied or worked with other agencies have been
material and testings labs for other state agenc ies
such as Department of Transportation, SHAs; no thing
involving firearms.
Q.
So it's all related to your -A.
Structures field.
Q.
-- instruction as a structural enginee r?
A.
Yes.
Q.
What is an SHA?
A.
State Highway Administration .
Q.
You've never studied how any government
body
be it state, foreign, federal -- classifies
firearms?
A.
No, sir .
Q.
Let's go back. Let me ask you this: When
did you first see the defendant in person?
A.
At the Coweta range.
Q.
Prior to that, had you been provided with
any drawings? Schematics? Photographs?
A.
Descriptions, photos, and a few videos.
Q.
What was depicted in the videos that you
watched?
A.
The defendant being test fired with a

0026
short-barrel option on it.
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Q.
Who was test firing it?
A.
One of Len's friends. I couldn' t t e ll you
his name.
Q.
What photographs were you provided with?
A.
Digital photographs e-mailed t o me fr om
Len's shop.
Q.
Did the photo graphs depict the defendant
in a static form or was it -A.
Static.
Q.
Static . Now, the video that you watched,
do you know where that was recorded?
A.
It was on a shooting range.
Q.
Do you know when that video was recorded?
A.
No, sir.
Q.
When were you provided with it?
A.
I would say, I'm going t o guess, probably
two months prior to the f o rfeiture pro ceedings, maybe
less.
Q.
Was it before o r after Len asked yo u t o
participate in this case?
A.
Before.
Q.
Before. Did s ome thing yo u saw in the test
videos that were provided to you by Len change the
opinion of what the defendant is in terms of its

25
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classification?
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MR. MONROE: Let me just jump in f o r a


second, Mr. Viscomi. I thought you were talking
only about his CV. Of course, you know, you're
welcome to ask questions about anything . But if
you're invading Mr. Foster's province, then when
Mr. Foster starts asking questions, I won't
allow him to ask questions about the same
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things .
MR. VISCOMI: Let me just see . I'm not
trying to invade his province . I guess I'm just
trying to follow them where they lead .
Q.
(By Mr . Viscomi) All right . Well, to
that end, I don't want to stray too far because,
again, as Mr. Monroe pointed out, I don't want to
stray off of your CV too far . Now, you've prepared a
report in thi s case, correct?
A.
Yes.
Q.
And that's the report I've been provided
with?
A.
Yes.
Q.
When did you prepare this report?
A.
The week following the shooting
demonstration at the Coweta range.
Q.
Did anybody give you instructions o n what

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they wanted in
A.
No .
2
Q.
Did
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report?
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A.
No,
Q.
Let
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the report?
anybody assist you in preparing the

sir.
me back up. Did you discuss any
drafts of the report with anybody?
A.
I was asked to submit a report as soon as
possible. I did forward a preliminary draft to
Mr. Monroe and then followed up with a final draft.
Q.
Was your draft substantively different
from your final report?
A.
It did not have the attachment photos, and
I believe I made some minor granunatical changes; but
substantially, no.
Q.
Your conclusio ns were the same in both the
draft and the final produc t?
A.
Yes, sir .
Q.
Are you being paid f or your partici pation
in this case?
A.
Yes.
Q.
What are you being paid?
A.
At this point, I'm billing f o r in-office
at $110 an hour, daily rate o f a thousand a day. I
have been basically collec ting invoices, but have not

25
0029
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been paid at this point.
Who do you expec t t o pay yo u?
2
Q.
3
A.
Hopefully, Mr. Savage will be able t o .
If he's not?
4
Q.
I don't worry abo ut how to handle that or
5
A.
6
when we get to that bridge.
7
Q.
So you don't have a contingency paye r

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who's out there?


A.
No.
Q.
Do you know how much yo u've invo ice d s o
far?
A.
No, sir . I'd have to pull it up on my
computer to take a look. I've let this sit for a
while, because I don't want to run up Len's bill .
Q.
Are you also r e ceiving compensation for
your expenses?
A.
I've been keeping track of expenses as
well, yes.
MR . VISCOMI: Thank you, Mr. Messenger. I
have no further questions of you at this point.
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If you want to take a break for five minutes, we


can. Otherwise, I'll let Mr. Foster take over.
(Recess from 10:03 a.m. to 10 : 18 p.m . )
CROSS-EXAMINATION
BY MR . FOSTER :

0030
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Q.
Mr. Messenger, my name is Harry Foster.
I'm an attorney with ATF and special assistant United
States attorney for this case. At this point, I'm
going to talk with you about the substance of this
case; the real meat and potatoes.
A.
Okay.
Q.
Now, Mr. Viscomi earlier asked you when
you first learned about the defendant, and it was
after Mr. Savage had submitted it for classification;
is that correct?
A.
We had had a few conversations prior to
its submission when he was actually working on it.
Q.
Now, do you consider Mr. Savage a friend?
A.
Yes.
Q.
At this point, do you guys just sort of,
you know, shop talk so to speak -- hey, what do you
think of this? What do you think of that -- so to
speak?
A.
Yes .
So he'll call you up? Because it sounds
Q.
like you're sort of a self-taught MAC expert; is that
correct?
Self taught, yes.
A.
So he'll call you up and say, hey, what do
Q.
you think o f this, what do you think of that?

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A.
Yes.
Q.
So you had learned about it prior t o
submission?
A.
Yes .
Q.
Do you know approximately when you and
Mr. Savage first started talking about this idea?
A.
No, I don't. I don't even know if I could
give you a ballpark guess on when we started, you
know, talking about this particular item .
Q.
Just out of curiosity, I know you had sai d
with the -- I think it was the BM-3000?
A.
Yes.
Q.
That was your concept?
A.
Yes.
Q.
I've never designed a firearm myself, so
when you come up with an idea to do this, how long
does it sort of take from the time you put pen to
paper and then from the time -- well, pen to paper?
MR. MONROE: I'm going to object,
Mr. Foster. I think this is getting back to the
CV issues.
MR. FOSTER: Well, you know, I'll strike
that one and I'll just move right on then.
Q.
(By Mr. Foster) So you had received
advance knowledge that Mr. Savage was working on the

0032
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defendant?
A.
Yes.
Q.
And what did he tell you about the
defendant?
A.
That he was working on a new platform for
a larger caliber, a more economic caliber, on the
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7.62x54R, and it would be more for the MAC-10 series


firearm rather than the MAC-11 or Mll series that I
had originally come up with.
Q.
Okay. Now, your design was based on an
RPD, and the defendant was based on what?
A.

A PKM.

Q.
What are the basic differences? You don't
have to go nitty-gritty, but what would you think are
the main differences in a PK and RPO?
A.
Above and beyond caliber?
Q.
Yes.
A.
Recoil system. The mechanics of the PK,
I'm not what you call an expert in. So I really
would have to be tearing one apart to look at it.
Q.
So you're not very familiar with PKs,
then, is what I'm hearing?
A.
No.
Q.
Now, based on your experience with the
BM-3000, when Mr. Savage explained to you the
defendant, did you think that FTB would approve it?
A.
Whenever he said he came up with a system
where it would not require a recoil system in the
butt stock, I thought it would be an approvable
system.
Q.
You did?
A.
(Witness nods head in the affirmative.)
Q.
Okay. So you talked with Mr. Savage prior
to the submission?
A.
Uh-huh.
Q.
You said you viewed videos. Was that on
the Internet or was that something he sent to you?
A.
Something he sent to me.
Q.
Something he sent to you. After this,
what was your next contact with Mr. Savage with
regards to the defendant?
A.
We had routine phone conversations back
and forth just as friends and touched base on his
progress. I was mainly interested in, you know, what
the classification came back as because I do have an
interest, you know, for a personal purchase. So I
was following that progress.
Q.
So you would buy one of those if it was
approved?
A.
I believe so, yes.
Q.
Now, the design process during which you
had these conversations with Mr. Savage, do you have
any idea what period of time that occurred over?
A.
No, I do not.
Q.
Was it weeks? Days? Months?
A.
Months.
Q.
Months? Okay. So the first time you
examined the defendant personally, where was that?
A.
Coweta Sheriff's Range.
Q.
That was at the June 10th
A.
Yes.
Q.
I believe it was the June 10th meeting?
A.
I believe so, yes.
Q.
When you examined the item at the range,
what did you do?
A.
I watched the demonstration and then it
was dismantled a little bit -- the internal
components -- and compared to the RPO that was
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brought by the ATF, and then duplicated the same test


results afterwards on other systems.
Q.
Okay. I just wanted to clarify . You said
the RPD provided by ATF. Did you mean the PK?
A.
Yeah, the PK. I'm sorry.
Q.
That's fine. I just want e d to make sure
you were correc t on the record. Did you take any
dimensions or any, I guess, measurements of the
defendant?
A.
Yes. We did take measurements of the bolt
rails and the bolt itself t o see if a full-auto bolt
could fit in the defendant.
Q.
What did yo u determine there?
A.
The bolt used in the defendant and the
bolt rails were from a semi-auto . My findings at the
range was that the bolt and bolt rails were a
different dimension .
Q.
Now, when you say bolt, are you referring
to the actual bolt or are you referring to the bolt
carrier?
A.
Not being that familiar with the PK, I
always just assumed it was the bolt. I wouldn't be
able to tell you the difference between the two.
Q.
So you're not actually sure whether what
you were looking at was the bolt carrier or the bolt
or both?
A.
Correct.
Q.
Or neither at this point?
A.
Correct.
Q.
So you said you took dimensions of the
rails. Do you know what those readings were of the
measurements?

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A.
Not off the top of my head, no . The
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the bolt came out of the defendant, had a larger slot


cut in the bolt itself. The rails were a different
dimension in the receiver. There was a difference in
them .
Q.
Is that difference a critical difference
between a semi-automatic PK and a fully-automatic PK?
A.
The full-aut o bolt wouldn't fit. That was
really the only finding that I f ound .
Q.
Do you know if there' s a specific reason
why semi-automatic PK receivers have an increased
rail size?
A.
I assume it' s so that a full-auto bolt
can't function in the semi-auto.
Q.
So that rail size would be something that
would be a critical element of whether or not a
receiver was semi-automatic or full-automatic?
A.
I would think so , yes.
Q.
Is there any reason why you didn ' t include
that information in your report?
A.
From my standpoint at the time , not being
an expert in PK, the semi-auto and the full-auto bolt
outwardly appear quite similar. And I could see it
very easy, for me at least , not make a distinction .
Q.
Don ' t you think that someone who is an
expert in PK would be a better witness in this case
than someone who admits is not an expert in PKs?
MR . MONROE : Object to the form of the
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quest i on. Answer if you can.


THE WITNESS: 8~ far as the PK, I'm more
interested in the testing procedures used on the
defendant . Now, an expert in PK, I really am
not an expert in that area .
Q.
(By Mr . Foster) Okay. Do you consider
yourself an expert in the testing procedures?
A.
In general, I have knowledge of testing
procedures. I'm hoping I can add some benefit to t he
case for the defendant.
Q.
But specifically, do you consider yoursel f
a n expert in testing procedures of firearms?
A.
Firearms?
Q.
Yes.
A.
I can't make that claim, no, sir.
Q.
Okay . Do you know what the definition of
a firearm is under the Gun Control Act?
A.
I've read the definition. I have a vague
understanding of it; a layman's understanding of it .
Q.
A layman's understanding?
A.
Yes .

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Q.
Can you just sort of paraphrase what that
definition is?
MR. MONROE: I object to the extent it
calls for a legal conclusion. You can answer
the question.
MR. FOSTER: I'm just asking him to state
what the definition is.
MR. MONROE: Sarne objection. Answer if
you can.
THE WITNESS: Okay.
MR . MONROE: If you don't know the answer,
that's okay.
THE WITNESS: The best item I wou l d have
would be the portion of the f irearrn that
attaches the barrel bolt re coil system .
Q.
(By Mr . Foster) Do you know what the
definition of a firearm under the National Firearms
Act is?
A.
Again, it would be a ve ry -- actually, I
would probably be intertwining my layman's
understanding of the two. It wo uld be the same
answer.
Q.
Okay.
A.
Yes.
Q.
I'm going to read t o you the definition of

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firearms under 92l(a), and I just want you to hear it


and say if you think that this is what you believe is
correct.
A.
Okay.
Q.
Title 18 United States Code Section
921 (a) ( 3) says: The term firearm means:
(A) , any
weapon including a starter gun which will or is
designed to or may be readily converted to expel a
projectile by the action of an explosive; (B), the
frame or receiver of any such weapon ; (C), any
firearm muffler or firearm silence r; or (0), any
destructive device.
I'm go ing to stop there. It goes on to
exclude antique firearms at this point.
A.
Okay.
Q.
Actually, I'll just finish, I'm s orry.
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Let me just finish: Such term does not include an


antique firearm.
Is this your basic understanding of what a
firearm is under the Gun Control Act?
A.
Yes, sir.
Q.
Okay. Now, I'm going to read to you the
definition of a firearm under the National Firearms
Act, and I want you to just tell me if that is your
understanding of the National Firearms Act firearm.

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0040
At this time I want to read Title 26
1
United States Code Section 5845(a). Firearm. The
2
term firearm means:
(1), a shotgun having a barrel
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or barrels of less than 18 inches in length; (2), a


weapon made from a shotgun if such weapon has been
modified has an overall length of less than 26 inches
or barrel or barrels of less than 18 inches in
length; (3), a rifle having a barrel or barrels of
less than 16 inches in length; (4), a weapon made
from a rifle if such weapon has been modified has an
overall length of less than 26 inches or a barrel or
barrels of less than 16 inches in length; (5), any
other weapon as defined in section (e); (6), a
machinegun; (7), any silencer as defined in Section
921 of Title 18 United States Code; and (8), a
destructive device. The term firearm shall not
include an antique firearm or any other device other
than a machinegun or destructive device, which,
although designed as a weapon, the Secretary finds by
reason of date of its manufacture, value, design, and
other characteristics is primarily a collector's item
and is not likely to be used as a weapon.
Is that your basic understanding what a
National Firearms Act firearm is?
MR. MONROE: Counsel, are you asking him
if you read the law correctly? I'm not clear
what the question is.
MR. FOSTER: I'm just asking him if that
is his understanding of what a National Firearms
Act firearm is.
MR. MONROE: Well, then I'll object. You
already asked him what his understanding is and
he's already testified to it.
Q.
(By Mr. Foster) We'll move on.
Mr. Messenger, does the defendant meet either of
these definitions?
MR. MONROE: Objection. Call for a legal
conclusion. Answer if you can.
THE WITNESS: Answer if I can?
MR. MONROE: If you can.
THE WITNESS: After reviewing the testing
procedures, I'm under the opinion that it
functions similar to other already available
firearms on the market. And that's where I drew
my conclusion that, you know, if A is a legal
item and this functions under the same
principal, then it should also be a legal item.
Getting into the definitions of what part is or
is not a firearm, I try to stay away from.
Q.
(By Mr. Foster) Now, you just said that
it's similar to other firearms available?
what you --

Is that
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A.
Of their caliber conversion units and
upper receivers.
Q.
So is it a firearm?
A.
I don ' t believe, no .
Q.
So it's your expert opinion that it's not
a firearm?
A.
Correct .
MR. MONROE: Objection . He's testified
that he's an expert in testing procedures; not
in firearms .
Q.
(By Mr. Foster) Does the report conclude
t hat the defendant is not a firearm?
A.
Yes.
Q.
Okay . Are you a ware that Historic Arms
filed an ATF form registering the defendant as a
firearm?
A.
Yes, sir.
Q.
So are you incorrect in your report' s
conclusion that it's a non-firearm or was Historic
Arms incorrect in filing that form stating that it
was a firearm?
MR. MONROE: Object to the form of the
question . Answer if you can .
THE WITNESS: Len filed the report or his
Form 2 before I had a chance to review the
defendant . I disagreed with the classification
that he gave in his Form 2.
Q.
(By Mr. Foster) So you believe that
Mr. Savage made an incorrect statement on his Form 2 ?
A.
I'm not sure . It's a short -- the
s ubmitted sample has a short barrel. I'm not sure if
it was incorrect or not. My opinion is different
than his .
Q.
So you disagree with Mr . Savage , then , i n
that instance?
A.
Yes .
So when you e xami ne d t he defenda nt at the
Q.
Coweta range, can you tell me the basic things that
you saw, the basic components that were before you ?
A.
The defendant itself, the bolt carrier
recoil system, and the lower that captured the re coil
system. Tho se are the primary components that I was
looking at and compared to the PK. I, not being an
expert in the PK, I f o cused more on what was used to
get the defendant t o fire, what components were us e d
to make the defendant fire.
Q.
So f o rgive me, did you say that the
defendant has a receiver or does not have a re ceive r?

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A.
Well, I've been t o ld I use t he terms
incorrectly. I always refer to an upper and l owe r
receiver on the same firearm and then refer t o a
registered receiver as the registered c omponent.
I know that's an incorrect term in the
firearms industry, but I have it in mind the uppe r
portion or the defendant mount e d on a registe red MAC
receiver . And the n, also, I was looking at the
defendant, the upper porti on with the chain
tensioning bolt and backer plates.
Q.
So you sa i d that what you saw is wha t you
call an uppe r receiver?
A.
Yeah, a n upper recei ve r; my terms .
Q.
Your t e rms , not the terms that ATF and FTB
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0045
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uses?
A.
Correct.
Q.
Would it surprise you to learn that what
you called the upper receiver is the registered
receiver, so to speak, as you described it under ATF,
what they consider a firearm?
MR. MONROE: What device are you referring
to?
Q.
(By Mr. Foster) The defendant .
A.
It surprises me.
Q.
It does surprise you?
A.
Well, I was surprised when that
classification was given.
Q.
Now, I know you say that you're not an
expert in PKs, but do you know what the receiver is
on a PK?
A.
No, sir.
Q.
You do not. I have what we'll call just
Object 1 . We won't enter it into the record at this
point or at all . Have you ever seen anything like
Object 1 before?
A.
Yes .
Q.
Do you know what that is?
A.
That would be the upper receiver of the
PK .
Q.
Now, to your knowledge, is that a
semi-automatic or a fully-automatic receiver?
A.
Without comparing it to the rail sizes of
another unit, I wouldn't be able to tell you off the
top of my head.
Q.
Do you know what the technical differences
are between a fully-automatic PK and a semi-automatic
PK?
A.
Above and beyond the rail size, I believe
the semi-auto , I was told, has a blocking bar, which
I believe is t hat piece here.
Q.
What is generally the purpose of a
blocking bar?
A.
I would be making an assumption .
Q.
What is your understanding of the purpo s e
for a b l ocking bar?
A.
To prevent a sear engagement .
Q.
Okay. When you examined the defendant at
the Coweta range, did you no te if there was a
blocking bar?
A.
The defendant, the entire lower po rtio n
was remo ved .
Q.
So there was no blocking bar?
A.
No .
Q.
Okay. You testified that you noted that
there was a different side rail, but that side rail,
you took measurements, but you do not know what tho s e
measurements we re?
A.
Not off the top of my head, no .
Q.
And you did not inc lude that in your
report?
A.
No.
Q.
Now, you said that the defendant used what
you described as a modified PK bolt, but you weren't
sure whether or not that was a modified bolt or
whether it was actually a modified bolt carrier or

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b o th?
A.
Correct.
Q.
What modific atio ns did yo u see?
A.
The slots f o r the rails. I believe the
length of the bolt was slightly different. I'm not
sure if the length was different. I know the slots
were of a different size . That was the main item I
noted.
Q.
And this is the slo t on the left-hand
side?
A.
Yes, sir .
Q.
Now, why would s omeone modify the
left-hand side slot on the b olt carrier or bolt,
whichever one it is?
A.
My understanding would be t o prevent a
full-auto bolt from being installed .
Q.
Well, I'm actually on the bolt. How would
that prevent a full-auto bolt from being installed?
A.
The rails in the full auto being smaller.
Q.
I guess I wasn't c lear . On the
defendant's modified bo lt, you said that the
left-hand side had be en modified; is that correct?
A.
I believe it was the left.
Q.
How had it been modified?
A.
The slots f or the rails were widened .

0048
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Q.
2
rail?

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Why would someo ne widen the slots for the

A.
I would be making an assumption. Off the
top, I couldn't tell you.
Q.
What is yo ur assumptio n?
A.
That it wo uld be to prevent
MR. MONROE: Objectio n. Calls f o r
speculation.
Q.
(By Mr. Foster) What is your
understanding of why someone would modify, widen that
rail?
A.
To prevent full-auto components fr om b e ing
ins t alled .
Q.
Was the bolt that you saw a modified
full-auto bolt?
A.
I knew it was a modified bolt. I believe
that later it came out that it was a modified semi
bolt .
Q.
When you say the defendant was test fired,
did it fire automatically?
A.
With the added chain tension bolt and
plate, it fired full auto and also whenever it was
attached to a registered MAC-10 recei ver.
Q.
So then the bolt that was in there was
capable of a full-automatic fire?
A.

With a lot of modifi cation to the ext e rnal

unit.
Q.
How did those modifications allow it t o
fire automatically?
A.
It captured the recoil system .
Q.
No, no. The modifications on the b olt
themselves .
A.
Oh, the bolt?
Q.
Yes, sir.
A.
The modification of the bolt, I co ul d no t
tell you.
Q.
So what I ' m hearing is you r eally don' t
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k!fOw the di ff e r ences between the PK semi-automatic


and full automatic, which is sort of the crux of this
case, correct?
MR . MONROE: Objection. He's already
testified t hat he's not an expert on PKs .
Q.
(By Mr. Foster) Would it surprise you to
learn that the reason the l eft rails were modified on
that bolt was to allow a fully-automatic bolt to
function in a semi-automatic receive r ?
A.
I would be surprised, yes .
Q.
Mr . Messenger , a t this time I want to put
out Object 2 on the table . Do you know what this is?
A.
It's either an AR-15 or an M16 lower

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0050
receiver.
1
Q.
2
two?
3
A.
4
Q.
5
A.
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Do you know the d ifference between the

Not directly , no , sir.


You do not?
No.
Q.
Okay .
A.
I'm going to assume it's an M16 because
it's stamped auto.
Q.
But as far as physical characteristics,
you do not know the difference?
A.
No , sir, I don't know one and never took
one apart .
Q.
In order for a firearm to be classified a
firearm, must it fire?
MR . MONROE: Objection. Calls for a legal
conclusion. Answer if you can.
THE WITNESS: I've been told no, but
that's the best answer I can give . I've never
truly understood all that.
Q.
(By Mr. Foster) You said that you tinker
wi t h MAC machineguns; is that correct?
A.
Yes.
Q.
I assume you own a MAC machinegun?
A.
Yes .
The MAC machinegun, what is the registered
Q.
part of the MAC machinegun ?
The lower receiver.
A.
Q.
The lower receiver is a f ire arm itself; is
that correct?
A.
Yes .
Q.
Okay. Just like the receiver here of the
PK is a firearm itself?
A.
Yes.
Q.
So then you'll agree with me that this, as
it sits, is a firearm?
A.
Yes .
MR. MONROE: Object to the form of the
question .
Q.
(By Mr . Foster) Is this a firearm? Is
Object 1 a firearm?
MR . MONROE: Objection . Calls for a legal
conclusion. Answer if you can.
THE WITNESS: If it's the registered
component, I say yes.
Q.
(By Mr. Foster) Okay. And the defendant
contains basically a piece similar to Object l; is
that correct?
A.
A heavily modified piece, yes.
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Q.

What were those modifications?

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A.
About right here, this whole lower unit
was removed, the whole bottom section was removed,
and the upper portion of the MAC adapted into it.
Q.
What is the purpose of that bottom section
where you were saying was removed?
A.
Without knowing a lot about the PK, I
really couldn't tell you. I would be making some
grand assumptions.
Q.
Okay . But that area, to your knowledge,
based on your limited knowledge, that area would not
be the area that holds the fro nt trunnion, which
allows for the barrel t o attach?
A.
No.
Q.
And that area also is not the area that
would be whe re the rear trunnion is attached?
A.
I believe not, yeah.
Q.
And that area is not an area that's used
to contain the bolt?
A.
I'm not sure if it does or not . That
would be an area that I would question not being
familiar with it .
Q.
So you're not sure whether or not the
defendant was a firearm or not?
A.
Correct.
Q.
So then the defendant may have been a

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A.
I'm not sure if it was or not.
Q.
So then your report is actually incorrect
because you stated it was not a firearm, but now
you're saying that it may have actually been a
firearm?
A.
My report was c omparing o ther systems that
functioned in the same manner. That's where I drew
my conclusion .
Q.
But is your report incorrect?
MR . MONROE: Asked and answered.
MR . FOSTER: I disagree. He said, My
report was based on this. He didn't say whether
yes or no it was correct.
Q.
(By Mr. Foster) Was your report's
conclusion correct?
A.
I still think the report is correct
because -- well, I would be making a conclusion
outside of my area o f knowledge. This is a
registered component. I'm not sure if the modified
version is a registered component since it doesn't
function as it was intended.
Q.
Are you familiar with the destruction
requirements to take a PK receiver from being a PK
receiver into just nothing?

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A.
No, sir.
1
2
Q.
So then you truly don't know whethe r o r
3
not the modifications made to it were enough to take
it out of the realm of being a firearm?
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A.
I guess s o .
Q.
So then your conclusion that it was a
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non-fireman is based on no legal knowledge or no


knowledge of destruction practices of PK firearms?
A.
Correct.
Q.
Going to what ATF did attach, could you
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explain what ATF attached to the defendant to make it


fire automatically?
A.
They used a piece of aluminum plate that
was placed over the rear of the upper, wrapped a
chain around the plate to hold it in place, the chain
went around the forward section -- which I believe
was a handgrip or a gas cylinder -- and a tensioning
bolt was used to draw the chain up tight.
That worked at capturing the recoil, and
then the unit was held against a set of sandbags, and
the charging handle substituted as the trigger
mechanism.
Q.
In your report, did you not say that the
sandbags would be -- you would have to include them
as part of the test?

A.
I believe so, because it was the anchorage
point for the firearm.
Q.
Do you think there's no way that firearm
could be fired without sandbags?
A.
With the open bottom, it would be
dangerous.
Q.
Could it be done?
Could it be done? I suppose on some level
A.
it could. I would not recommend it.
Q.
Would it surprise you to know that it has
been done?
A.
Well, okay.
Q.
Is whether or not a firearm safely fires
automatically a requirement of being a firearm?
MR. MONROE: Objection calls for a legal
conclusion. Answer if you can.
THE WITNESS: I have been t old and I
understand that, no , i t is not a requirement.
(Plaintiff's Exhibit 1 was marked for
identifi cat ion.)
Q.
(By Mr. Foster ) I ' m going to intr oduce
into the record a copy of your report.
Mr . Messenger , will you please look at Exhibit 1.
A.
Okay.
Q.
Does this look familiar to you?
A.

Yes.
Can you tell me what that is?
That's the report that I prepared, yes.
Q.
Now, you stated that you're not a firearms
e xpert in classifications?
A.
Yes.
Q.
You're not a PK machinegun expert?
A.
Correct.
Q.
But you're an expert in general
classifications; is that correct? What was your
expertise?
A.
Testing procedures .
Q.
General
General testing.
A.
Q.
Could you turn to the Conclusion of your
r eport .
A.
Yes.
Q.
Where in there do you make a conclusion
regarding the testing procedures?
A.
I did not.
Q.
What was your conclusion r e ga r di ng ?
Based on the test us ed, t he defendant
A.
Q.
A.

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operated in a similar fashion, the same fashion , as


ot her legall y obtainable i t ems on t he ma rke t.
Q.
There ' s a speci f i c s e ction that has a
bfilded area.
A.
Yes .
Q.
Could you read that sentence?
A.
Let ' s see . "Based on the comparative
results of these tests, the Historic Arms 54RCCS
Caliber Conversion Unit is not a fir e arm or a
machinegun i n and of itself ."
Q.
So that sentence , which seems to be sort
o f the crux of your conclusion -- is that correct?
A.
Yes .
Q.
-- but you're making a conclusion about
something which you ' re not an expert on or you ' ve
testified you're not an expert on , correct?
MR. MONROE: Objection . Asked and
answered.
Q.
(By Mr . Foster} You can answer even
though he's objected . His object i on is noted on the
record.
A.
Okay . I drew my conclusion based on the
testing procedures used.
Q.
But you didn't cite those testing
procedures i n your Conclusion?
A.
Correct .
Q.
And the conclusion is not that the testing
p rocedures were flawed, it ' s that this is not a
firearm, correct?
A.
Correct .
MR. FOSTER: Let ' s ta ke a few minutes '
break here. We're very close to wrapping up, I
think.
MR. MONROE: Okay.
(Recess from 10 : 53 a.m. to 11:10 p.m.)
MR. FOSTER: At this time Mr. Messenger,
we have no further questions for you.
MR. MONROE: I don't have any questions.
(Deposition concluded at 11:10 a . m.)
(Pursuant to Rule 30(e) of the Federal
Rules of Civil Procedure and/or O.C.G.A.
9-ll-30(e), signature of the witness has been
reserved.)

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0059

INDEX TO EXAMINATIONS

Examination

Page

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Cross-Examination by Mr. Viscomi


Cross-Examination by Mr. Foster

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'

INDEX TO EXHIBITS

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Plaintiff 1 s
Exhibit

Description

Page

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1

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Report

55

(Original Exhibit 1 has been attached to the


original transcript.)

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C E R T I F I C A T E
STATE OF GEORGIA:
COUNTY OF FULTON:
I hereby certify that the foregoing
transcript was taken down, as stated in the
caption, and the questions and answers thereto
were reduced to typewriting under my directi on;
that the foregoing pages 1 through 58 represent
a true, complete, and correct transcript of the
evidence given upon said hearing, and I further
certify that I am not of kin or co unsel to the
parties in the case; am not in the regular
employ of counsel for any of said parties; nor
am I in any way interested in the result of said
case .
This, the 18th day of September, 2009.

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YOLANDA R. NARCISSE, CCR-B-2445

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COURT REPORTER DISCLOSURE


[ORIGINAL ON FILE)

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Pursuant to Article 8 . B. of the Rules and Regulations


of the Board of Court Reporting of the Judicial
Council of Georgia which states: "Each court reporter
shall tender a disclosure form at the time of the
taking of the deposition stating the arrangements
made for the reporting services of the certified
court reporter, by the certified court reporter, the
court reporter's employer, or the referral source for
the deposition, with any party to the litigation,
counsel to the parties or other entity. Such form
shall be attached to the deposition transcript," I
make the following disclosure:
I am a Georgia Certified Court Reporter. I am
here as a representative of Huseby, Inc. Huseby,
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Inc. was contacted to provide court reporting


services for the deposition. Huseby, Inc. will not
be taking this deposition under any contract that is
prohibited by O.C.G.A. 15-14-37(a) and (b).
Huseby, Inc. has no contract/agreement to
provide reporting services with any party to the
case, any counsel in the case, or any reporter or
reporting agency from whom a referral might have been
made to cover this deposition. Huseby, Inc. will
charge its usual and customary rates to all parties
in the case, and a financial discount will not be
given to any party to this litigation.
YOLANDA R. NARCISSE, CCR-B-2445

DEPOSITION OF WILLIAM N. MESSENGER, PE, CBSI/JRN


I do hereby certify that I have read all
questions propounded to me and all answers given by
me on the 18th day of September, 2009, taken before
Yolanda R. Narcisse, and that:
1)

There are no changes noted.


The following changes are noted:
Pursuant to Rule 30(e) of the Federal Rules of
Civil Procedure and/or the Official Code of Georgia
Annotated 9-ll-30(e), both of which read in part:
Any changes in form or substance which you desire to
make shall be entered upon the deposition ... with a
statement of the reasons given ... for making them.
Accordingly, to assist you in effecting corrections,
please use the form below:
2)

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should read:

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If supplemental or additional pages are necessary,


please furnish same in typewriting annexed to this
deposition.

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WILLIAM N. MESSENGER, PE, CBSI


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Sworn to and subscribed before me,


This the
day of
, 20
Notary Public
My commission expires:

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IN THE UNITED STATES DISTRICT COURT


FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

UNITED STATES OF AMERICA,


Plaintiff,

CIVIL ACTION
vs.

6
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8
9

ONE HISTORIC ARMS MODEL


54RCCS A7.62X54R CALIBER
CONVERSION SYSTEM@
MACHINEGUN, SERIAL NO. Vl,
Defendant.

FILE NO.
1:09-CV-0192-GET

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DEPOSITION OF
ORIN B. HARDING
September 15, 200 9
1:00 p.m.
2600 Century Parkway, NE
Suite 300
Atlanta, Georgia

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Yolanda R. Narcisse, CCR-B-2445
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0002
1
APPEARANCES OF COUNSEL
2
3
On behalf o f the Plaintiff:
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G. JEFFREY VISCOMI, Esq.
U.S. Department of Justice
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United States Attorney's Office
75 Spring Street, SW
6
Suite 600
Atlanta, Georgia 30303
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(404) 581-6036
(404) 581-6181 (Facsimile)
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jeffrey.viscomi@usdoj.gov
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HARRY R. FOSTER, III, Esq.
U.S. Department of Justice
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Bureau of Alcohol, Tobacco, Firearms &
Explosives
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2600 Century Parkway, NE
Atlanta, Geo rgia 30345
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(404) 417-2696
(404) 417-2691 (Facsimile)
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harry . foster@atf.gov
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On behalf of the Claimant:
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JOHN R. MONROE, Esq.
16
Attorney at Law
9640 Coleman Road
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Roswell, Georgia 30075
(678) 362-7650
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(770) 552-9318 (Facsimile)
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john.monroel@earthlink . net
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Also Pre sent :
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Mr. Len Savage, Claimant; President, Historic


Arms, LLC
Mr. Mason Kingery, Firearms Technology Branch,
Bureau of Alcohol, Tobacco, Firearms &
Explosives

(Reporter disclosure made pursuant to


Article 8.B. of the Rules and Regulations of the
Board of Court Reporting of the Judicial Council
of Georgia.)
ORIN B. HARDING,
having been first duly sworn, was examined and
testified as follows:
CROSS-EXAMINATION
BY MR. VISCOMI:
Q.
Good afternoon, Mr. Harding.
A.
Good afternoon.
Q.
My name is Jeff Viscomi with the United
States Department of Justice U.S. Attorney's Office.
For the record, in the room we have Max Kingery and
Harry Foster both from ATF; Lynn Savage of Historic
Arms; John Monroe, counsel for the claimant; Historic
Arms.
Mr. Harding, can I j ust ask you to state
your full name for the record.
It's Orin Briggs Harding.
A.
Q.
Where do you currently live?
A.
703 Pleasant Drive, Greensboro, North
Carolina.
Q.
Are you currently employed?
A.
No.
Q.
Can you tell me whe re you graduated from
high school?
A.
I completed 12 years at Chapel Hill High,
failed one grade, so I had to take the GED right
after high school.
Q.
When did you complete that?
A.
November of '62.
Q.
What did you do after you completed the
GED?
A.
I was in the Air Force. My first job
after the Air Force of four years' service, I worked
for a company called Industrial Nucleonics.
Q.
If I could just stop you there for a
moment. Going back to the Air Force, can you tell us
what you r assignment was in the Air Force?
A.
Airborne navigational equipment repair.
Q.
What do those duties entail? Can you
elaborate a little bit for us?
A.
Repair electronics equi pment. I would
troubleshoot and repair.
Q.
Did you receive training for that?
A.
Yes.
Q.
Could you describe what training you
received?
A.
18 weeks of basic electronics and then

0005

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18 weeks of what they called SETS at the time, which


was the actual equipment.
Q.
What kind of equipment was it?
A.
I can use the technical terms; Omni,
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TACAN, LORAN, SHORAN, ground search radar, airborne


radar.
Q.
So are these all primarily radar systems?
A.
No. They're navigational systems.
Q.
After you completed that assignment, were
you assigned to do something else in the Air Force?
A.
Yes. I taught electronics for a while
when I was overseas.
Q.
Did you teach the same topics?
A.
Yes, same topics.
Q.
Navigational equipment?
A.
Yes.
Q.
Was that your last assignment in the Air
Force when you were on active duty?
A.
When I was on active duty.
Q.
When did you complete active duty?
A.
June the 10th, 1966.
Q.
Were you a reservist after that?
A.
Yes; but there was a break in service.
After the break in service, I went back in in '79,
and my first assignment was with a group in
Charleston Air Force Base Reserve.
Q.
When you were in Charleston, that's when
you went back in the service?
A.
That's right; as a reservist.
Q.
As a reservist. Now, in 1966, you
completed your tour of active duty?
A.
Correct.
Q.
What did you do after you left?
A.
My first job was with Industrial
Nucleonics in Columbus, Ohio. I was stationed in
Richmond, Virginia. I was only there about three
months and I went to work for Honeywell.
Q.
What did you do for the Nucleonics -A.
They had a density measuring control
system. It was in a cigarette factory, and they
monitored the density of the cigarette using a
strontium 90 beta source. From that, they controlled
the feed of the cigarette-making machine to keep the
density of the cigarette constant.
Q.
You said you did that for three months?
A.
About three months, yeah.
Q.
What did you do after that?
A.
I went to work for Honeywell.
Q.
What did you do for Honeywell?
A.
First, I was in industrial instrumentation
repair. I went to school from November of 1 66
through February of '67. Then I was in the field for
about two years as a repairman, and then I started
design work and running projects. We would sell the
installation of factories, all the instrumentation
for fac tories. My job was to see that the design was
right for the control systems and also to get them
installed properly.
Q.
This equipme nt -- I'm sorry, go ahead.
A.
You know, I ran installation crews.
Q.
Was there any particular kind of factory
that your work with Honeywell focused on? Was it
related to electronics or was it just any kind of
factory?
A.
Any kind of factory.
What would you say your duties included
Q.
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besides overseeing the installation of the equipment?


A.
Well, I was responsible for the design of
the actual control systems that were installed in the
factory, be it pressure temperature, whatever. It
was my responsibility to select the instrumentation,
make sure it was installed properly, and make sure it
operated properly.
Q.
On the professional experience information
that was provided by Mr. Monroe to me, it mentioned
something called grand radio repair.
Ground.
A.
Q.
Ground radio repair? Okay. There was a
typo. Was that
A.
That was in the Air Force.
Q.
That was in the Air Force while you were
on active duty?
A.
No. That would have been when I went into
the National Guard.
Q.
When was that?
A.
'82, I think.
Q.
Also listed was satellite systems repair.
A.
I went from ground radio into the
satellite systems. Honeywell transferred me back to
North Carolina along about that time.
Q.
What time would that be?
A.
Well, let me see. Let me get my dates
right. I went to Florida in '83, and that's when I
went into ground radio. And then I came back to
North Carolina in '86, and that's when I went into
the satellite systems. And because the unit that I
joined in North Carolina didn't have a position for
me in ground radio, I cross-trained over into
satellite systems.
Q.
The ground radio and satellite systems

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work that you did for Honeywell


No, no, this was with the Air Force.
A.
Q.
I'm sorry, with the Air Force, my
apologizes -- that was after you had done this
industrial installation work with Ho neywell?
Correct.
A.
When did you move on from the industrial
Q.
installation work?
A.
1975.
Q.
What did you do after that?
A.
I went into conunercial building
instrumentation and control buildings like this in
Richmond. I went in their engineering department for
a year. And then after that, I went back into sales.
Q.
Can you just briefly describe for us
exactly what that involves, what you were doing in
that field?
A.
When I was in the engineering department,
I designed control systems and selected the
equipment. And then the project manager would take
my drawings and my equipment list and go to the job
and actually do the physical installations.
Q.
How did you learn how to create these
systems?
A.
Just OJT; on-the-job training. There were

0010
a smattering of Honeywell schools that I went through
1
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These brief schools, how long would they

last?
A.
Q.
A.

Anywhere from a day to two to three weeks.


You would go full time during that period?
Yes.
Q.
Did they grant you any sort of, they being
Honeywell, were you granted any sort of
certificates -A.
No.
Q.
-- or recognition for these?
A.
Well, you would get certificates of
completion of training. I used to have a whole stack
of them, but that's it.
Q.
And again, in the material provided to me
by Mr. Monroe, it stated from '75 to 1990, you worked
in automation systems theory and design. Is that
what you previously described to us?
A.
Yes .
Q.
And that's related to these commercial
buildings?
A.
Well, from '75 to '90, yes, it would have
been
Q.
That encompassed everything?

0011
1
A.
That encompassed the commercial portion of
it. Prior to 1985, was the industrial portion of it.
2
Q.
I see . You attended Guilford Technical
3
Community College?
4
5
A.
Yes.

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Q.
Can you tell us what you studied there.
A.
It was a basic machine shop course on how
to use a lathe, how to use a milling machine. That
type of thing.
Q.
How long did you attend that program?
A.
It was four quarters. I went fall and
spring quarter for two years.
Q.
I see. Was that a degree-granting
program?
It would have been if I would have taken a
A.
few other courses.
Q.
What classes specifically did you take?
Can you tell us?
A.
I took the shop practice course. I wanted
to learn how to use a milling machine and a lathe,
and that's what I took.
Q.
Was anything you studied at Guilford
Technical College related to firearms spec ifically?
A.
No. There's no school that I'm aware of
that you can go to for firearms design.

Q.
Then finally, the informatio n provided to
me mentioned that you received some CAD/CAM
programming training; is that correct?
A.
I taught myself. Well, I did some online
webinars when I first started that.
Q.
What was your end goal with studying the
machine shop practices?
A.
To be able to make parts myself instead of
having to pay someone to make them.
Q.
Parts for?
A.
Anything. You know, a lathe and a milling
machine is a generic tool. So it was just general
knowledge.
Q.
Has there e ver b een a point where you
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received any formal firearms training?


A.
No.
Did you receive any sort of
Q.
firearms-related training in the Air Force?
A.
Sure. Not as a firearms repairman and not
as an armorer, as they're typically called, but as a
user; how to use the weapon, how to clear
malfunctions. Those types of things.
Q.
So you have not attended a gunsrnithing
school?
A.
No.

0013
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firearms?
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Have you ever toured a manufacturer of

A.

Yes.
Which ones?
A.
Ohio Rapid Fire.
Q.
Do you recall approximately when that was?
A.
There's several times starting in probably
2003 or '4. Somewhere in that timeframe.
Q.
While you were on these tours, did you
receive any sort of instruction?
A.
I was there to help them set up the
manufacturing of items that I had designed.
Q.
Firearms-related items?
A.
Yes.
Q.
What items were those?
A.
The first project I worked on with them
was the Thompson. Then we did the VC-58,
Czechoslovakian VC-58, and then the FN-FAL.
Q.
That's it?
A.
That's all I can think of off the top o f
my head.
Q.
That's fine. Have you toured any other
manufacturers?
A.
No.
Q.
Do you have or have you had any ATF
Q.

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0015

licenses?
A.
In the early '90s, I had an FFL; late '80s
or early '90s.
Q.
Why do you no longer have it?
A.
I got tired of the paperwork.
Q.
It was not revoked from you?
A.
No. I turned it in.
Q.
You let it expire?
A.
Yeah, I let it expire.
Q.
Have you had any other licenses?
A.
ATF licenses?
Q.
Yes.
A.
No.
Q.
Have you had any, not driver's license,
but firearms related?
A.
No.
Q.
What about professional licenses?
A.
No.
Q.
Have you been to law scho ol?
A.
No.
Q.
Have you ever attended a seminar related
to the law related to firearms?
A.
Not that I recall. I've sat in on
seminars. No, not really, I wouldn't say.
Q.
Have you ever classified a firearm on
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behalf of a federal agency?


A.
No .
Q.
Have you ever classified a firearm for any
other body?
A.
No.
Another country?
Q.
A.
No.
Q.
Have you ever testified in a legal
proceeding regarding classification of a firearm
under the NFA?
A.
No.
How about regarding classification under
Q.
the Gun Control Act?
A.
No.
Q.
Have you ever b een called in to consult on
a firearms classification prior to this case?
A.
Could you expand on that?
Q.
Well, has any person or entity contacted
you and asked for your input on a firearm that is
either pending classificatio n o r has been classified?
I can rephrase that if you'd like.
A.
I'd like.
Q.
Has anybody contacted you and asked your
opinion on the classificatio n o f a firearm? For
instance, they have a firearm that's been classified

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and they've asked your opinion on that


classification. Similar to what you're doing in this
case.
Other than -A.
Q.
Other than this case .
A.
No; because I don't know that I've been
no .
Q.
Would you describe yours e lf as a gun
enthusiast?
A.
Yes.
Q.
How l o ng would you de scribe yourself as
having been so?
A.
Well, yo u can do the math. I'm 65, and I
bought my first gun when I was ten.
Q.
So 55 years, approximately?
A.
(Witne ss nods head in the affirmative.)
Q.
You've ne ver undertaken any formalized
study of firearms?
A.
What is your definition of formalized
study?
Q.
Well, any training that would be provided
by some sort of acc redited body.
A.
No.
Q.
Be it the NRA or any s o r t o f institution
or the Government .

0017
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A.
No.
Q.
Have yo u ever publ ished any writings abou t
2
either your professio nal fields or fir e arms?
3
4
A.
No. I've had my designs talked about.
Q.
Okay .
5
A.
By other authors .
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Q.
firearms?

A.
Q.
A.
Q.

Well, let me ask you, have you designed


Yes.
Have you d &signed firearms' parts?
Yes.
Approximat ely how many f irearms have you
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designed?
A.
Q.

That's a very open-ended question.


Well, I was provided with a list on your

A.

Right.

CV.
Q.
I can actually show you a copy.
see i f I have a clean one.

Let me

A.

If you'd like me to go through the list.


Well, I don't necessarily need you to
recite the list to me, but my question is whether
this is an exhaustive list of the firearms that
you've designed.
A.
Well, yeah.
Q.

0018
1
Q.
You have about ten, eight or ten,
depending on how you classify these that say you
2
designed the semiautomatic fire control groups f o r
3
the following.
4

s
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A.

Yes; and then I list them.


Then you have another approximately nine,
I think, that you reversed engineered the following
machinegun receivers with modifications to allow
semiautomatic firing only?
A.
Right.
Q.
Are there any others that you've worked on
that you haven't listed here?
Q.

A.

No.

Could you explain to me what it means to


reverse engineer a machinegun receiver to allow
semiautomatic firing only?
A.
To begin with, you have to understand what
ATF typically looks for. Let me back up. The things
that I have worked on were all originally
machineguns. And so you have to have some knowledge
of what ATF is looking for in a semiautomatic
receiver that is designed based on a machinegun; what
features are they looking for in a redesigned
receiver that can only be used for semiautomatic
firing.
Q.

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In a hundred percent of the cases, you


start off with bits and pieces of previously
demilitarized receivers that have been destroyed per
the ATF guidelines at the moment it was destroyed,
because those guidelines are a moving target and they
change. The first thing you have to do is figure out
how long the original piece was and where these bits
and pieces that you have would have fit within that
area.
Then you look at all machining features
that are there and start developing -- I use a
three-dimensional CAD program, solid modeling, if you
will, program -- and you literally try to recreate
the receiver on the screen as accurately as you can
based on the pieces of paper that you have or pieces
of receiver that you have.
Once you get that design done, you now
have on the screen what would have been a fully
automatic receiver, and now you start modifying it
and adding features that would make it a
semiautomatic receiver.
Q.
So, correct me if I'm wrong, because
especially in this company I'm a novice when it comes
to firearms, what that essentially means then is you
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find a way to demilitarize or destroy, in lay terms,
0020
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a firearm and then put it back together?
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A.
I get it.

No.

It's already been demilitarized when

Q.
Okay. So it's demilitarized, and you take
those pieces and put them back together?
A.
On the screen.
Q.
On the screen?
A.
On the computer, yes.
Q.
To create a semiautomatic firearm?
A.
Design.
Q.
Are you familiar with what the current
guidelines for demilitarization of a machinegun
receiver are?
A.
Well, they're different for each weapon.
Q.
Are you familiar with demilitarizing a PKM
machinegun receiver?
A.
I haven't specifically looked at that, but
there is a manual that the ATF publishes that tells
you the guidelines for demilitarizing .
Q.
Do you know whether or not saw cutting is
acceptable to demilitarize a PK receiver?
A.
It used to be. It isn't now.
Q.
Do you know when the guidelines changed?
A.
Not really. Some time in the late
'90s/early 2000. Some time in that timeframe. It's

been quite a while.


Q.
But in your experience, the guidelines
vary essentially item by item?
A.
Yes.
Q.
Now, what you've described thus far seems
to be primarily things you've designed on the
computer, correct?
A.
Correct.
Q.
Have you actually manufactured any either
prototypes or finished fire arms?
A.
The VC-58.
Q.
The Chzech assault rifle?
A.
Yes . And right now the FAL receiver.
Q.
Were those prototypes or were they, in
your mind, a finished product?
A.
Well, you know, the first ones were
prototypes. And then you go back and find out where
you made errors and correct it, and produce operable
weapons after that .
Q.
Have you produced operable weapons?
A.
Not personally. They we re produced by
Ohio Rapid Fire.
Q.
So you provided them with a prototype?
A.
No. I provided them with drawing.
Q.
Okay. With the drawings?

25
0022
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A.
And then I went to their factory and we
2
built the first prototype there .
3
Q.
Have you personally machined a gun?
4
A.
No.
5
Q.
These prototypes that we've discussed, are
6
they tangible products or are they on a computer?
7

8
9

10

A.

Tangible products.
Who machined tho se?
A.
Well, I assisted with it, but they're done
on CMC equipment .
Q.

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Q.
CMC being?
A.
Computer Merit Control. So you have the
machinist there that runs the machine, and he
programs the machine the way I tell him to, and then
the machine makes the part.
Q.
I see. So based on what you make and
CAD/CAM, the machine is programmed to make the part?
A.
That's correct.
Q.
Now, have you relied on the Firearms
Technology Branch, FTB, to classify your designs in
the past?
A.
Some of them.
Q.
Can you tell us which ones, if you know?
A.
The MG-15 receiver I sent in. The ST-61,
which is the same as the MG-15, virtually. I also

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sent in some stuff I didn't even think about. A


Vickers sideplate, an incomplete receiver. I sent in
an M-1919 Browning incomplete receiver.
Q.
Let me ask you, why did you submit these
items to FTB?
A.
Life insurance. It's not a requirement
that you submit items to FTB. There's not a legal
requirement for you to do that, but if you do submit
them to FTB and they give a classification letter
approving your design, then you feel like you're safe
in producing that item without potentially having ATF
coming at you later on.
Q.
In the case of the items you've sent to
FTB, did you agree with the classifications you
received?
Not always.
A.
Q.
Can you tell us which ones you disagreed
with?
A.
I submitted a question. It was not an
I didn't submit an item.
I submitted a question.
It
was some years ago before the German MG-42
semiautomatic had been classified. It had been
classified as a rifle, and I sent in a letter
requesting that it be classified as a firearm.
I received a positive classification back,

0024
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and then two or three weeks later, they sent me

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another letter rescinding the first classification


and classifying it as a rifle. I think that
classification is in error, but it wasn't worth
arguing the point.
Q.
Are there any other classifications of
your items that you've disagreed with?
A.
No. I've disagreed like when I sent in
the Browning 1919 incomplete plate. They just sent
back a letter and said, no, it's not an incomplete
plate. So I got back in touch with FTB and said,
Well, what do I need to change.
I mean, for them to just send back a
letter and say, no, it's not complete, but not give
you any guidelines as to what you need to do to make
it an incomplete plate, that to me seemed to be a
waste of time. So I wrote back and sent the part
back. They responded and showed me what they wanted
changed.
Q.
So they were able to resolve your issue on
that case?
A.
Sure. Yes, they were able to resolve that
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issue . I think they should have resolved it in the


begi nning. I mean, if it would have been a
completion of the point.

25
0025
Q.
Stepping back to some of the firearms or
1
parts that you've designed, are your designs
2
original?
3
4

5
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A.
Yes and no. I don't think any firearm is
an original design. Everybody draws on designs from
the past to design a new product. The shape, size,
curves may be different, but they all draw on
previous art .
Are there specific previous designs that
Q.
you've relied on?
A.
Not nothing specific; it really depends on
the application .
Q.
So did you then generally start from
scratch when you would design a firearm?
A.
Sure, yes.
Q.
Did you ever design copies, as well?
A.
What do you mean by that?
Q.
Were there e ver instances where instead of
starti ng from scratch, you started with an existing
firearm and then built o ff o f that?
A.
All of them start with an existing
firearm ; all of the designs that I've done .
Q.
Have you ever testified as an expert
before?
A.
No.
Q.

I'm including d e positions in that, as

well.
A.
No.
Q.
Have you ever been retained as an expe rt
in a case before?
A.
No .
Q.
Have you been retained as a c onsultant on
a case?
A.
Unpaid, yes. I mean . ..
Q.
Can you tell us about that .
Well, I was asked to show up at the Ernie
A.
Wren trial -- that's been several years ago -potent i ally to discuss, I think they wanted me to
talk about the Maxum machinegun, but I was never
called.
Q.
Who asked you to show up at that?
A.
Ernie Wren.
Q.
He's the person who contacted you?
A.
Yes. As I recall, he was. I talked to a
lot of people at that time, but I believe it was
Ernie who asked me.
Q.
You did show up at the tri al?
A.
Yes ; it was in Columbia, South Carolina.
Q.
Di d you pay your own way to get down
there?

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0027
1
A.
Yes.
2
Q.
Who first contacted you about testifying
in this case?
3
4
I guess Len did, Len Savage.
A.
5
Q.
Prior to him contacting you, were you
aware of the facts and circumstances that led t o
6
7
this?
8
A.
Only on the surface. I knew that Le n had

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a design that he had submitted that there was some


question about, but I didn't know hardly any of the
details .
Q.
Did you learn about that from Len or from
another source?
A.
From Len .
Q.
Do you recall what you were originally
told when you were asked to participate in this case?
MR. MONROE: I'll object to the extent
that you're seeking anything that's privileged
or work product. I'm not sure exactly what
you're asking.
Q.
(By Mr. Viscomi) I'm not asking f o r any
communication from Mr. Monroe, but when Le n
originally contacted you.
MR . MONROE: Well, that could be
privileged or work product. So I'm no t sure
exactly what you're asking for.
Q.
(By Mr. Viscomi) Well, I'll rephrase it.
When Len originally spoke to you about participating
in the case, did he provide you with additional
information on the firearm that he designed, the
defendant firearm ?
A.
No.
Q.
When did you first receive detailed
information about the defendant firearm?
A.
It depends on what you call detailed. The
first time I knew what it was was when I saw it at
the test firing.
Q.
At the Coweta County test firing?
A.
Yes .
Q.
So prior to that you've never seen this -had you seen a drawing or a schematic of it?
A.
No.
Q.
Had Len described it to you?
A.
Only in general terms.
Q.
Based on his description, did you have an
opinion on whether or not it was a machine gun at that
point?
A.
Not really.
Q.
You were shown the ATF classification
letter that was provided to Mr. Savage regarding the
defendant firearm?
A.
It seems like I was shown it just before
we went to the test firing or it was e-mailed to me.
I don't remember now which, but I had seen it just
before the test firing.
Q.
At that point, did you get a chance to
read it over?
A.
Yes, of course.
Q.
What was your opinion of it?
A.
I don't know that I had an opinio n at that
point because I hadn't seen the device .
Q.
When you were retained or hired in this
case, however you want to phrase it, were you told
what the issue would be as to rendering an opinion
on?
A.
Yes.
Q.
What was that issue?
A.
To look at the item and render my opinion
as to whether or not it was a rnachinegun .
Q.
Were you told how to go about rendering
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that opinion?
A.
No.
Q.
Besides the FTB classification letter that
you just mentioned, were you provided any other
documents to that end to rendering your opinion?

0030
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A.
Not that I recall.
Q.
Were you given any samples of firearms or
other firearms to look at?
A.
No.
Q.
Did you receive any specific instructions
about how you were to go about in rendering your
opinion?
A.
No.
Q.
You prepared a report?
A.
Yes.
(Government Exhibit 1 was marked for
identification. )
Q.
(By Mr. Viscomi} I'm showing you what's
been marked as Plaintiff's Exhibit 1. Do you
recognize this?
A.
Yes.
Q.
What is it?
A.
This is the report that I wrote after I
had observed the test firing at the Coweta County
Range.
Q.
Did anybody assist you with the
preparation of that report?
A.
No.
Q.
Were you given any instructions as to what
the report was to contain?

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No.
Once you completed that report, did you
discuss it with anybody?
A.
Sure. You know, I sent a copy of it to
Mr. Monroe.
Q.
I'm not asking you for the substance of
any discussions you had with Mr. Monroe, but after
you sent that report, did you have discussions with
him about the content of the report?
A.
With Mr. Monroe?
Q.
Yes.
A.
No, I did not.
Q.
How about with Mr. Savage?
A.
Yes.
Q.
Were you asked by anybody to make any
edits to your report based on discussions yo u had
after you prepared it?
A.
Absolutely not.
Q.
So that report, as you have provided it to
us, is the
A.
Is the work product of myself .
Q.
Okay . It's the final one? No drafts?
A.
Correct . Oh, I'm sure I did a draft to
edit. Nobody saw that draft.
Q.
That was exactly what I was going to ask
A.
Q.

0032
l

2
3
4
5
6

you. Thank you. Now, are you being paid to


participate in this case?
A.
No.
Q.
You're not?
A.
No.
Q.
Are you receiving reimbursement for your
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travel expenses?
A.
Not at this time .
Q.
Do you anticipate being reimbursed for
your travel expenses?
A.
I would like to be, but I don't anticipate
it .
Your preparation of that report, are you
Q.
being paid for preparing that?
A.
No .
Q.
Were you paid to travel to the Coweta
County Testing Range?
A.
No. I haven't been paid at all in regards
to this case . That should cover it all .
MR. VISCOMI: That does. At this time, I
don't have any further questions. My co -counsel
is going to take over the questioning. I don't
know if you want a few minutes before we start.
Do you want to take a break?
MR. FOSTER: Let's all take a five- minute
break .
(Recess from 1:38 p . m. to 1 : 58 p . m. )
MR. FOSTER: Let's mark the CV as
Government's Exhibit 2.
(Government Exhibit 2 was marked for
identification.)
Q.
(By Mr. Foster) Mr. Harding, just for the
record, do you recognize what's been marked as
Government's Exhibit 2?
A.
Yes, I do.
Q.
And that is, sir?
A.
My CV.
Q.
I t is your CV. I'm going to back up a
little bit here. Going back to when you first
encountered or heard about the Defendant firearm, do
you recall where that was or what setting?
A.
I'm sure it was over the phone.
Q.
It was over the phone . And that would be
you heard it from Mr. Savage?
A.
Savage.
Q.
And he just said something along the lines
o f , hey, Orin, I've made this thing . What do you
think?
A.
I think it was past this point. I think
it was when you had -- that whole issue about the
Form 2, and all that, about how it was going to be
classified. I think that was about when I heard
about it .
How would you describe your relationship
Q.
with Mr. Savage?
A.
He's a personal friend .
He's a personal friend?
Q.
A.
Yes .
Q.
Have you two collaborated in the past on
different firearms' projects?
A.
Yes.
Q.
So you learned about this from Mr. Savage,
about the defendant firearm. Prior to the learning
of that, how many previous contacts did you have with
Mr. Savage or Historic Arms?
A.
You know, that's really a hard question,
because Len is my friend. Sometimes, you know, we
get on the telephone and talk about dogs. So I can't
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answer that. I've known him for years.


Q.
That was my next question. When did you
meet him, approximately?
A.
I don't know. '02, '03; somewhere along
there.
Q.
So about five years ago?
A.
Five, six years ago.

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Q.

How did you meet? What circumstances?


Didn't we meet at Knob Creek?
MR. MONROE: It's your deposition.
THE WITNESS: I think we met at Knob
Creek, which is a machinegun shoot. I honestly
don't remember, but I believe that's right.
Q.
(By Mr. Foster) From this personal
relationship, did a business relationship evolve,
also?
A.
Yes.
Q.
So you've consulted with him?
A.
Yes.
Q.
And he's consulted with you?
A.
Yes.
Q.
Have you ever been paid for either
consulting with or for him?
A.
Yes.
Q.
You have?
A.
(Witness nods head in the affirmative.)
Q.
Do you mind if I ask how much?
A.
It was the SG-43. Len didn't pay me
direct. It was paid through Century Arms.
Q.
What is the SG-43?
A.
It's a Russian belt-fit machinegun, model
of 1943.

A.

Q.
What was your involvement in -A.
I reversed engineered the receiver for it
and did the drawings for the receiver.
Q.
So like you had mentioned earlier, you
basically took a destroyed receiver?
A.
Uh-huh.
Q.
Now, when you take a destroyed receiver,
you take measurements from it; is that correct?
A.
Yes; that's correct.
Q.
Then what do you do with those
measurements?
A.
Input it into a CAD program, Computer
Aided Design program.
Q.
When you go to a manufacturer such as
Mr. Savage or Historic Arms -A.
In this particular case, I did the
drawings, created the solid model, which is a
three-dimensional model. You can look at it on the
screen, rotate it, and look at it. It looks just
like the original piece would look. Then I created
what is known as an IGES file, which is a file that
can be imported into any number of programs to take
measurements off of a drawing. And then I produced,
also, a hard copy drawing.
Q.
When you submit that paperwork or that

0037
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design -- the blueprint, the schematic -- to the


manufacturer, the manufacturer then inputs that into
the CMC machine?
A.
Correct; or they can make it manual, but
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typically it's CMC.


Q.
And that's where I was going . This was
earlier, and I was a little confused . When you said
that they built this back, I wasn't sure if they were
actually rewelding -A.
No .
Q.
-- a destroyed receiver or if this is a
completely new receiver.
A.
Typically, they take a billet of steel and
start widdling away at it with a milling machine
until they get the final shape of the part that they
want to make.
Q.
Okay. Going back to your consultation
with Historic Arms, it was after the design phase
that you were consulted about this?
A.
I was asked to do the drawings of the
receiver, and Len had already designed the
semiautomatic portion of the receiver. So he told me
what modifications he wanted made to the original
receiver to make it semiautomatic, and I incorporated
those modifications in the drawing .

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You're referring to the SV-43?


A.
SG-43.
Q.
SG-43 . Not the defendant firearm?
A.
Correct.
Q.
Now, in relation to the defendant firearm,
your involvement was completely
post-production/post-design?
A.
Correct.
Q.
You didn't do any schematics for it?
A.
No.
Q.
You didn't review any schematics or
anything such as that?
A.
No .
Now, you said you examined the defendant
Q.
firearm?
A.
Yes.
Q.
And that was at?
A.
The range.
Q.
Do you remember what date that was?
A.
It was in June; June 10th, 2009.
Q.
Can you describe basically what you did in
your examination?
A.
I really looked at the -- there were other
people handling it. So it wasn't really necessary
for me to actually go over and pick it up and look at
Q.

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it, because I could stand and see everything I needed


to see. But I saw the defendant firearm, and I saw
Mr. Kingery do his demonstration.
Q.
So you did not take any measurements or
dimensions of the firearm?
A.
No.
Did you internally examine it?
Q.
A.
There again, there were other people
examining it at the same time. So I just looked over
their shoulder and saw the design feature of the gun.
Q.
So someone opened the top cover and you
were able to look inside the weapon?
A.
Yes. And the internal parts were removed,
so you could see the device in its entirety .
Q.
Can you tell me what basic parts compose
the defendant firearm?
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A.
There's a shell. There's a front
18
trunnion, a barrel, a top cover, a bolt carrier,
bolt, and recoil spring.
19
Q.
What did you mean by the term shell?
20
21
A.
It's the housing that holds all the parts
22
together.
MR . FOSTER: I'm going to just go ahead
23
24
and label this as Government's Exhi bit 3,
25
because I'm going to just use it to let you sort
0040

of point it out.
MR. MONROE: You're not going to make that
part of the record, though, right?
MR . FOSTER: No. We will maintain this.
But just for demonstration for him to point out,
is that acceptable?
MR. MONROE: Well, I mean, if you discuss
it in the deposition and label it but it's not
made part of the record, then labeling it will
become meaningless in the transcript . So I'm
not sure that's going to serve a purpose .
MR. FOSTER: Off the record, please.
(Off the record.)
MR . FOSTER: At this time, we will not be
entering this as Government's Exhibit 3, but
what I have sitting on the table is a PK-type
machinegun, Serial No. GT748.
Q.
(By Mr. Foster) Do you see this item,

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sir?
A.
Yes.
Q.
Could you point to what you're referring
to as the shell of the firearm here?
A.
It would be this sheet metal part right
here.
Would that sheet metal part also be called
Q.
the receiver?
A.
It ' s a part of the receiver .
Q.
What is the receiver then on a PK firearm?
A.
Well, it consists of many components. It
consists of that shell, the front trunnion, the back
trunnion, this lower guard.
Q.
So your testimony is that a receiver
without front trunnions, rear trunnions, guards would
not be a receiver?
MR. MONROE: Objection. That's a little
circular . You called it a receiver and then not
a receiver.
Q.
(By Mr. Foster) Let me rephrase that. So
what you're saying is a receiver has to have front
trunnions, rear trunnions, and guards in order to be
classified as a receiver?
A.
In my opinion, yes.
Q.
In your opinion, yes?
A.
Yes.
Q.
Do you know what the definition of a
firearm is under the Gun Control Act?
A.
I th i nk I can maybe paraphrase it.
Q.
Would you mind paraphrasing it?
A.
It would be a device designed to hold a
projectile, contain the explosion, and have the

0042
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mechanism to contain the explosion and expel a


projectile.
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Q.
Do you know if that definition also
includes frame or receiver or firearm?
A.
I know frame or receiver is described. I
don't know where in the regulation it is described.
But some of the features are, one that comes to mind,
is that it has to have a method of attaching a
barrel .
Q.
Would it surprise you to learn that frame
or receiver is in the definition under the Gun
Control Act for a firearm?
A.
No, it wouldn't surprise me .
Q.
Do you know what the definition of firearm
is under the National Firearms Act?
A.
A firearm that can fire fully automatic.
Q.
Is it just limited to that?
A.
No. It can be a short barrel receiver
a short-barrel rifle. I really don't know where
you're going.
Q.
I'm just trying t o determine your
definition of -- whether your definition of firearm
is what the law means. So I'm just asking you
what
A.
Oh, I see.

0043
Q.
If your definition is the same as what the
1
2
Gun Control Act or a National Firearms is .
Well, an NFA firearm would be any firearm
3
A.
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that's regulated by NFA such as machineguns,


short-barrel rifles, silencers. I'm trying to think
of what else. Those types of weapons -- a sawed off
shotgun. I'm sure there's s omething I've forgotten,
but I can't remember.
Q.
Do you agree with the GCA definition of
firearm? Do you think that's a correct definition?
MR . MONROE: Objection . I don't
understand what you're asking. Are you asking
if the statute is correct?
MR . FOSTER: To a certain extent, yes .
Does he be lieve the statute is correct .
THE WITNESS: Can I read the statute?
Q.
(By Mr. Foster) Sure. If you open your
book, you can turn to page five under 92l(a) (3).
MR. MONROE: Just to clarify the question,
you're asking if Section 92l(a) (3) is correct?
MR. FOSTER: If he agrees that that is the
definition of a firearm under the Gun Control
Act.
MR . MONROE: I'll object under the grounds
that it ca lls for a legal conclusion, but you
can answer it .
THE WITNESS: Do you want me to answer?
MR . MONROE : Well, if you can . If you
can't, you can't .
THE WITNESS: I don't feel comfortable
answering it because it says its design may be
readily converted. What is readily?
Q.
(By Mr. Foster) So, also, do you know
what the definition of a machinegun is?
A.
The general term is any weapon that fires
more than one projectile for one function of the
trigger.
Q.
Does the defendant firearm meet any of
these definitions?
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A.
I don't think so. Not as it was designed
in and of itself.
Q.
Well, can the defendant firearm expel a
projectile by function of explosions, which is what
the definition says?
A.
Not without the addition of parts .
Q.
Your report concludes that the defendant
firearm is a non-firearm; is that correct?
A.
Correct.
Q.
Do you know what a short-barrel rifle is?
A.
Yes.
Q.
Can you just generally describe that?
A.
Any rifle with a barrel less than 16
inches in length.
Q.
Is a short-barrel rifle a National
Firearms Act's firearm?
A.
Yes.
Q.
Do you know that Historic Arms filed an
ATF Form 2 registering the defendant firearm as a
short-barrel rifle?
A.
Yes.
Q.
Well, how can your report say that it's a
non-firearm when Historic Arms is admitting that it
is a firearm?
A.
My opinion is it's not a firearm.
Q.
So was Historic Arms wrong?
A.
I don't know.
Q.
So must a firearm discharge a projectile
to be a firearm?
A.
Yes.
Q.
But a frame or receiver by itself cannot
discharge a projectile?
A.
Correct.
Q.
But they are firearms by definition?
MR. MONROE: Objection. Is that a
question?

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0047

MR. FOSTER: Yes.


Q.
(By Mr . Foster) Is it not, a frame or
receiver, a firearm?
A.
By statute it is.
Q.
By statute it is. So the defendant
firearm, what you described as a shell, could that be
a receiver?
MR. MONROE: Objection. Counsel, I mean,
it might just be easier if you'll just call it
the defendant instead of the defendant firearm
since the status of firearm is at issue.
MR. FOSTER: If you want to call it, we
can call it the defendant. That's fine.
MR. MONROE: Okay.
Q.
(By Mr. Foster) Does the defendant have a
receiver?
A.
Can I talk to counsel for a few minutes?
MR. FOSTER: Joe?
MR. VISCOMI: No, I prefer you not -MR. FOSTER: Yes, if you can answer the
question, you can feel free.
THE WITNESS: Ask me the question again.
Q.
(By Mr. Foster) Does the defendant
firearm have a receiver?
A.
There are two kinds of definitions of a
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receiver. There's the definition of a Title I


firearm receiver and there's the definition of a
machinegun receiver. Which one are you asking me
about?
Q.
Well, let's do both of them. Does it have
a Title I firearm receiver?
A.
I would say, yes.
Q.
Then why does your report say it's a
non-firearm?
A.
Because in and of itself, it cannot expel
a projectile. You have to add parts to it to make it
expel a projectile.
Q.
But doesn't the definition of firearm
include a frame or receiver?
A.
But it also says that it must be able to
expel a projectile. And in that sense, it cannot be
a firearm. You know, it's got a shell that acts as a
receiver if it's complete, but it's not complete.
Q.
If you would, refer again to the
definition that you just looked at, which is
921 (a) (3).
A.
Right.
Q.
Would you read that definition to me.
A.
It says: The term firearm means, (A), any
weapon including a starter gun, which will or is

0048
1
designed to or may readily be converted to expel a
2
projectile by the action of an explosive; (8), the
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frame or receiver of any such weapon; (C), any


firearm muffler or firearm silencer; or, (D), any
destructive device. Such term does not include an
antique firearm.
Q.
So the definition of what you just read
has four different components, correct?
A.
Correct.
Q.
And if it meets any one of those
components, it's a firearm?
MR. MONROE: Objection. Calls for a legal
conclusion. Answer if you can.
Q.
(By Mr. Foster) To the best of your
knowledge, as long as the firearm meets any one of
those criteria, it's a firearm? It doesn't have to
meet all four?
MR. MONROE: Same objection.
THE WITNESS: As I read it, it must
contain all four components.
Q.
(By Mr. Foster) So a firearm would have
to have a firearm muffler in addition to a frame or
receiver in order to be a firearm?
MR. MONROE: Same objection.
THE WITNESS: Well, I guess if you look at

0049
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that narrow definition, then, yes, it has a


receiver .
Q.
(By Mr. Foster) So that means your
conclusion that it's a non-firearm is incorrect?
A.
In that narrow definition, yes.
Q.
Okay. Now, moving onto the National
Firearms Act, what is the definition of a receiver
under the National Firearms Act?
A.
Well, it would be a receiver of a
machinegun or any other device controlled by NFA.
Q.
And a rnachinegun, as defined by the
National Firearms Act, again, is a firearm which is
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-- and just to paraphrase. I'm not going to quote it


exactly -- is a firearm that expels more than one
shot for a single function of the trigger?
A.
Correct.
MR. MONROE: I'll object to the extent
that ' s not the wo rding of the Act .
MR. FOSTER: I can read the Act exactly if
you would like then.
Q.
(By Mr. Foster) So to go back, my
question was -A.
What page are you on?
Q.
I'm actually on page 77. The definitio n
of a machinegun under the National Firearms Act is
referred to: The term machinegun means any weapon
which shoots, is designed to shoot, or can be readily
restored to shoot ~utomatically more than one shot
without the manual reloading by a single function .o f
the trigger. The t e rm shall also include the frame
or receiver of any such weapon . Any part designed
and intended solely and exclusively or a combination
of parts designed and intended for use in converting
a weapon into a mac hine gun, and any combination o f
parts for which a machinegun can be assembled if such
parts are in the p ossession or under the control of
the person . That's the definition o f a machinegun,
correct?
A.
Uh-huh.
Q.
So why is the defendant fir e arm's Title I
receiver, what you define as a Title I receiver, why
is it not a machinegun receiver?
MR. MONROE: I'll object again t o
defendant fi rearm.
Q.
(By Mr . Foster) I apologize. Why is the
defendant's receiver not a machinegun receiver? Why
i s it only a Title I receiver?
MR. MONROE: Objection . It calls for a
legal conclusion. Answer if you can .
THE WITNESS: I don't think that I'm
qualified to answer that .
(By Mr . Foster) So
Q.
I mean, ask the question again.
A.
The defendant receiver, which you refer t o
Q.
as a Title I firearm receiver
A.
Right.
Q.
-- why is it not a machinegun receiver, as
well?
A.
That , I can't answer. I don't have an
a nswer for that .
Q.
So you do not know the difference between
a semiautomatic PK receiver and a full automatic PK
r eceiver?
A.
Yes . But the defendant is not a complete
r eceiver, it ' s only complete when you add to it.
It's incomplete as it sits.
Q.
I'm going t o introduce or put out a piece
of a firearm on t he table . I would like you to look
at this firearm a nd te ll me wha t this i s .
Well, it's t he receiver for a n M16 .
A.
Q.
Now, you jus t said it' s a receiver for an
M16?
A.
Correct.
Q.
So an M16, i s that a rnachinegun?
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A.

Yes.

Q.
How do you know that's a machinegun?
A.
Well, a couple of reasons . It's been
machined out in here to accept the fire control group
of a machinegun . It's marked semi-auto safe, and
it's also marked with the model number. But the
defining features is the rnachinegun back here, it's
separate parts .
Now, yousaid in order to be a receiver it
Q.
had to have parts to attach, I believe you said, a
front trunnion, a rear trunnion, and so forth.
Now, you called this a receiver and you
testified it's now a receiver, but it doesn't have
those parts, correct?
A.
That's because the Government determined
it was a receiver, not because it meets -- that does
not meet the definition of a receiver that we read
just a few minutes ago.
Q.
The M16 receiver that you have in front of
you, do you know approximately what year that was
originally designed?
A.
'58, '57/'58.
Q.
What year was the Gun Control Act enacted?
A.
Q.

'68.

So this firearm was created or designed


some ten years before the Government got into
regulating

A.

Classifying.
Q.
Classifying firearms?
A.
Correct.
Q.
So the Government didn't classify this as
a receiver, the manufacturer did, correct?
A.
That I don't know .
Q.
Okay. So going back to the receiver here,
you testified this is a machinegun?
A.
This?
Q.
Yes. The Hydra-Matic M16-Al receiver in
front of you is a machinegun?
A.
Yes.
Q.
As it sits, can it fire more than one shot
automatically?
A.
No.
Q.
But it's still a machinegun?
A.
Correct.
Q.
All right. So what you're saying is, even
if a receiver cannot expel projectiles, it is still a
machinegun if it is a machinegun receiver?
A.
If it has been classified as a machinegun
receiver.
Q.
The rnachinegun receiver in front of you,
does it have a mechanism to retain or contain a

0054
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6
7
8
9

10

recoil spring, a buffer, or anything such as that?


A.
It has an attachment point for it .
Q.
It has an attachment point, but it's not
presently on that item?
A.
Correct.
Q.
But even though those are not on there,
this is still a machinegun?
A.
Correct.
Q.
Now, based on your report, your report
basically said because there is no mechanism to
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contain the operating rod and the recoil spring and


the buffer on the defendant, it cannot be a
machinegun; is that correct?
A.
That's correct.
Q.
But you just testified in this case, this
is a device which doesn't have those same feature
presently on there?
A.
But you're talking about a device that was
previously classified. Isn't this case about the
classification of the defendant?
Q.
I'm going to the general knowledge of
receivers and how things are classified and what the
function of firearms is. So going to the defendant,
you did admit, though, it has a receiver? A Title I
receiver?

A.

Yes.
But you also said that you do not know the
differences between a Title I PK receiver and a Title
II PK receiver?
MR. MONROE: Objection.
THE WITNESS: No, I didn't say that. I do
know the difference between a Title I PKM
receiver and a Title II.
Q.
(By Mr. Foster) And what is the
difference?
A.
In the Title I, there is a blocking bar in
the bottom of it if it is used as a PKM. To build a
PKM, there's a blocking bar in there that prevents
the bolt carrier from going forward if it still has a
sear notch on it. Secondly, one of the rails is
increased in thickness so you cannot insert the bolt
carrier.
Q.
When you looked at the defendant firearm
at the range, did you see a blocking bar?
A.
No.
Q.
So the blocking bar had been removed from
the receiver?
A.
Yes.
Q.
Did you measure the rails?
A.
No; but I looked at the rails, and they're
Q.

obviously different in thickness. One of the other


gentlemen there did measure the rails.
Q.
But you don't have the information? The
measurements he made?
A.
I do at home. I don't have them with me.
Q.
Now, when you examined the bolt and bolt
carrier of the defendant firearm, you examined that,
correct?
A.
Yes.
Q.
Would you classify that bolt and bolt
carrier as a machinegun-type bolt.
A.
It either is a machinegun bolt or it is
not a machinegun bolt.
Q.
Well, is it a machinegun bolt?
A.
It's a modified machinegun bolt.
Q.
Does it contain design features of the
machinegun bolt?
A.
Yes.
Q.
How is it modified?
A.
Number one, the side rail was increased,
and width, so it would fit into the semiautomatic
receiver.
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Q.
Increasing the width of that side rail,
did that defeat the whole purpose of the increased
rail on the semi-auto PK receiver?
A.
It all owed the bolt to be insert ed into
the receiver .
Q.
So your testimony is that the defendant,
as you examined it, had the blocking bar removed and
it had a machinegun bolt that had been modified so
that it would insert and function into that receiver?
A.
Correct.
Q.
So at that point, is that receiver not a
rnachinegun receiver?
A.
No.
It's not?
Q.
A.
No. You have to add parts to it to make
it operate as a machinegun.
Q.
You have to add parts to the M16 receiver
to make it operate as a rnachinegun, correct?
A.
Right.
Q.
But i t's still a machinegun?
MR. MONROE : Is that a question?
(By Mr. Foster ) That was a question. But
Q.
this is still a machinegun, correct, the M16?
The M16.
A.
Q.
Going back to the defendant, in your
report you made the statement that the chain, the
tensioning bolt, and metal plate were an unregistered
conversion device? Is that the term?

25
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1
A.
Yes.
Q.
I don't want to misquote you.
Isn't it
2
true that no matter what you use t o contain the
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recoil spring operating rod of the defendant, it


would fire uncontro lled if arrununition was put in and
the bolt was retracted and released?
A.
Corr ect .
If you were to take a PK machinegun and
Q.
removed the rear trunnion and the butt stop right
here and take that same chain and attach it, it would
fire automatically, as well? The same way as the
defendant?
A.
If you r e mo ve the butt stock, the fire
control group, all that, I suspect it would.
Q.
So if that's the case, why is the PK still
classified as a machinegun if it's absent these
parts?
A.
Because that receiver has been classified
as a rnachinegun rece iver.
Q.
Who makes that classifi cation?

20
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A.
ATF.
Q.
Who made the classification of the
22
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defendant?
A.
ATF.
24
Q.
Do you know what ATF l oo ks at whe n they
25
0059
1
make a classification?
A.
No.
2
Q.
You don't?
3
4
A.
No. It's ne ver been publishe d .
Q.
It's never b een published?
5
6
A.
That I'm aware of.
7
Q.
Okay. Talking about PKs in general, do
8
you know how many diffe rent types o f PK machineguns
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have been produced?


A.

No.

Q.
It's more than one?
A.
More than one.
Q.
Do you know how many countries have
produced PK machineguns?
A.

No.

Q.
But it's -A.
It's a substantial number.
Q.
A substantial number. Do you know if in
these different -- based on the country of origin or
on the model, do you know if all PK parts
interchange?
A.
I suspect they do, but I'm not certain of
it.
Q.
Would you agree there's probably some
parts that wouldn't interchange?

A.
Would not interchange?
Q.
Would not interchange. For instance, a
tanker model gun versus an early PK or something like
that?
A.
You know, it's conjecture, but ...
Q.
Well, if it's conjecture, let's not go
there. Do you know what the term open bolt means?
A.
Yes.
Q.
Open-bolt firing?
A.
Yes.
Q.
Explain to us what that means.
A.
It means that the bolt is resting in its
open retracted position prior to firing.
Q.
Could you explain basically what the
firing sequence of an open-bolt firearm would be?
A.
When the trigger is pulled, the bolt would
be released . As the bolt continues forward, it would
strip the cartridge from the feed device, feed that
cartridge into the chamber. At the same time, the
extractor on the face of the bolt would grab the back
of the cartridge for subsequent extraction.
And then at that point, it depends whether
it's a fully automatic weapon or a semiautomatic
weapon depending on what happens next.
Q.
Well, if it's a fully automatic weapon,
what would happen next?
A.
Then some mechanism would dimple the
primer on the cartridge causing the gun t o expel the
cartridge.
Q.
Then what would happen?
A.
Then the mechanism would retract, either
by recoil or gas operation, it depends on the we apon,
extracting the spent cartridge and expelling it. If
the trigger was still pulled, it would repeat the
cycle . If the trigger had been released, then the
bolt would be captured in its rear-most position.
Q.
Okay. If we back up to the point in which
the extractor grips the cartridge, it's the point
where you said maybe it differed if it was a
semiautomatic firearm. If it was semiautomatic, what
would the firing sequence from that point be?
A.
Then as the bolt retracted and extrac ted
the spent cartridge, it would go back. During that
period of time -- the sear would have been tripped
and released to grab the bolt, and then the sear
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would grab the bolt and stop it from going forward


again.
Q.
Are there any open-bolt semi-automatic
firearms currently produced in the United States
today?
A.

Not currently produced.


Not currently produced. Does a PK
machine gun fire from an open bolt?
A.
Yes.
Q.
Does the defendant fire from an open b olt?
A.
Yes.
Q.
Can you tell me what a fixed firing pin
is?
A.
Just exactly that. It's fixed. It's
unmovable with relationship to the rest of the bolt.
Q.
Is that feature something that's common on
semiautomatic firearms?
A.
No.
Q.
What kind of firearm is it common on?
A.
Fully automatic firearms.
Q.
Fully automatic. To your knowledge, are
there any fixed firing pins semiautomatics produced
in the United States today?
A.
No.
Q.
The PK machinegun, does it fire with a
fixed firing pin?
A.
No.
Q.
What does it use?
A.
It uses a floating firing pin.
Q.
A floating firing pin? Explain the
Q.

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difference.
2
A.
A fixed firing pin, as I explained

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earlier, is fixed in relationship to the other parts


of the bolt. It does not move. A floating firing
pin moves in relationship to the other part of the
bolts.
Q.
Do you know what is meant by the term
striker fired?
A.
Yes.
Q.
Can you explain to us what that means?
A.
A striker is typically a linear striker.
In other words, it's maybe a rod. It can be many
different things. It moves in a linear fashion to
strike the firing pin as opposed to a hammer that
swings in an arc.
Q.
Is the PK what you would call a
striker-fired weapon?
A.
It's actually a linear hammer. The part
that hits the -- yeah, it would be striker fired.
Q.
Striker fired?
A.
Uh-huh.
Q.
Now, you said that the PK does not utilize
a fixed firing pin?
A.
Correct.
Q.
Does the defendant utilize a fixed firing

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0064
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pin?
2
A.
Now, that design feature, I don't know.
3
Q.
So you didn't investigate?
4
A.
No, I didn't.
5
Q.
Now, you did say, though, that the
6
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A.
Q.

Yes.
Those modifications, again, what were

those?
A.
The increase in the side wall, the slot.
And also, it does have a floating firing pin in it.
It is not a fixed firing pin.
Q.
So it 1 s the same as the PK then?
A.
Yes.
Q.
The firing pin is the same?
A.
Yes.
Q.
Okay. Would you say then that open-bolt
firing and the floating firing pins are typical
design characteristics of machineguns?
A.
Yes.
Q.
And I know earlier today you testified
that all of the guns that you have designed were
based on pre-existing models, correct?
A.
Yes, correct.
Q.
Do all machineguns that are made, do they

0065
have to fall under a pre-existing model or can a
1
2
designer create sort of a new firearm in itself?
A.
He can, but he's going to use design
3
4
components that have been used for years.
Q.
Okay. So for example, the M16 here, what
5
6
firearm was the M16, based off of?
7
A.
Loosely, on the Johnson.
Q.
Coming back, are you familiar with an
8
9
AR-10?
10
A.
Yes.
11
Q.
What is an AR-10?
A.
It's the predecessor to the M16. It was
12
designed by the same man, and it was in caliber 308.
13
14
Is the M16 basically a scaled down AR-10?
Q.
15
Correct.
A.
16
Q.
So the receiver is slightly smaller?
17
A.
Yes.
The caliber is smaller?
18
Q.
19
A.
Yes.
Q.
20
But it uses the same direct gas
impingement system to fire?
21
22
A.
Correct.
23
Q.
Do any parts between those two firearms
24
interchange?
A.
I don't believe so.
25
0066
l
Q.
But you would both classify them as an
2
AR-type receiver?
A.
Yes.
3
4
So the defendant is based off a PK-type
Q.
5
firearm, correct?
A.
Yes.
6
7
Q.
And like the AR-10, the AR-10 and the Ml6,
8
while one of the parts may not interchange exactly,
9
the method of fire, the method of construction, is
more or less the same. It's just a different scale,
10
11
so to speak?
12
A.
Between the AR-10, the AR-15 or M16, yes.
Q.
But with the PK, is it not, once again,
1.3
14
similar? I mean, there are some interchangeable
15
parts between the PK and the defendant, while other
parts won't interchange?
16
A.
Yes.
17
18
Q.
Is the defendant not just its own
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machinegun?
A.
No.
It's not a design of its own?
Q.
A.
No .
Q.
It's not a machinegun that's based off the
PK?
A.
It's not a machinegun .
Even though it has a receiv er, correct?
Q.
It has a receiver, once again?
A.
Yes.
And the blocking bars have been removed,
Q.
correct?
A.
Correct.
And also the side rails, the bolt has been
Q.
modified so it will go in despite the bigger side
rails, correct?
A.
Right.
Q.
But you still say that's not a machinegun?
A.
Correct.
Q.
Can you describe to me the method of fire
of a PK machinegun or the firing principals of how
one would fire?
A.
As I described earlier to you, the fire
method of an open bolt. You asked me about an
open-bolt rnachinegun, and that's exactly how that
fires .
The method of firing for the defendant
Q.
firearm, is it the same?
A.
The defendant firearm?
Q.
I'm sorry, the defendant -- pardon me,
John
is it not the same principles of operations
of the PK?
A.
missing,
complete
complete
complete

I think there's a point here we're


and that is is that we're talking about a
weapon. You have repeatedly referred to a
weapon sitting here. The defendant is not a
weapon.
If t he weapon was completed by the
addition of other parts then, yes, it will fire. But
the defendant in and of itself will not fire without
the addition of additional parts. So, I mean, we're
comparing apples and oranges.
Q.
So under that theory, if a manufacturer
were just to remove the trunnion and the stock, they
could sell this gun all day long because it can't
fire?
A.
No . Because the ATF said you can't,
because that receiver has been registered as a
machinegun receiver.
Q.
Why is the ATF wrong, then? Why are they
right about this receiver being a machinegun receiver
and they're wrong about the defendant's receiver
being a rnachinegun receiver?
A.
Because the defendant's machinegun
receiver was not designed to be a machinegun . It was
designed to use registered machinegun components to
complete it .
Q.

What kind of machinegun was it designed to

A.

The MAC.
Does a MAC machinegun have anything in

use?
Q.

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common with a PK machinegun?


A.
Yes.
Q.
What is that?
A.
The method of firing.
Q.
The method of firing. But do any of the
parts interchange?
A.
No.
Q.
Are the calibers remotely similar?
A.
No.
If you take two firearms that are Title I
Q.
firearms and combine them together, do you have one
firearm? Two firearms? Three firearms? What do you
have?
MR. MONROE: Objection. Calls for a legal
conclusion. Answer it, if you can .
THE WITNESS: I've got no idea how to
answer that question. You might have something
that would fire projectile. And then you're
going to have a bunch of parts over here, part
of which may or may not be the registered part
of that gun, which would be the receiver, so.
Q.
(By Mr. Foster) We talked a little bit
about the M16. Are you familiar with what's called
just an M203?
A.
What's the slang term for it?
Q.
40-millimeter grenade launcher.
A.
In passing.
Q.
You've seen them, but
A.
Yeah.
Q.
If you attach a 203, which is a firearm
itself, onto an M16 firearm, have you created a new
firearm? I mean, do we say that's, you know
A.
I would say that's two weapons.
Q.
That's two weapons.
MR . FOSTER: Do you mind if we take a
five-minute break?
MR. MONROE: No.
(Recess from 2:49 p.m. to 3:08 p.m . )
MR. FOSTER: I only have one last thing
just for record purposes. I've got a new copy
of the Federal Firearms Regulations Reference
Guide, which Mr. Harding earlier read
definitions from 18 USC 921 (a) (3), and also the
definition from which I read of the machinegun
under Title 26 USC Section 5845(b).
MR. MONROE: Are you going to make that
part of the record?
MR. FOSTER: Yes, I'm making this part of
the record .
(Government's Exhibit 3 was marked for
identification.)
MR. MONROE : I mean, I don't object if you
want, but I just want to point out that that's a
lot of pages to add for things that are citable
in the Code and the statute, anyway .
MR. FOSTER: At this time, we have no
further questions for you, Mr. Hardy.
MR. MONROE: I have a few questions.
DIRECT EXAMINATION
BY MR. MONROE:
Q.
Mr. Harding, when Mr. Foster was asking
you questions about the definition of a receiver, you
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25

identified some of the featur e s that a receiver has .


Do you remember them?
A.
Yes .
Q.
One of the features you said a receiver
has is a rear trunnion; is that correct?
A.
Yes.
Q.
Does the defendant have a rear trunnion?
A.

No.

Q.

So does the defendant fit the definition

0072
of a receiver?
1
2
A.
It fits the definition of an upper

3
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receiver similar to an Ml6 upper receiver .


Q.
Does it fit the definition of the receiver
that you were discussing with Mr. Foster where the
receiver has to have a rear trunnion?
A.
Q.

No.

So when you're talking about an upper


receiver, what does that mean?
In a firearm, s ome firearm designs, and
A.
let's use the Ml6, for example, you have the l owe r
receiver and then you have the upper receiver, which
contains the bolt and the barrel .
In the Ml6, the lower receiver is the
registered component and the upper receiver, whic h
contains the guide channel, and what have you, f or
the bolt . And also, the attachment point for the
barrel is a nonregistered component. It can be
bought and sold at will without registration.
Q.
Okay . About that M16 receiver that you
discussed earlier with Mr. Foster, you said it was a
machinegun; is that right?
A.
The lower receiver is a machinegun.
Q.
Right . Were you saying it's a machinegun
because it fits the definition of a rnachinegun or
because the ATF classifies it as a machinegun?
A.
Because the ATF classifies it as a
machinegun .
Q.
Do you believe it fits the definition of a
machinegun?
A.

No .

Q.

Why not?
Because it does not contain all of the
elements of a receiver. It has no provisions to
mount a barrel, for example.
Q.
So if you were to identify what part of a
complete Ml6 is the receiver, which part would you
identify or set of parts, if there's more than one?
A.
If I were classifying it?
Q.
Yes .
A.
I would classify the upper receiver as
being the receiver.
Q.
Okay. I think you testified, also, that
the defendant was designed to go on a MAC-type
machinegun; is that right?
A.
Yes; that's correct.
Q.
Does a MAC have an upper and a lower
receiver?
Yes , it does.
A.
So is the defendant designed to go on the
Q.

A.

upper or lower portion of the MAC?


A.
It is designed to have the lower portion
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of a MAC mounted to it.


Q.
And is the upper or the lower of the MAC a
machinegun?
A.
The lower .
Q.
So what is the upper part of the MAC?
A.
It is an uncontrolled collection of parts.
Q.
And if you were to attach the same chain,
turnbuckle, and aluminum plate that the plaintiff
attached to the defendant to an upper MAC, what
result would you get?
A.
If there was a cartridge in it , it would
fire the cartridge.
Q.
So it would behave essentially the same
way as the defendant?
A.
Yes.
Q.
You also talked about modifications to the
bolt of the defendant, do you recall that?
A.
Yes.
Q.
Were the modifications done to the bolt
itself or to the bolt carrier?
A.
Bolt carrier.
Q.
Does a PK-type machinegun have an upper
and a lower receiver?
No.
MR. MONROE: That's all I have.
MR. FOSTER: If you don't mind, just a few
quick follow ups on what you had there .
MR. MONROE: Okay.
RECROSS-EXAMINATION
BY MR. FOSTER:
Q.
Mr . Harding, you just said that the
modifications were not to the bolt. They were
actually to the bolt carrier; is that correct?
A.
Correct.
Q.
So the bolt itself is a machinegun bolt?
An unmodified machinegun bolt?
A.
Yes.
Q.
The bolt carrier, those modifications were
specifically -- what were those modifications, again,
on the bolt carrier?
A.
The guide rail on the left side was
increased in height so that it would fit the channe l
of the s emiautomatic receive r.
Q.
So it was modified so that a fully
automatic machinegun bolt could go into the receiver?
A.
It was a modified fully automatic bolt,
yes; bolt carrier.
Q.
Bolt carrier?
A.

0076
1
A.
Yes.
2
Q.
Okay. Just going back to the chain that
he mentioned, what mechanical function does the chain
3
4

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9

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tensioning bolt and plate, what function do they


have, mechanical function?
A.
They anchor or give resistance to the
recoil spring.
Q.
So -A.
Resistance to movement.
Q.
How do they convert the defendant?
A.
They capture the recoil spring and prevent
it from moving. They allow the recoil spring to
compress against the plate, which is held in place by
the chamber .
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Q.
And you said, by definition, that a
machinegun receiver must have a rear trunnion; is
that correct?
A.
I don't believe that's in the definition.
Q.
But you testified earlier that the
defendant's receiver was not a machinegun receiver
because it did not have a trunnion, a rear trunnion?
A.
Well, it does not have any way to contain
a recoil spring. Maybe that's a more accurate way of
saying it.
Q.
Do you think that Historic Arm's failure
to include a mechanism to contain the recoil spring
was to intentionally keep the firearm from firing
without the addition of it?
A.
Absolutely.
Q.
So the defendant firearm was designed
to
A.
It's not a firearm.
Q.
I'm sorry. The defendant was designed to
fire as a machinegun once something was attached to
the rear?
A.
It was designed to fire as a machinegun if
a MAC lower were attached.
Q.
But it functions like that if anything
else is attached to contain the bol t and recoil
spring?
A.
It will operate as what is called a
stutter or a -- it's an uncontrolled device if you
attach anything to simply hold the recoil spring.
Q.
But it's an uncontrolled device that fires
more than one shot without any other user input?
A.
Right. But the ATF has ruled that if you
add components to something that converts it into a
machinegun, then the parts that you add to it are
conversion devices; is that not correct?
And if that's correct, then adding the

24
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0078
plate and the tensioning bolt and chain in and of
1
2
themselves, those are conversion devices.
Q.
All I'm looking for is a yes or no. And
3
that is, the firearm as you described it as being a
4
sputter-type gun or stutter gun, sputter or stutter,
5
6
as you described it, it will fire automatically
7
without any other user input until the ammunition is
expended, correct?
8
9
A.
Yes.
10
MR. FOSTER: Okay. No further questions.
11
MR. MONROE: I don't have anything more.
(Deposition concluded at 3:20 p.m.)
12
13
(Pursuant to Rule 30(e) of the Federal
14
Rules of Civil Procedure and/or O.C . G.A .
9-11-30(e), signature of the witness has been
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reserved.)
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'
INDEX TO EXAMINATIONS

2
3

Examination

Page

5
6
7

Cross-Examination by Mr. Viscomi


Direct Examination by Mr. Monroe
Recross-Examination by Mr. Foster

B
9
10

3
71

75

INDEX TO EXHIBITS

11

12
13

Government's
Exhibit
1

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19

2
3

Description
Test and Exam of Historic Arms LLC
A7.62X54R Caliber Conversion System
Report
Curriculum Vitae
2005 Federal Firearms Regulations
Reference Guide

Page
30
33
71

{Original Exhibits l through 3 have been


20
attached to the original transcript.)
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0080
1
C E R T I F I C A T E
2
3
STATE OF GEORGIA:
4
COUNTY OF FULTON:
5
6
I hereby certify that the foregoing
7
transcript was taken down, as stated in the
8
caption, and the questions and answers thereto
9
were reduced to typewriting under my direction;
10
that the foregoing pages 1 through 78 represent
11
a true, complete, and correct transcript of the
12
evidence given upon said hearing, and I further
13
certify that I am not of kin or counsel to the
14
parties in the case; am not in the regular
15
employ of counsel for any of said parties; nor
16
am I in any way interested in the result of said
17
case.
This, the 15th day of September, 2009.
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21
YOLANDA R. NARCISSE, CCR-B-2445
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0081
1
COURT REPORTER DISCLOSURE
2
[ORIGINAL ON FILE)
3

4
5
6

Pursuant to Article B.B. of the Rules and Regulations


of the Board of Court Reporting of the Judicial
Council of Georgia which states: "Each court reporter
shall tender a disclosure form at the time of the
taking of the deposition stating the arrangements
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'

made for the reporting services of the certified


court reporter, by the certified court reporter, the
court reporter's employer, or the referral source for
the deposition, with any party to the litigation,
counsel to the parties or other entity . Such form
shall be attached to the deposition transcript," I
make the following disclosure:
I am a Georgia Certified Court Reporter. I am
here as a representative of Huseby, Inc . Huseby,
Inc. was contacted to provide court reporting
services for the deposition. Huseby, Inc. will not
be taking this deposition under any contract that is
prohibited by O.C.G.A. 15-14-37(a) and (b).
Huseby, Inc. has no contract/agreement to
provide reporting services with any party to the
case, any counsel in the case, or any reporter or
reporting agency from whom a referral might have been
made to cover this deposition. Huseby, Inc. will
charge its usual and customary rates to all parties
in the case, and a financial discount will not be
given to any party to this litigation .
YOLANDA R. NARCISSE, CCR-B-2445

DEPOSITION OF ORIN B. HARDING/JRN


I do hereby certify that I have read all
questions propounded to me and all answers given by
me on the 15th day of September, 2009, taken before
Yolanda R. Narcisse, and that:
1) There are no changes noted.
2) The following changes are noted:
Pursuant to Rule 30(e) of the Federal Rules of
Civil Procedure and/or the Official Code of Georgia
Annotated 9-11-30(e), both of which read in part:
Any changes in form or substance which you desire to
make shall be entered upon the deposition ... with a
statement of the reasons given ... for making them.
Accordingly, to assist you in effecting corrections,
please use the form below:

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should read:

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should read:

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should read:

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should read:

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should read:

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If supplemental or additional pages are necessary,


please furnish same in typewriting annexed to this
deposition.

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ORIN B . HARDING

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Sworn to and subscribed before me,


This the
day of
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I
Notary Public
My commission expires:

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0001
1
2

3
4

IN THE UNITED STATES DISTRICT COURT


FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
CIVIL ACTION

vs.
6
7

8
9

ONE HISTORIC ARMS MODEL


54RCCS A7 . 62X54R CALIBER
CONVERSION SYSTEM@
MACHINEGUN, SERIAL NO. Vl,
Defendant.

FILE NO .
1:09-CV-0192-GET

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11

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0002
1

DEPOSITION OF
JAMES A. MAYO, JR .
September 18, 2009
11:15 a.m.
2600 Century Parkway, NE
Suite 3 00
Atlanta, Ge orgia
Yolanda R. Narci sse, CCR-B-2445

APPEARANCES OF COUNSEL

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On behalf of the Plaintiff:


G. JEFFREY VISCOMI, Esq.
U. S . Department of Justic e
United States Attorney's Offi ce
75 Spring Street, SW
Suite 600
Atlanta, Georgia 30303
( 404) 581-6036
(404) 581-6181 (Facsimile )
jeffrey.viscomi@usdoj.go v
HARRY R. FOSTER, III, Esq.
U.S . Department of Justice
Bureau of Alcohol, Tobacco , Firearms &
Explosives
2600 Century Parkway, NE
Atlanta, Georgia 30345
(404) 417-2696
(404) 417-2691 (Facsimile )
harry . foster@atf.gov
On behalf of the Claimant:
JOHN R. MONROE, Esq.
Attorney at Law
9640 Coleman Road
Ros well, Georgia 30075
(678) 362-7650
(770) 552 - 9318 (Facsimile )
john.monroel@earthlink.net
Also Present:
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Page 2 of27
Mr. Len Savage, Claimant; President, Historic
Arms, LLC
Mr. Mason Kingery, Firearms Technology Branch,
Bureau of Alcohol, Tobacco, Firearms &
Explosives

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(Reporter disclosure made pursuant to


Article 8.B. of the Rules and Regulations of the
Board of Court Reporting of the Judicial Council
of Georgia . )
JAMES A. MAYO, JR.,
having been first duly sworn, was examined and
testified as follows:
CROSS-EXAMINATION
BY MR. VISCOMI:
Q.
Good morning, Mr. Mayo.
A.
Good morning.
Q.
My name is Jeffrey Viscomi . I'm an
ass i stant U. S . attorney along with Harry Foster .
We' r e the attorneys on this case for the Government.
Also , in this room is Max Kingery from the Fire
Technology Branch of ATF along with, of course, you
know Len Savage and John Monroe and the court
reporter .
The way this deposition will work is I'm
going to go through your CV and qualifications and
we're going to break for lunch at that p o int. And
when we come back, Mr. Foster will finish the
deposition. I would only ask that you keep your
voice up so that everyone in the room could hear yo u.
If you do n ot understand the question,
please let me know. I'm happy to repeat it, restate
it, rephrase it; whateve r your preference is . If you
do answer a question that I ask without stating you
don't understand it, the assumption on the record
will be that you understood the question.
The final thing I'll ask you is just wait
until I finish asking a question before you answer.
And likewise, I will do my very best to not interrupt
anything you're saying.
A.
Okay.
Q.
With that, I will ask you to please state
yo ur full name for the record.
A.
James Arthur Mayo, Jr.
Q.
People call you Chip?
A.
Yes, it's a -Q.
Nickname?
A.
Yes.
Q.
How old are you, Mr . Mayo?
A.
35.
Q.
Where do you currently live?
A.
2411 Rhyne Road, Dallas, North Carolina.
Q.
Where is that in Dallas, approximately?
A.
Northwest o f Charlotte, Gaston County.
Q.
I see from your CV, you're currently
employed by a company called CMP Armory; is that

0005
1
2

3
4

correct?

A.
Q.
A.

I'm the owner.


You are the owner?
Yes.

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Q.

A.

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owner?

A.

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A.

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Q.
A.

What does CMP stand for?


It's the initials of my family .
What would be your position there as the
I guess chief manufacturer, builder.
Do you have any other employees?
Just my wife.
What is her role?
She refinishes arms.
How long have you been the owner of CMP

Q.
Armory?
A.
Eight years.
Q.
What exactly does CMP Armory do?
A.
Restore machineguns, transferable
machineguns for repair; also, manufacture automatic
weapons for law enforcement sales as well as
semi-automatic versions f o r general public sales.
Q.
Can you tell us some of the firearms that
CMP has designed?
A.
Designed?
Q.
I'm sorry, you said manufactured, correct?

A.

I do manufacture existing designs.


So CMP does not d e sign its own firearms?
A.
No, not new.
Q.
So what firearms has CMP manufactured?
A.
Again, as my design or as -Q.
No, existing designs at CMP.
A.
I do work on PKM-type machineguns; all AK
variance, FNFAL varianc e, AR/M16 variance -- the
list, I can continue all afternoon -- M60s 249s,
240s, M250s, Browning-like machineguns, BARs, all H&K
variance, and I do some cannon wo rk for a Type 10
manufacturer.
Q.
You stated that CMP manufactures for law
enforcement sales. Do they also manufacture for
private sales?
Yes; semi-auto variance.
A.
Q.
How do you make private sales?
I either make private sales through an 01
A.
dealer in North Carolina.
So you have a dealer, basically a retail
Q.
shop that sells them for you?
A.
Yes.
Do you sell any of them on the Internet?
Q.
No.
A.
Q.
I don't know under the terms of any
Q.

contracts you have with law enforcement whether you


can tell me, but if you can, can you tell me some of
the law enforcement entities that have purchased -A.
Mainly the sheriff's department and the
upstate of South Carolina and North Carolina where
I'm at.
Q.
Are they purchasing their duty weapons
from you or are they like special for SWAT team
weapons?
A.
SWAT team.
I assume you founded CMP Armory?
Q.
A.
Yes.
Prior to founding CMP Armory, what did you
Q.
do?
A.
A machinist for Freightliner Corporation
as well as Daimler Trucks North America.
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A.

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Q.
A.
Q.
A.
Q.

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What kind of machining work di d you do?


Automotive parts.
Things related t o Fre ightliner trucks?
Yes.
And Daimler trucks?
Yes.
How long did you work there?
Ten years.
Prior to that?

A.
Prior to that, I worked for Pemberton Coat
& Chassis, which was a body shop, high-end cars;
primarily German.
Q.
What was the nature of your work there?
A.
Auto body painting.
Q.
Collision repair?
A.
Yes.
Q.
How long did you work there?
A.
Four years, roughly.
Q.
Prior to that, did you have another job?
A.
Automotive electronics.
Q.
Where?
A.
I'm trying t o think.
Q.
Take your time.
A.
I can't remember. Audio Excellence, East
Independence Boulevard.
Q.
What did you do there?
A.
Alarm installations.
Q.
Car alarms?
A.
Yeah.
Q.
I guess kind of start at zero, if you
want, what was the highest grade level that you
achieved?
A.
I graduated high school .
And Pemberton is the first job y ou had out
Q.
of there?
A.
Q.

A.

No.
Did you go to school after high school?
No .
What did you do inunediately after high

Q.
school?
A.
Inunediately after high schoo l, auto motive
electronics .
Q.
And then you went to Pemberton?
A.
Yes.
Q.
I'm sorry, Pemberton was no t the
automotive electronics?
A.
No.
Q.
Then you went to Pemberto n and then you
did the machining work?
A.
I went to Freightliner.
Q.
Freightliner. And then yo u started CMP?
A.
Yes.
Q.
Was there any overlap? We re yo u wo rking
for Freightliner still after you started CMP?
A.
Yes.
Q.
When did you start working full time for
CMP?
A.
Two times. When I be c ame licensed in
2001, I acquired a Federal firearms license in 200 1

0010
1
and started CMP Armory. In 200 4, I went back to work
at Freightliner until November of last year.
2

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November of 2008?
A.
Yes, but I continued to run CMP Armory
full time the entire time that I've been licensed t o
do so.
Q.
Was it j ust the situation where, f or
whatever reason -- I'm certainly not trying t o prio r
into your life -- you needed extra money o r work had
slowed down?
A.
No. At that time, Freightliner
Corporation provided very good benefits.
Q.
They made you an offer you couldn't
refuse?
A hundred percent co verage for your entire
A.
family, no money out of pocket; yeah .
Makes sense. Let's talk about, yo u
Q.
mentioned your federal firearms license . When did
you first receive the Federal firearms license?
November 2001.
A.
That was an FFL?
Q.
Yes, an 07.
A.
Type 07? What does that mean?
Q.
Manufacturer of firearms other than
A.
destruction devices.
Q.

Q.
Do you have any other Federal licenses?
A.
I have a Class 2, special occupational tax
stamp .
Q.
What does it mean to be Class 2?
A.
A Class 2 manufacturer manufactures NFA
items of up to 50 caliber.
Q.
So that means you can build machineguns?
A.
Yes; select fire suppress, short-barrel
rifles, short-barrel shotguns; just not destructive
devices .
Did you get the SOT at the same time y ou
Q.
had the FFL or was it -A.
Yes .
You maintain those licenses?
Q.
Yes, they are current .
A.
Have you ever served in the military?
Q.
A.
No .
Would you describe yourself as a gun
Q.
enthusiast?
A.
Yes.
Q.
When did you first become interested in
firearms?
My entire life, I guess.
A.
So since yo u were a child?
Q.
A.
Yes .
Q.
Were you involved on a personal or hobby
level with firearms while yo u were involved as a
machinist when working at Pemberton and Freightliner?
A.
Yes .
Q.
Do you currently own guns?
A.
Yes .
Q.
I don't need to know e xactly which ones,
but roughly how many?
A.
Personally or c ompany guns?
Q.
Let's start with personal.
A.
Personal guns, maybe 25 .
Q.
When you say company guns -A.
Company guns would be non-transferrable
post-86 dealer sample machineguns.

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A.
Q.

A.
Q.

20

A.

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Q.

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A.

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24

Q.

How many of those do you have?


Maybe another 25; 20, 25.
Those are all guns that CMP manufac tured?
Yes.
Are they a variety
Yes.
-- or are they mainly of one kind?
No. They're a variety.
Have you ever attended a 9unsmithing

school?

A.

Yes .

1
2

Q.

3
4
5
6

Q.

Which one?
I'm a certified Glock armo r e r.
Where did you attend that?
The class was set up in Mo unt Holly, Nort h

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A.
A.
Carolina.

How long was the class?


Eight hours.
Q.
One day?
Yes . It was a one-day eight-hour
A.
armorer's course .
Q.
What did you learn during that course?
A.
The history of the Glock firearm, complete
disassembly and maintenance and anything in between.
Q.
Have you attended any other gunsmithing or
armory schools?
A.
No.
Q.
Have you ever t oured a manufacturer?
A.
No .
Q.
I don't mean t o r e hash this, but you
stated CMP does not design guns, correct?
A.
No.
Q.
Have you ever personally designed guns?
A.
I do have some things, but they're still
drawings .
Q.
But beyond drawings, you've never designed
Q.

A.

0014
anything?
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0015

No.
Have you ever submitted items, e i t he r you
personally or on behalf of CMP to FTB?
A.
No .
Q.
Has anyone else ever submitted a ny i tems
on behalf of CMP to the FTB?
A.
No.
Q.
Have you had any personal dealings with
FTB? And I'm referring to the Firearms Technology
Branch just so the record is clear.
A.
No .
Q.
Have you ever received any legal training?
A.
No.
Q.
You haven't attended law school , co rrec t?
A.
No.
Q.
Have you ever taken a legal course or
seminar?
A.
No .
Q.
Have you ever classified a fir earm for the
government under the National Firearms Ac t ?
A.
No .
Q.
Have you ever classified a fir earm unde r
the Gun Control Act?
A.
No.
A.

Q.

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Q.
Have you ever classified a firearm f o r a ny
other regulatory body?
A.
No .
Q.
Have you ever collaborated with Mr . Savage
or Historic Arms before?
A.
Collaborated as in?
Q.
As in either design o r ma nufacture of a
firearm?
A.
No.
Q.
How do you know Mr. Savage?
A.
We shot together at Knob Creek and t hen
through a mutual friend.
Q.
How long have you known him?
A.
Maybe four years.
Q.
You can approximate. You said four years?
A.
Maybe four years.
Q.
Maybe four years. Have you ever had any
business dealings with him?
Such as?
A.
Q.
Well, I'll give you, I guess, an example,
but not in an exclusive list. Have you ever
purchased anything that Historic Arms has
manufactured or purchased a design that maybe History
Arms
A.
Yes . I've purchased a firearm from him.

Q.
A.
rifles .
Q.
A.

What did you purchase?


One of Historic Arms' Bren semi-automatic

When was this?


A year ago .
Q.
Is this a variant of a common design?
A.
Yes.
Q.
What was it?
A.
A Bren-like machinegun.
Q.
Have you had other business deals or
purchases from Len Savage?
A.
No.
Q.
Have you ever testified as an expert in a
trial before?
A.
No.
Q.
Have you ever testified as an expert in a
deposition before?
A.
No.
Q.
Have you ever been retained as a
consultant on a case?
A.
No.
Q.
Have you ever testified in court before?
A.
No .
Have you ever been deposed or been in a
Q.
deposition?
A.
No .
Q.
Who first contacted you about testifying
in this case?
A.
Len Savage.
Q.
When did he contact you?
A.
I do not remember the date.
Q.
Can you approximate? Give us an
approximate time.
A.
Eight months ago.
Q.
So that would mean roughly the beginning
of 2009?
A.
Yes.
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Q.
Prior to him contacting you about this
case
and I'm going to refer to something called
the defendant. And when I refer to that, that is the
device at issue here, the 54R Counter-Conversion
system that Historic Arms designed. I'll just use
defendant as a shorthand.
So prior to him contacting you, Mr. Savage
contacting you about this case, were you aware of the
defendant?
A.
Yes.
Q.
In what context did you become aware of
it?
A.
What do you ...

0018
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Q.
I'll rephrase it. When did you first
become aware of it?
MR. MONROE: By "it," you mean the
defendant?
Q.
(By Mr. Viscomi) The defendant.
A.
I saw the conversion device before it was
submitted.
Q.
Before Historic Arms submitted it to the
Firearms Technology Branch.
A.
(Witness nods head in the affirmative.)
Q.
Did you see it in person or in a
photograph? A video?
A.
In person. I happened to be at Historic
Arms.
Q.
You were down in Franklin, Georgia?
A.
Yes.
Q.
Do you recall when that was?
A.
No.
Q.
At the time you first saw the defendant,
was it demonstrated to you?
A.
Yes.
Q.
Did you have an opportunity to fire it?
A.
Yes.
Q.
When you had an opportunity to fire it,
was that firing videotaped?

A.
Not that I'm aware of.
Q.
After that visit to Historic Arms, did you
ever have any other encounters with the defendant?
A.
No.
Q.
Now, when Mr. Savage contacted you about
the potential involvement in this case, what were you
told about what your involvement would be?
A.
Just as an expert witness.
Q.
Did he tell you what issue you would
render an expert opinion on?
A.
To determine if the device was an upper or
a firearm.
Q.
Did anybody, including Mr. Savage, give
you any instruction on how you were to go about in
making that determination?
A.
No.
Q.
Were you provided, at any time, with any
d ocuments that were to assist you in making that
determination?
A.
No.
Q.
Were you given any other materials that
would help you in making that determination?
A.
No.
Q.
Were you given any sample firearms or
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anything like that?


A.

No .
Did Mr. Savage or anybody else give you
any instructions regarding how you were to make your
determination?
A.
No.
Q.
Now, you previously test i fied you saw the
defendant at some unknown time prio r to it being
submitted to the FTB, correct?
A.
Yes.
Q.
Did there come a time when you saw the
defendant again?
A.
At the testing in April -- was it April?
Q.
Perhaps June in Coweta County?
A.
June, I'm s o rry.
Q.
At the testing, there were -A.
Yes.
Q.
There were numerous people. I was there.
A.
Yes .
Q.
Mr. Foster was there .
A.
Yes .
Q.
Okay. Was that the first time you had
seen the defendant since you had seen it way back?
A.
Yes .
Q.
Did you have an oppo rtunity to examine the
defendant at that point?
Q.

25
0021
A.
Yes .
1
Q.
How did you examine it?
2
A.
Visually, as well as using a set o f
3
calipers to mark certain parts.
4
Q.
What were you looking for?
5
MR. MONROE: Let me just jump in again .
6
You're , again, free to split things up however
7
you want, but you might be getting a little bit
8
into the substance of his expertise as opposed
9
to his CV .
10
MR. VISCOMI: Sure . I understand . I'll
11
just ask him to answer that question, and I'm
12
going to move one so I don't stray too far.
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MR . MONROE: Okay.
(By Mr. Viscomi) I'm just asking you
generally, when you examined it, what were you
looking at?
A.
Just comparing the two or actually the
three ; the defendant, an original PK machinegun, and
a semi-auto receiver that was provided just for
differences between the three pieces.
Q.
You prepared a report in preparation for
this case, correct?
A.
Yes.
MR. VISCOMI : I'm going to ask the court
Q.

0022
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reporter to mark Exhibit 1 . It's a two-page


document .
(Plaintiff's Exhibit 1 was marked for
identification.)
Q.
(By Mr. Viscomi) You've been handed
what's been marked Plaintiff's Exhibit 1. Do you
recognize that?
A.
Yes .
Q.
What do you recognize it to be?
A.
The report that I sent Mr. Monroe .
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That's the report you prepared with


the defendant?
Yes.
Did you prepare that report?
My wife prepared it for me. She just
I don't type.
You provided the substance?
Q.
Yes.
A.
Q.
And she typed it?
A.
Yes.
Did anybody assist you with its
Q.
preparation?
Q.

respect to
A.
Q.
A.
typed it.

A.

No.

Q.
A.

Besides your wife's typing?


Right.

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Q.
Did you receive any instructions as to
what the report was to contain?
A.
Yes.
Q.
What sort of instructions did you receive?
A.
Just not really instruction, but examples
of the way to lay it out; not what to say or what to
add.
Q.
Those examples were reports about the
defendant?
A.

No.

They were reports about other devices?


A.
They were generic as in just basic format.
Q.
Understood. When you finished that report
with the help of your wife, did you discuss the
finished report with anybody?
Q.

A.

No.

Q.
What did you do with the finished report?
A.
It was e-mailed to John Monroe, Monroe
Whitesides, and everyone involved.
Q.
Did you receive any feedback on the report
once you sent it to those people?
A.
Other than it was direct and short, that's
about all.
Q.
Were you asked to make any edits based on
that feedback that it was direct and short?
A.

No.

Q.
So the draft that I have shown you that's
in evidence as Plaintiff's Exhibit 1, is that the
same draft that you -- excuse me, the same version of
the report that you sent to Mr. Monroe, Monroe
Whitesides, and others involved in the case?
A.
To the best of my memory, yes, without
looking on my computer. Word for word, I couldn't
tell you that 100 percent.
Q.
The substance is the same, correct?
A.
Yes, it appears to be.
Q.
Are you receiving compensation for your
participation in this case?
A.
I will be billing Historic Arms at the
conclusion.
Q.
How much do you anticipate billing them?
A.
I don't know at this point.
Q.
Do you have a rate?
A.
Based off of the production that we do,
around $750 a day.
Q.
Do you know how many days you've worked so
far on this case?
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A.

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Q.

Maybe four at the moment including today.


Whom do you expect to receive payment

from?

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Historic Arms and Len Savage .


Are you also receiving compensation for
your expenses related to traveling and so forth f or
this?
A.
No .
Q.
That's on your own dime?
A.
Yes .
Q.
Do you have any interest in the po tential
retail sale or other sale of the defendant? Do you
have any stake in it?
A.
No.
MR. MONROE: You mean financia l interest?
Q.
(By Mr. Viscomi) Yes, financial interest .
A.
No.
Q.
Not economic interest .
A.
No .
Q.
So regardless of its classific ati on, you
don't expect to receive any money?
A.
No .
Q.
Or any other compensation?
A.
No, not on -- you are saying on the sale
of
Q.
Of the defendant.
A.
No.
Q.
Or copies of the defendant?
A.
Q.

A.
Q.

o f yours?
A.
Q.

level?
A.
Q.

A.
Every day?

No, I do not.
Do you consider Len Savage t o be a friend
Yes.
Do you have contact with him on a personal
Yes.
How often?
What are you asking?

Like a phone cal l ?

Q.
Yes. Talking o n the pho ne. Sending
e-mails . That kind of thing.
A.
Other than to do with this, maybe once a
month or less. I normally see him twice a year in
Kentucky.
Q.
At the Knob Creek shoot?
A.
Yes.
Q.
How many times have you been to the
Historic Arms shop in Franklin?
A.
Four. I think I've been to his shop f o ur
times .
Q.
Would you say those visits were personal
or d i d you have some business to attend to?
A.
The last two visits were to do with this .
Once at the testing and then this week, as well.
Q.

You said you were als o there s ome other

A.

Yes . Prior to that, that was personal.


That was personal?
Yes.
The other two were f or
Having to do with -The case?

time?

Q.

5
6
7
8

A.
Q.

A.
Q.

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A.
Yes.
Q.
Then there was another visit before, as
well, prior to the first time you saw the defendant?
A.
Yes.
Q.
You said four?
A.
Yes.
Q.
That was just a personal visit, as well?
A.
Yes.
MR. VISCOMI: I have no further questions
of the witness. I think at this point we can go
to lunch and reconvene at around 1:00 and finish
the deposition.
MR. MONROE: Okay.
(Lunch recess from 11:41 a.m. to 1:15
P .m.)

CROSS-EXAMINATION

24
25

BY MR. FOSTER:

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Q.
(By Mr. Foster) All right. We are back.
My name is Harry Foster. As Jeff told you earlier,
I'm the attorney with ATF. I'm also special
assisting the United States Attorney on this case.
We're going to talk here a little bit about the
defendant and its characteristics and some about y our
report.
I want to remind you, you're still under
oath from earlier. Basica l ly, when we left off, J e ff
had just finished your qualifications. So now I'm
just going to -- it isn't really going back, but I
just want to clarify s ome things.
The first time you learned about the
defendant -- and when I say the defendant, I'm
referring to the Historic Arms 54RCCS caliber
conversion device; is that right?
MR. SAVAGE: Close enough.
(By Mr. Foster) Close enough. When was
Q.
the first time you learned about that, approximately?
A.
I do not remember the date.
Q.
Do you remember an appro ximate month?
I believe October.
A.
Q.
October. Would that be '07? ' 0 8? '09?
Well, obviously not '09.
A.
I believe October of '08.
So that would be last October?
A.
Yes.
how did
Q.
What was the nature of learning
you learn about it?
A.
The shoot that we were supposed to go to
in Kentucky was canceled due to flooding, and it was
just a group of people that got together at Historic
Arms instead. Everybody already had travel plans
made and just went and hung out at his place.
Q.
So when Knob Creek became a river, you
went to Franklin, Georgia?
A.
Yes.
Q.
And you think it was Octob e r o f '08? So
last October?
A.
Yes.
Q.
Now when you got there, h ow was it
presented to you?
A.
Wait a minute.
I'm sorry. When you arrived at
Q.
Mr. Savage's facility -Q.

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I believe the date is wrong. I dont


A.
remember if it was April or October that it was
flooded . I didn't go this past April .
Okay .
Q.
I don't remember . It was a Knob Creek
A.
weekend .
It was a Knob Creek weekend in which it
Q.
was flooded?
A.
Yes . The second weekend in April o r the
second weekend in October, but I do no t remember.
Q.
Exactly when?
A.
Which event.
Q.
So you're planning to go there . You end
up going to Franklin, Georgia instead with a bunch of
folks. How did Mr. Savage present the defendant to
you?
A.
It was shown to several manufacturers that
were present that he had just completed this
conversion and asked opinions and was shipping it out
the following week, to the best of my knowledge.
Q.
So t h is was a sort of show-and-tell, hey,
look at this or maybe even to get possible sales in
the future?
A.
I think more just, hey, l ook at this; not
really trying to sell it to anybody. Just, you know,
it's here. What do you think of it.
Q.
Have you ever heard of any MAC-based
belt-fed uppers before prior to seeing this
defendant?
A.
One based on an RPD. I r emember fr om

0031
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2
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4
5

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13

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several years ago someone said they were going to


come out with it, and I never saw any end product,
but it was just an advertisement that I saw for one .
Q.
So it was something in a magazine or on
the Internet or something to that effect?
A.
Yes.
Q.
So when you observed the defendant at
Mr . Savage's shop, whenever that was, did you have an
opportunity to examine it? Did you open it up and
play with it or did you just sort of l ook at it and
pick it up and test fire it?
A.
To the best of my knowledge, it was apart
when I arrived there, and we put it t o gether and shot
it.
Q.
And by put it together, what do you mean?
A.
The upper had the bolt and everything
already in it. We just added a lower that Historic
Arms had available and test fired it.
Q.
So by putting it together, you mean
just
A.
Adding a lower.
Q.
-- attach a MAC-10 lower to the bottom of

18
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it?
24
25
0032
1

2
3
4

5
6

A.
Q.

Yes.
Load it with ammunition?

A.
Yes.
Q.
And let i t go?
A.
Yes.
So you didn't consult with Mr . Savage or
Q.
Historic Arms in the design of this?
A.
No.
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Q.
Have you ever consulted in the design of
any other firearms with him, with Mr. Savage or
Historic Arms?
A.
No.
Q.
Now, after test firing the firearm that
day, did you have any other opportunity to see the
defendant?
Not until the test firing of this year.
A.
That test firing was the Coweta Country
Q.
Range day?
A.
Yes.
Can you tell me what you did at that test
Q.
firing? I'm assuming you examined the defendant?
MR. MONROE: Which firearm are you
referring to?
Q.
(By Mr. Foster) The most recent one with
ATF and Mr. Savage's other experts.
A.
Comparison between the Historic Arms upper
and a semi-auto PKM receiver and a full-auto PKM
receiver.
Q.
What exactly did you do to make those
comparisons?
A.
I did a visual inspection as well as
measuring certain parts of all three items and
comparing the three.
Q.
What measurements specifically did you
take?
A.
Well, specifically, the left rail of the
semi-auto receiver compared to the upper Historic
Arms compared to a full-auto PKM receiver.
Q.
Why did you measure the left rail?
A.
Because with a semi-auto rail you c an't
install fully automatic parts without having modified
them.
Q.
Do you know the dimensions of the left
rai l on a semi-automatic PK?
A.
No, not offhand. I do not have those.
Q.
But you have them somewhere, I'm assuming?
A.
Bill Messenger was the one taking notes
that day . The only notes I have are his notes.
Q.
So you didn't take your own notes?
A.
No, I did not.
Q.
So I'm assuming you didn't take notes on
the measurements of any of those rails yourself? You
were relying on someone else?
A.
No. I took the measurements and he -Q.
He transcribed what you said?
A.
Right.
Q.
But you don't recall what any o f those
me asurement s were at this point?
A.
No .
Is there a reason why you didn't put any
Q.
o f that in your report?
A.
Why did I not put measurement or the
Q.
The measurements, yes, sir.
A.
No, there's no reason why.
Q.
Don't you think it would have been more
helpful to say that this rail was X dimension while
this rail was Y dimension?
A.
Possibly.
Q.
After you took the measurements, what did
you do next in examining the defendant?
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A.
We disassembled the upper from Historic
Arms as well as the full-auto PKM from ATF and tried
to swap certain parts.
Q.
What parts compose the defendant? What
parts make up the defendant? You could describe to
me what you saw in front of you.
MR. MONROE: Counsel, are you asking him
to tell you what parts comprise the defendant or
are you asking him to recall what he knows about
it?
MR. FOSTER: What he knows about it.
Q.
(By Mr. Foster) What did you see?
A.
It's basically a PKM-style front end that
houses a MAC-style carrier system.
Q.
What d o you mean by front end?
A.
Top cover feed tray, front trunnion
barrel.
Q.
Anything else?
A.
No . At that point, other than the
charging handle.
Q.
Was the charging handle attached to
anything?
A.
The charging handle is in a slot on the
side of the receiver.
Q.
So it had a receiver?
A.
No. In a PKM, it's in a receiver by
definition of ATF only. But in the defendant's case,
it is no t a receiver, in my opinion. That was just a
misstatement of my own.
Okay. So are you familiar with the
Q.
definition of firearm under the Gun Control Act?
A.
A firearm is a weapon that discharges a

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projectile from means of an explosive.


Q.
Does that definition also include, the GCA
definition, also include the frame or receiver?
A.
It does because the frame or receiver is
classified as a firearm.
Q.
So if there's a frame or receiver, i t
would be a firearm?
A.
It would be, yes.
Q.
Are you familiar with the definition of
firearms under the National Firearms Act?
A.
A firearm? Not right off.
Q.
Not right off?
A.
Other than what I've already stated .
Do you know what the basic categories of
Q.
fire arms are under the National Firearms Act? Sort
o f what the different types are that people generally
have?
A.
Suc h as automatics? Semi-automatics?
Q.
I was thinking sort of like a short-barrel
rifle, a short - barrel shotgun, any other weapon .
Destructive device, suppressor, muffler,
A.
machinegun, any other weapon.
Q.
Those different things are firearms under
the National Firearms Act, correct?
A.
Yes.

Q.
Does the defendant meet either of these
definitions? Either the GCA definition or any of the
National Firearms Act definitions?
A.
In my opinion?
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Q.
Yes.
A.
No.
Q.
Is it also your opinion that anyone who
has more than a basic knowledge of firearms would
know that the defendant is not a firearm?
A.
Yes, that is my opinion.
Q.
Are you aware that Historic Arms filed an
ATF Form 2 registering the defendant as a
short-barrel rifle?
A.
Yes.
Q.
You are?
A.
(Witness nods head in the affirmative.)
Q.
So did Mr. Savage make an incorrect
statement when he submitted that Form 2?
MR. MONROE: Objection. He hasn't
testified that he's seen the Form 2 or that he
knows such statements were made.
Q.
(By Mr. Foster) I'll rephrase it. Since
your expert testimony and your report concludes that
the defendant is not a firearm, but since you're
aware of the fact that Mr. Savage filed an ATF Form 2

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saying that the defendant is a firearm, do you think


he made an incorrect statement in submitting that
form?
MR. MONROE: Same objection. He hasn't
testified that he knows of any statements; only
that it was registered.
Q.
(By Mr. Foster) You can go ahead and
answer the question. The objection has been noted.
A.
I don't necessarily disagree in the way he
filed a Form 2. It was his opinion. I don't believe
his filing of the Form 2 was stating that it was a
firearm in the sense that you're talking about. He
was narrowing the market, in my opinion .
Q.
So do you think he was correct that it is
a short-barreled rifle?
A.
No . In my opinion, no.
Q.
He's incorrect?
A.
In my opinion, yes.
Q.
What is the purpose of an ATF Fo rm 2?
A.
A Form 2 is a notice of manufacture.
Q.
Who submits that?
A.
An 07 manufacturer with a Class 2 tax
stamp.
And the purpose of that is t o do what?
Q.
Is to register the firearm that has been
A.

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manufactured .
Q.
So your expert opinion and your report are
a direct contradiction of what the manufacturer said
this firearm is, correct?
A.
Yes.
Q.
Do you think that Historic Arms was
incorrect in their classification?
MR. MONROE: Objection. Asked and
answered.
Q.
(By Mr. Foster) As a manufacturer of
firearms, are there specific markings you're supposed
t o put on a firearm when you manufacture it.
A.
The name of the company, the model, the
serial number, and the state in which the
manufacturer has manufactured the firearm.
Q.
Where must the manufacturer place that
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informati on?
A.
Visible on the receiver .
Q.
Now, is that different for a Gun Control
Act firearm versus a National Firearms Act firearm?
A.
No.
Q.
So that information must be on the
receiver?
A.
Or body of the suppressor.
Okay. In the case of the defendant, did
Q.

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Historic Arms place any marks on the firearm?
1
A.
I do not remember.
2
You do not recall?
3
Q.
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A.

No .
I'm going to pass you what we'll just call
for today Object 1. Do you know what that is?
A.
Yes.
What is that?
Q.
This is an Ml6Al Hydra-Matic machinegun
A.
receiver.
Q.
How do you know it's a machinegun?
A.
By the machinegun inside of the trigger
body as well as the third pin hole for your automatic
disconnecter .
Q.
Is that a machinegun as you hold it in
your hands?
A.
Yes; by ATF standards. By the letter of
the law; yes.
Q.
And isn't the law that defines
Yes .
A.
Q.
the definition of what is a machinegun
or not?
Absolutely.
A.
Q.
Now
A.
But i t does not retain a bolt. It's not
Q.

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threaded.
Q.
Fair enough. The Object 1 in front of
2
you, as it sits right now, can it expel a proj ectile
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by means of explosive?
A.
No.
Q.
But it's still a machinegun?
A.
Absolutely.
Q.
Why is that?
A.
Because ATF has classified it as such.
Q.
Okay. The item that has been labele d
Ob j e ct 1, does it have any mechanism to retain the
reco il spring or buffer?
A.
Yes.
Q.
It does? What is that?
A.
Well, in the threads.
Q.
The threads?
A.
Yeah.
Q.
The threads themselves will retain it ?
A.
It will retain the buffer tube .
The buffer tube. So the buffer tube
Q.
actual l y re tains the recoil spring and the buffer?
A.
Yes.
Q.
Okay. Now, based on your report, you said
that the defendant is a non-firearm and that the
mechanism that retained the recoil spring, the

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operating rod, and the buffer in the defendant we re
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actually the machinegun, were a machinegun conversio n
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part, correct?
A.
Can you repeat that?
Q.
Yes. Based on your report, you said that
the defendant is actually nothing -A.
Right.
Q.
-- but the chain, the tensioning bolt, and
the metal plate that were attached to the rear,
they're actually a conversion device?
A.
Yes.
Q.
Because they retain the recoil spring, the
operating rod, and the buffer?
A.
Yes.
Q.
If that's the case, then based on your
same expert opinion, wouldn't the buffer tube be a
conversion device for that receiver, as well?
MR. MONROE: Could you clarify what
receiver you're speaking of?
Q.
(By Mr. Foster) Object 1, based on your
testimony that the pieces that retain the operating
rod, the recoil spring, and the buffer in the
defendant, similarly the buffer tube and the butt
stock for Object 1 would have t o be a conversion
device, as well?

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A.
It depends on what type of upper you're
putting on this receiver.
Q.
How is that?
A.
Olympic Arms uses a piston-driven and has
since the '60s. If you use a Government issue
.22-caliber retainer insert, the screen is inside the
upper and you can take the buffer off.
Q.
But based on your testimony about the
device used to capture the recoil spring, based on
that testimony, wouldn't you have to call the buffer
and the butt stock on this firearm a conversion
device?
A.
On this firearm, no.
Q.
No?
(Witness shakes head in the negative.)
A.
Q.
Let's go back to the defendant and your
examination of it. When you conducted the
examination of the defendant you said you took some
measurements and you measured the left hand rail,
correct?
A.
Yes.
Q.
What else did you see when you opened up
the defendant and looked inside?
A.
Such as?
Q.
What did you see? What was inside when

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you opened the top cover and looked into the


defendant, what did you see?
A.
You have an insert that's been installed
to use a MAC lower. Part of the original semi-auto
receiver had been cut away to allow the MAC upper to
be welded in.
Q.
What part of that original semi-automatic
receiver was that?
A.
It was the lower section that had been
removed.
Q.
Now, you said earlier or in your
qualifications you testified that you are very
familiar with PK machineguns; is that correct?
A.
Yes.
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Q.
Are you familiar with the differences
between semi-automatic PK receivers and
fully-automatic PK receivers?
MR . MONROE: I'm going to object . We're
getting back into th CV again.
MR. FOSTER: No. This is directly
regarding to the difference between a semi and a
full. This has everything to do with the
question here.
MR. MONROE: I'm going to instruct the
witness not to answer because it's covered in
the CV, in the part of the deposition concerning
the CV.
Q.
(By Mr. Foster) I'm going to put in front
of you Object 2. Do you know what Object 2 is?
A.
It's a semi-automatic PKM receiver.
Q.
How do you know that?
A.
I read the stamp on the side. It's made
by Vltor.
Q.
Vltor doesn't make fully-automatic
receivers?
A.
I'm sure they do.
Q.
I don't see anywhere on this -- can you
read what it says on the side?
A.
It says Vltor Weapon Systems, and it does
not say semi-automatic.
Q.
So you are incorrect then that you read on
the side it was semi-automatic?
A.
Okay. Yes.
Q.
Okay. So is that a semi-automatic or
fully-automatic receiver?
A.
It's a semi-automatic receiver.
Q.
How do you know that?
A.
Because I can see that the left rail is
enlarged .
Q.
Do you know what other features

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0047

A.
There is a bar that has been installed in
the lower portion of the receiver.
Q.
What's the purpose of that bar?
A.
Honestly, I don't know because there's two
different designs. The early one and then the later
one, which you have here. There's an engagement
point for a full-auto bolt carrier.
Q.
Is the purpose -- I'm sorry.
A.
To block a full-auto bolt carrier.
Q.
It's to block a full-auto bolt carrier.
When you examined the defendant firearm, did you see
a blocking bar?
A.
No.
Q.
Why not?
A.
Because the MAC upper has been installed
in its place .
So Historic Arms had removed the blocking
Q.
bar?
A.
The whole lower part of the receiver
itself.
Q.
But it included the blocking bar?
A.
It did include the blocking bar.
Q.
Now, you stated a moment ago that the
earlier ones were different. How were they
different?
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A.

They have a channel machinegun to the left


I'm sorry, right side.
Q.
What's the purpose of that channel?
A.
Again, I do not know. It must not be any
purpose because they don't do it now.
Q.
Now, you testified earlier that the left
side rail on the defendant has been -- it's an
increased size?
A.
Yes.
Q.
Increased width than the standard PK
machinegun. What is the purpose of that?
A.
To keep people from installing a full-auto
bolt carrier.
Q.
Now, when you examined the defendant, did
it have a bolt carrier?
A.
Yes.
Q.
Well, tell me about the bolt carrier. Was
it a semi-automatic bolt carrier?
A.
The bolt carrier, as a PKM, had been
neutered completely. It was not a full-auto PKM bolt
carrier anymore.
Q.
How is that?
A.
Because the entire engagement point at the
bottom had been removed, rewelded, and a new
MAC-style engagement point had been put in its place.
side

0048
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Q.
The bolt carrier, though, was it designed
2
to allow automatic fire?
A.
The bolt carrier itself?
3
4
Q.
Correct.
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A.
It's just an engagement point. Yes, I
assume so.
Q.
And my next question was: Did you
actually see the defendant fire automatically?
A.
Yes; on a machinegun lower.
Q.
Did it not fire automatically with a
chain, a plate and a -A.
With a conversion device on it, it did.
Q.
Did you take apart the bolt? Did you take
the bolt out of the bolt carrier?
A.
No, I did not.
Q.
Do you know if that was a semi-automatic
bolt or a fully-automatic bolt?
A.
I assume it was a fully-automatic bolt.
Q.
Do you believe that Historic Arms
intentionally opened the groove on the left side of
its bolt to allow its installation into a
semi-automatic receiver?
A.
No.
Q.
Then what was the purpose of widening the
channel?

25
0049
A.
I don't know.
1
2
Q.
You don't know. Now, you said that it
fired automatically because it had converted the
3
chain, the bolt, and a plate or a conversion device?
4
5
A.
Uh-huh.
Q.
And is the conversion device to turn a
6
7
semi-automatic PK into a full-automatic PK?
A.
Any MAC style upper.
8
9

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Q.
So what you're saying then is that the
chain, the bolt, and the plate would not convert a
semi-automatic PK into a machinegun?
A.
No; because you don't need to put it on a
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PKM machinegun.
Q.
I said a semi-automatic PK.
A.
You don't need to put it on a
semi-automatic PKM rifle.
Q.
But it would not turn a semi-automatic PK
into a machinegun?
A.
Correct.
Q.
Do you know about approximately how many
variations of the PK machinegun have been produced?
A.
How many variations?
Q.
Yes.
A.
Current?
Q.
Yes.
Still in use?
Ever.
A.
Still in use, two.
Q.
Still in use, two. But in the history of
the PK firearm.
A.
Well, the PK family of weapons starts in
1943. You have all kinds of experimental models.
There's less than 50 produced. I don't know.
Q.
But they're all machineguns?
A.
Yes.
Q.
Do their parts interchange?
A.
Not all of them, no.
Q.
So the fact that the parts don't
interchange doesn't mean that a subsequent model is
not still a PK-type design machinegun?
A.
No.
Q.
Can you explain the firing sequence of a
PK machinegun?
A.
Can you elaborate on that?
Q.
Sure. You take a PK machinegun and a belt
of ammunition, explain to me what happens. How you
put the ammunition in and what happens once you pull
the trigger mechanically.
A.
You have a fork on the top of the bolt
carrier that removes the round of about -- in a
A.

Q.

full-auto gun, it holds to the rear until the trigger


is pulled. When the engagement point breaks on the
bottom of the bolt carrier, it puts the round into
the barrel. The bolt carrier goes forward, puts the
round in the barrel, and the bolt closes and locks in
the battery and it fires.
As it fires, the fork is grabbing another
round out of the belt. And off of gas through the
gas cylinder, it continues to run as long as the
trigger is pulled.
Q.
Can you tell me what the firing sequence
is on the defendant?
A.
The firing sequence is the same.
Q.
So it operates identically to a PK
machinegun?
A.
When installed on a MAC lower, yes.
Q.
Does the defendant fire from an open bolt?
A.
Yes.
Q.
What is meant by open bolt as the common
term in the industry?
A.
The bolt is retained at the rear until the
trigger is pulled and an engagement point is broken,
and then a round is loaded into a chamber. There is
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bolt.
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Q.
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Q.
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0053

Is the PK fired from an open bolt?


Yes.
Are there any open-bolt semi-automatic
firearms currently in production in the United
States?
Not currently in production, no.
A.
Q.
Does the defendant utilize a fixed firing
pin?
A.
Yes.
Q.
It is a fixed firing pin?
A.
(Witness nods head in the affirmative.)
Q.
Does a PK have a fixed firing pin?
A.
Yes; same firing pin.
Q.
Are there any fixed firing pins
semi-automatic firearms in production in the United
States?
Today?
A.
Q.
Currently, yes.
A.
For sale to the public?
Q.
Yes. Currently available and unregulated.
A.
No.
Why are there no open-bolt semi-automatic
Q.
firearms?
A.
Because it's illegal to manufacture
semi-automatic weapons for sale to the general

1
2

public.
Q.

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A.

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It's illegal -I'm sorry, open bolt; sorry, pardon.


Q.
That's all right. You're more than
allowed to clarify your answers. Are open-bolt
operation and the use of a fixed firing pin design
characteristics of a machinegun?
A.
No.
Did you not just testify that you could
Q.
not have those, though, in a semi-automatic firearm?
A.
That doesn't claim to be a machinegun.
It's just someone said you can't have an open-bolt
semi-automatic for sale to the general public. It
doesn't say that it's a machinegun. I have three '82
semi-automatic-only weapons that are open-bolt fixed
firing pin.
Q.
Since 1982, have open-bolt operation and
fixed firing pins been exclusively allowed only in
machineguns?
A.
No. That technology is obsolete.
Q.
That technology is obsolete?
A.
Yes.
Q.
So no one has produced -A.
Yes, they had been produced, but not in
the U.S.
Q.
Have you produced a fully automatic PK
rnachinegun since 1982?
A.
Me?
Q.
Yes.
A.
No.
Q.
Are they still being produced, though?
A.
I'm sorry, repeat your question one more
time.
The first question about producing -Q.
A.
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PKM.

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1982?

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Q.

Have you produced a PKM machinegun since

A.
No, I have not.
Q.
Okay. Have other c ompanies produc ed, f or
commercial sale to the Government and l aw
enforcement, PK machineguns since 1982?
A.
Yes, they have.
Q.
Even though that's obsolete technology?
A.
Absolutely. We're still producing a
Browning M250 caliber.
Q.
So the Browning M250 is obsolete, as well?
A.
Well, in a lot of circles, it is, yes.
But just because it's still being produced doesn't
mean it ' s state of the art or the right thing to do .
Q.
When a manufacturer designs a machinegun,
does that machinegun always have to be referred back
to an existing model or can a manufacturer create an
entirely new model of their own?
A.
Create an entirely new model.
Q.
Did Historic Arms create an entirely new
variety of PK when they created the defendant?
A.
An e ntirely new model of?
Q.
PK machinegun.
A.
No . In my opinion, it's just an upper.
Q.
But you admit that that upper will expel
pro jectiles?
A.
Yes.
Q.
And you admit that that upper contains
what started out as a complete semi-aut omatic
receiver?
A.
Yes.
Q.
That receive r is still there present in
the defendant?
A.
Most of it.
Q.
Most of it. And that rec eiver has the
connecting points for the front trunnion?
A.
The fro nt trunnion is rive ted int o it .
Q.
That receiver has the rai l s to allow t he
bolt to go forward and back?

A.
Q.

Yes.
That receiver has a sl ot for an operating

handle?

A.

Yes.
That receiver has atta c hme nt points f o r a
fire control group?
A.
Yes .
Q.
Is it not just a receive r then?
A.
Not in my opinion, no .
It might not be a PK receiver as
Q.
traditionally thought of, but is it not a PK receiver
of its own design?
A.
No. It is a MAC upper bas e d on a PK-style
firearm feed mechanism, basically .
Q.
Is t here a portion o f a MAC upper in the
defendant?
A.
Yes.
Q.
Is that portion of a MAC upper considered
a firearm?
A.
No.
Q.
But isn ' t most of that r eceiver c omprised
of what was once a semi-automatic PK receiver ?
Q.

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MR . MONROE: When you say, "that
receiver," what do you
Q.
(By Mr . Foste r) The defendant . Isn't the

defendant mainl y composed of a semi-automatic PK


receiver?
A.
When you say most of it, do you want,
what, 75 percent of it is PK receiver and 25 is MAC?
Q.
Yo u're the expert. Tell me.
A.
I don't know what the percentage is of
either piece . You can't take a PK l ower and put back
into it. It uses a MAC disconnector surface in the
body. It is a MAC upper.
Q.
But haven't you seen it fire without the
MAC there, as well?
A.
So will a MAC upper.
MR . FOSTER: If we c ould, let's take about
a five-minute break.
MR . MONROE: Sure.
(Recess from 1:54 p . m. t o 2 : 22 p.m.)
Q.
(By Mr . Foster) Mr . Mayo , I j ust want t o
go through a few definitions real quick, and then
we're going to be done with you. Earlier you
testified you were familiar in general with the
definition of firearms under the Gun Contro l Act; is
that correct?
A.
Yes.
Q.
At that point I believe you stated it had
something to do with the ability t o expel proj ectile?

A.

Yes .
I'm going t o read the definition of the
Gun Control Act's definition o f fir earm, and I want
you to tell me whether or no t that is the actual
definition .
Title 18 United States Code Section
921 ( 1) ( 3) reads: The term firearm means, (A), any
weapon including a starter gun, which will or is
designed to or may readily be c onvert ed to e xpel a
projectile by the action of an explosive; (B), the
frame or receiver of any such weapon; (C), any
firearm muffler or firearm silencer; or, (D), any
destructive device. The term does not include an
antique firearm. Is that the definition under the
Gun Control Act of a firearm?
MR. MONROE : Counsel, are you just asking
him to say whether he thinks you read the Code
correctly?
MR. FOSTER : I'm asking h i m whether or not
that is the definition of firearm.
MR. MONROE : I'll obj ect on the ground it
calls for a legal conclusion. You can answer if
you know.
THE WITNESS: I don't quit e understand
what you're asking about reading.
Q.

Q.
(By Mr. Foster) What I j ust read, is that
the definition under the Gun Control Act of a
firearm?
MR . MONROE: Same objection.
THE WITNESS: Under the Gun Control Ac t
o f?
Q.
(By Mr. Fo s t er ) 1 968 , t he GCA.
A.
Sure .

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Q.

It is?

Do you agree that that definition

is correct?
MR. MONROE: Objection. Are you asking
him if the law is correct?
MR. FOSTER:
I'm asking him if he believes
that definition was correct or if he disagrees
with that definition.
MR. MONROE: I don't understand the
question.
MR. FOSTER: Withdrawn. At this time, we
don't have any further questions.
MR. MONROE: I don't have any questions.
(Deposition concluded at 2:25 p.m.)
(Pursuant to Rule 30(e) of the Federal
Rules of Civil Procedure and/or O.C.G.A.
9-11-30(e), signature of the witness has been
reserved.)
INDEX TO EXAMINATIONS
Examination

Page

3
27

Cross-Examination by Mr. Viscomi


Cross-Examination by Mr. Foster

INDEX TO EXHIBITS

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Plaintiff's
Exhibit

Description

Page

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CMP Armory Report

(Original Exhibit 1 has been attached to the


original transcript.)

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0061
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C E R T I F I C A T E
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STATE OF GEORGIA:
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COUNTY OF FULTON:
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I hereby certify that the foregoing
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transcript was taken down, as stated in the
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caption, and the questions and answers thereto
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were reduced to typewriting under my direction;
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that the foregoing pages 1 through 59 represent
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a true, complete, and correct transcript o f the
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evidence given upon said hearing, and I further
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certify that I am not of kin or counsel to the
14
parties in the case; am not in the regular
15
employ of counsel for any of said parties; nor
16
am I in any way interested in the result of said
17
case.

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"

This, the 18th day of September, 2009.


YOLANDA R. NARCISSE, CCR-B-2445

COURT REPORTER DISCLOSURE


[ORIGINAL ON FILE]

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Pursuant to Article 8.B. of the Rules and Regulations


of the Board of Court Reporting of the Judicial
Council of Georgia which states: "Each court reporter
shall tender a disclosure form at the time of the
taking of the deposition stating the arrangements
made for the reporting services of the certified
court reporter, by the certified court reporter, the
court reporter's employer, or the referral source for
the deposition, with any party to the litigation,
counsel to the parties or other entity. Such form
shall be attached to the deposition transcript," I
make the following disclosure:
I am a Georgia Certified Court Reporter. I am
here as a representative of Huseby, Inc. Huseby,
Inc. was contacted to provide court reporting
services for the deposition. Huseby, Inc. will not
be taking this deposition under any contract that is
prohibited by O.C.G.A. 15-14-37(a) and (b).
Huseby, Inc. has no contract/agreement to
provide reporting services with any party to the
case, any counsel in the case, or any reporter or
reporting agency from whom a referral might have been
made to cover this deposition. Huseby, Inc. will
charge its usual and customary rates to all parties
in the case, and a financial discount will not be
given to any party to this litigation.

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YOLANDA R. NARCISSE, CCR-B-2445

DEPOSITION OF JAMES A. MAYO, JR./JRN


I do hereby certify that I have read all
questions propounded to me and all answers given by
me on the 18TH day of September, 2009, taken before
Yolanda R. Narcisse, and that:

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1) There are no changes noted.


2) The following changes are noted:
Pursuant to Rule 30(e) of the Federal Rules of
Civil Procedure and/or the Official Code of Georgia
Annotated 9-11-30(e), both of which read in part:
Any changes in form or substance which you desire to
make shall be entered upon the deposition ... with a
statement of the reasons given ... for making them.
Accordingly, to assist you in effecting corrections,
please use the form below:

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If supplemental or additional pages are necessary,


please furnish same in typewriting annexed to this
deposition.

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JAMES A. MAYO, JR.


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Sworn to and subscribed before me,


This the
day of
, 20
Notary Public
My commission expires:

https://vip2 l .nationaldepo.com/myfiles/283099/091809JA.TXT
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9/30/2009

IN THE UNITED STATES DISTRICT COURT


FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
CASE NO.
vs.
1:09-CV-0192-GET
ONE HISTORIC ARMS MODEL 54RCCS
"7.62X54R CALIBER CONVERSION
SYSTEM" MACHINEGUN, SERIAL NO. Vl,
Defendant.
PLAINTIFF'S RESPONSES TO CLAIMANT'S
FIRST DISCOVERY REQUESTS

Pursuant to Rule 36 of the Federal Rules of Civil Procedure,


the United States of America, Plaintiff in the above-styled case,
hereby responds to Claimant Historic Arms' First Discovery Requests
as follows:
INTERROGATORIES

1. State the "criteria and methods used to classify your firearm as


a machine gun" as referred to in your letter of July 11, 2008.
RESPONSE: The criteria and methods used to classify the Defendant
Firearm

as

machinegun

are

described

evaluation letter (2008-472-MMK).

and

depicted

in

the

See Attachment 1.

2. Identify all design features of a machine gun exhibited by this


device as referred to in paragraph 2 of your letter of July 11,
2008.
RESPONSE: The Defendant Firearm contains a frame or receiver of a
PK

type

machinegun.

Additionally,

1364

the

Defendant

Firearm

RIF

incorporates

the

following

design

features

commonly

found

on

machinequns: open bolt operation and a fixed firing pin.

3. Describe how the device "would be readily restorable to shoot


automatically as a machine gun" as referred to in the second
paragraph of your letter of July 11, 2008.
RESPONSE :

To construct the Defendant Firearm, a semiautomatic PK

type receiver was modified by removing the machinequn bolt blocking


bar that is required in a semiautomatic PK type receiver to prevent
installation of PK machinegun parts and automatic fire.

The act of

removing the machinequn bolt blocking bar created a machinequn as


defined by 26 U.S.C. 5845 (d).

Since the ability of the Defendant

Firearm to fire was prevented due to the lack of a rear trunnion


(back plate); simply trapping the recoil spring within the receiver
returned the Defendant Firearm to firing condition .

4. Describe all alterati ons made to the device prior to or duri ng


testing and describe the reasons for such alte rations.
RESPONSE:

All

alterations

made

to

the

Defendant

Firearm

are

described and depicted in Attachment 1 .

5. Describe why you removed the factory trigger prior t o tes ting of
the device.
RESPONSE:

ATF

did not

remove

any

trigger

from

the

Defendant

Firearm.

6. Identify all cases where ATF Firearms Enforceme nt Office r Ma x


Kingery has testified in court or in deposition.

1365

RIF

RESPONSE: See Attachment 2.

7. Identify all experts you intend to call at the trial of this


action and provide the information about those experts, according
to Rule 26, Federal Rules of Civil Procedure.
RESPONSE: Firearms Enforcement Officer Max M. Kingery and Assistant
Chief, Firearms Technology Branch Richard Vasquez.

8. Identify all licenses held by Len Savage issued by ATF.


RESPONSE:
Savage.

There are no Federal Firearms Licenses issued to Len


Mr. Savage is a responsible person on a Federal Firearms

License issued to Historic Arms LLC (1-58-149-07-lG-01270) .

9.

For each Request for Admission that is deni ed,

provide an

explanation of the denial.


RESPONSE: Answered with each individual response.

10. Identify every document, record, memorandum, and corre spondence


in your possession or control relating to the HA54RCCS a nd your
evaluation of it.
RESPONSE: See Attachment 3.

11. Identify each person involved in your testing of th e HA54RCCS


and what role each person played in the testing.
RESPONSE: The term "testing" is undefined, but for purposes of the
classification of the

Defendant Firearm as

machinequn,

the

"testing" was performed by Firearms Enforcement Officer Max M.


Kingery.

12 . Identify each person involved in your dete rminat i on t hat the

1366

RIF

HA54RCCS is a machinegun, and what role each person played in the


determination.
RESPONSE:

Firearms

Enforcement

Officer

(FEO)

examined and classified the Defendant Firearm.


Firearms

Technology

Branch

Richard

M.

Max

Kingery

Assistant Chief,

Vasquez

reviewed

classification as FEO Kingery' s first line supervisor.

the

Chief,

Firearms Technology Branch John Spencer reviewed the classification


as FEO Kingery's second line supervisor.
REQUEST FOR DOCUMENTS

1. Provide copies of all testing procedures and manuals used to


examine the defendant device.
RESPONSE: See Attachment 4.

2. Provide copies of all testing procedures and manuals used to


determine that the device was a machine gun.
RESPONSE: See Attachment 1 and Attachment 4.

3.

Provide

copies

of all

criteria

used by the

Plaintiff to

determine that the Defendant device was a machine gun.


RESPONSE: See Attachment 1.

4. Provide copies of all working notes, in whatever form originally


docurnented(written, typed, computer generated, video, etc.) during
testing of the device.
RESPONSE: No such documents exist.

5. Provide copies of all ATF documents that refer or relate to


Historic Arms, Inc. or Len Savage.

1367

RIF

RESPONSE: Objection, this request is over broad and potentially not


relevant.

Plaintiff has self-limited its response to include only

documents that refer to or relate to "Historic Arms, LLC," "Len


Savage," and the Defendant Firearm that were created from April 20,
2008 (the date on which the Defendant Firearm was submitted to ATF)
until present.

Documents that are not withheld due to privilege

are provided in Attachment 3.

6. Provide copies of all ATF documents which refer or relate to the


subject device.
RESPONSE: See Attachments 1 and 3.

7. Provide copies of all video recordings or depictions of the


testing of the device.
RESPONSE: DVDs of the test firing of the Defendant Firearm on April
15, 2009 were previously released to Claimant's counsel.

DVDs of

the examination and test firing of the Defendant Firearm on June


10, 2009 are attached as Attachment 5.

8. Provide copies of all ATF testing of the Anthony Smith Mll/9


upper together with all documents related to the testing of that
device.
RESPONSE: Objection, this material may contain confidential tax
information whose release
Additionally,

this

is prohibited by 26 U.S.C.

material

is

not

relevant

and may

6103.

contain

proprietary infoi:mation whose disclosure is prohibited by 18 U.S. C.

1905.

Furthermore, Claimant is already in possession of this

1368

RIF

document as he has presented a copy of this document to the United


States Attorney's Office.

9. Provide copies of all ATF testing of the Calico Upper for the
MAC 10 and M-11 series together with all documents related to the
testing of that device.
RESPONSE: Objection, this material may contain confidential tax
information whose release is prohibited by 26 U.S.C.
Additionally,

this

material

is

not

relevant

and may

6103.

contain

proprietary information whose disclosure is prohibited by 18 U.S.C.

1905.

Furthermore, Claimant is already in possession of this

document as he has presented a copy of this document to the United


States Attorney's Office.

10. Provide copies of all ATF testing of the Fl emming type 22 Upper
for the MAC 10 and M-11 series together with all documents related
to the testing of that device.
RESPONSE: Objection, this material may contain confidential tax
information whose release is prohibited by 26 U.S.C.
Additionally,

this

material

is

not

relevant

and may

6103.

contain

proprietary information whose disclosure is prohibited by 18 U.S.C.

1905.

Furthermore, Claimant is already in possession of this

document as he has presented a copy of this document to the United


States Attorney's Office.

11. Provide copies of all ATF testing of the Stoney Creek Upper for
the MAC 10 and M-11 series together with all documents related to

1369

RIF

the testing of that device.


!mSPONSE: Objection, this material may contain confidential tax
information whose release is prohibited by 26 U.S.C.
Additionally,

this

material

is

not

relevant

and may

6103.

contain

proprietary information whose disclosure is prohibi tad by 18 U.S . C .

1905.

Furthermore, Claimant is already in possession of this

document as he has presented a copy of this document to the United


States Attorney's Office .

12.

Produce all ATF Safety Protocols and testing procedures.

!mSPONSE:

Objection,

this

request is

documents that are not relevant.


to

include

testing procedures

over broad and requests

ATF has self limited this request


that were used to evaluate the

Defendant Firearm and previously produced as Attachment 4.

13. Produce all proposed procedures referred to in:


a. Letter from Lewis P. Raden dated March 2, 200 6;
b. Congressional Research Service memorandum dated Octobe r 19 , 2005
and statements supplied by ATF July 2005,

Sep tember 2005 a nd

October 2005.
!mSPONSE: Objection, this request is not relevant as i t pertains to
documents written over two years prior to Claimant's submission of
the Defendant Firearm for classification which is the crux of this
case .

Furthermore, this request is vague as Plaintiff is unable to

determine what Claimant is referring to when i t requests "proposed


procedures."

Finally, Plaintiff is not the custodian of some or

1370

RIF

all of the documents souqht.

14. Produce all ATF Documents which refer to a shoestring as being


classified {or not classified} as a machine gun.
RESPONSE:

Objection, this material may contain confidential tax

information whose release is prohibited by 2 6


Additionally,

this

material

is

not

relevant

U.S. C.
and may

6103 .

contain

proprietary information whose disclosure is prohibited by 18 U.S. C.

1905.

Furthermore, Claimant is already in possession of this

document as he has presented a copy of this document to the United


States Attorney's Office.

15. Provide copies of all documents reviewed or prepared by any


expert that you have consulted or that you intend on testifying at
the trial or deposition in this matter.
RESPONSE: These documents have either been previously produced to
Claimant or have been produced in Attachments 1, 2, 3, 4, and 5.

16. Provide copies of all documents that you intend to use or


introduce at any deposition or at trial of this action.
RESPONSE: These documents have either been previously produced to
Claimant or have been produced in Attachments 1, 2, 3, 4, and 5.

17. Produce for inspection and testing, pursuant to prior agreement


of counsel,

the device and additional materials used in your

testing

the

of

device,

including

but

not

limited

to chain,

tensioning bolts, plate, duct tape, and tie wraps. Such production
shall take place at 1 p.rn. on June 10, 2009 at the Coweta County

1371

RIF

(Georgia)

Sheriff's Department range.

accompanied

by

ATF

personnel

Such production shall be

familiar

with

the

testing

you

performed on the device who can demonstrate the testing performed.


RESPONSE: This request was complied with in full on June 10, 2009.

18.

Produce every item identified in response to Interrogatory

Number 10 above.
RESPONSE: See Attachment 3.
REQUESTS FOR ADMISSION

1. Admit that the determination of whether a device is a machinegun


is

not

based

on

whether

the

device

contains

parts

from

machinegun.
RESPONSE: Objection, the term "parts" has not been properly defined
by Claimant.

Objection, Claimant has defined the term "device" to

mean the Defendant Firearm for purposes of Discovery.

Accordinqly,

this request is both vaque and confusinq and Plaintiff cannot Admit
or Deny this statement as written.

2.

Admit

HA54RCCS

that
is

the

not

presence

of parts

determinative

of

from machineguns

whether

the

on the

HA54RCCS

is

machinegun.
RESPONSE: Objection, aqain the term "parts" has not been properly
defined by claimant.

DENIED.

The Defendant Firearm incorporates

the frame or receiver of a machinequn; as such, i t is itself a


"machinequn" as defined in 26 U.S.C. 5845(b).

3.

Admit

that

many

semiautomatic

1372

(non-NFA)

firearms

contain

RIF

machinegun parts.
RESPONSE: ADMITTED.

Semiautomatic and fully automatic firearms may

utilize common parts such as stocks, barrels,


sights,

grips,

clips,

and other parts

springs,

levers,

that do not facilitate

automatic fire.

4. Admit that you converted the HA54RCCS into a machinegun.


RESPONSE: DENIED.
contains

the

The Defendant Firearm is a machinegun as i t

frame

or

receiver

of

PK-type

machinegun.

Additionally,

the Defendant Firearm is a machinegun as i t was

designed

shoot,

to

or

can

be

readily

restored

to

shoot,

automatically more than one shot, without manual reloading, by a


single function of the trigger.

5. Admit that you employed a "collection of parts" that, together


with the HA54RCCS, comprise a machine gun.
RESPONSE:

DENIED.

The Defendant Firearm is a machinegun as i t

contains a frame or receiver of a PK type machinegun.

The simple

addition of parts to capture the recoil spring of the Defendant


Firearm inside

its

receiver

returned

the

device

to

firing

condition.

6. Admit that the HA54RCCS is not a machinegun.


RESPONSE:

DENIED.

contains

the

The Defendant Firearm is a

frame

or

receiver

of

machinegun as i t

PK-type

machinegun.

Additionally,

the Defendant Firearm is a machinegun as i t was

designed

shoot,

to

or

can

be

1373

readily

restored

to

shoot,

RIF

automatically more than one shot, without manual reloading, by a


single function of the trigger

7. Admit that, without modification, the HA54RCCS as submitted to


FTB will not automatically fire more than one shot with a single
function of the trigger.
RISPONSE:

DENIED.

The

term

"modification"

is

not defined and

therefore the plaintiff cannot respond to this request.

8. Admit that the HA54RCCS is what is commonly referred to as a MAC


'upper.'
RESPONSE: DENIED. The Defendant Firearm is a PK-type machinagun
receiver

that has

been modified by

(among

other

things)

the

addition of a portion of a MAC-type upper.

9. Admit that a MAC upper is not a machine gun.


RESPONSE: Admit, an unmodified MAC-type upper is not a machinegun.

10. Admit that the HA54RCCS will not automatically fire more than
one shot with a single function of the trigger when installed on a
semiautomatic MAC lower.
RESPONSE: DENIED, for the following reasons:
a.

The Defendant Firearm is capable of firing automatically when

attached to a semiautomatic MAC-type receiver.


b.

It is not required that the Defendant Firearm be attached to a

second receiver in order to restore i t to a firing condition.

11. Admit that FTB Chief John Spencer advised Claimant to register
the HA54RCCS as a short barreled rifle.

1374

RIF

RJ!iSPONSE : DENIED. Claimant submitted the Defendant Firearm to the


A'l'F' s

Firearms 'l'echnology Branch

Claimant

submitted

documentation

("F'l'B")

for evaluation after

attempting

to

register

the

Defendant Firearm as a "short barreled rifle" to A'l'F' s National


Firearms Act ("NFA") Branch.
Defendant Firearm,

Following F'l'B's evaluation of the

the Defendant Firearm was

"machinequn" as defined by 26 U.S . C. 5845(b) .


Branch were notified of F'l'B' s

classified as

Claimant and NFA

classification and Claimant was

provided with an opportunity to amend its registration application


and refused.

12. Admit that you accepted the registration of the HA54RCCS as a


short barreled rifle.
RESPONSE: DENIED .

Claimant filed an A'l'F Form 2 to register the

Defendant Firearm before Claimant submitted the Defendant Firearm


for classification.

Since Plaintiff relies upon manufacturers of

firearms to properly classify and register their firearms, the NFA


Branch processed the A'l'F Form 2 assuming Claimant had properly
identified the Defendant Firearm.

Upon the subsequent examination

and classification by the F'l'B, the Defendant Firearm's registration


was frozen a1lowing for Claimant to amend its A'l'F Form 2 to reflect
the Defendant Firearm's status as a machinequn.

This

10~

Day of July , 2009.


Respectfully Submitted,
DAVID E. NAHMIAS
UNITED STATES ATTORNEY

1375

RIF

Isl G. Jeffrey Viscomi


G. JEFFREY VISCOMI
ASSISTANT U.S. ATTORNEY
GEORGIA BAR NO. 289074
600 U.S. COURTHOUSE
75 SPRING STREET, S.W.
ATLANTA, GEORGIA 30303
(404)581-6036 - Office
jeffrey.viscomi@usdoj.gov

1376

RIF

IN THE UNITED STATES DISTRICT COURT


FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
UNITED STATES OF AMERICA,
Plaintiff,

CASE NO.
vs.

1:09-CV-0192-GET
ONE HISTORIC ARMS MODEL 54RCCS
"7 . 62X54R CALIBER CONVERSION
SYSTEM" MACHINEGUN, SERIAL NO. Vl,
Defendant.
PLAI:NTIFF'S RESPONSES TO CLAIMANT'S
SECOND DISCOYERY REQUESTS

Pursuant to Rule 36 of the Federal Rules of Civil Procedure,


the United States of America, Plaintiff in the above-styled case,
hereby

responds

to

Claimant

Historic

Arms'

Second

Discovery

Requests as follows:
INTERROGATORIES

1.

Identify

and

describe

all

the

differences

between

the

semiautomatic and machinegun version of the PK-type firearm.


RESPONSE: A semiautomatic PK type firearm differs from a PK type
machinegun in that the semiautomatic PK type firearm utilizes a
striker-fired bolt that fires from the closed bolt.

Additionally,

the semiautomatic PK type firearm's receiver has widened bolt-guide


rails and a machinequn bolt blocking bar which are not present on
a PK type machinegun receiver .

2. Explain how you came to the conclusion that the PK receiver used
by Claimant in the manufacture of the Defendant came from a PK

1377

RIF

machinegun and not a semiautomatic version of a PK-type firearm. In


your

response,

include

discussion

of

how

you

applied the

differences you identified in response to Interrogatory # 1 above


to make your conclusion.
BESPONSE:

ATF has made no definitive statements regarding the

origin of the PK type machinegun receiver used in the assembly of


the Defendant Firearm.

The Defendant Firearm (as submitted by

Claimant for evaluation) is assembled with a machinegun receiver.


It was not known at the time of the initial evaluation if the
receiver was originally manufactured as a machinagun or was a
semiautomatic PK type receiver that was modified into a PK type
machinegun receiver prior to the initial evaluation.

Subsequent

statements submitted by Claimant and subsequent examinations show


that Claimant modified a semiautomatic PK type receiver into a PK
type

machinegun.

The

semiautomatic

features

described

Interrogatory No. 2, were removed or defeated by Claimant.

in

These

features were specified by ATF and designed by the semiautomatic


receivers' original manufacturer to prevent either a) installation
of unmodified machinegun fire-control components and/orb) function
of modified open-bolt machinegun fire-control components in an
unmodified semiautomatic receiver.

3. Identify the person or persons providing the substantive


information responsive to these discovery requests.
RESPONSE: Firearms Enforcement Officer Max M. Kingery, Assistant

1378

RIF

Chief, Firearms Technology Branch Richard Vasquez, Chief,


Firearms Technology Branch John Spencer.

4. Identify what provision{s) of Chapter 53 of Title 26 of the


U.S. Code you allege were violated giving rise to the seizure and
forfeiture of the Defendant. In your response, for each and every
element of such provision(s) you believe was {or were) violated,
identify the person{s) or entity{ies) responsible for the
violation{s) and what conduct of such person{s) or entity{ies)
met the requirements of such elements.
RESPONSE: In the document entitled "Complaint for Forfeiture,"
(Doc 1), Plaintiff plainly sets forth its legal theory for
forfeiture, citing to the relevant statutes in paragraphs nine
and ten.

5. Explain any denials to the Requests for Admissions below .


RESPONSE: Answered with each individual response.
REQUESTS FOR ADMISSION

1. Admit that if you installed the sample MAC upper shown in the
Letter into the MAC frame used in your April 15, 2009 test-fire
video, with the fire control components removed (as in your testfire video), it would be expected to function in the same
manner as the Defendant, i.e., it would discharge a projectile by
means of an explosive and it would fire automatically more than one
shot with a single function of the trigger.
RESPONSE: ADMITTED .

The sample MAC machinequn upper, shown in the

Letter, will discharge a projectile by means of an explosive and

1379

RIF

will fire automatically more than one shot with a single function
of a trigger when attached to the MAC-type machinegun frame used in
the April 15, 2009 test-fire video.

2. Admit that if the chain, plate, and duct tape you installed on
the Defendant were installed on the sample MAC upper shown in the
Letter, it would be expected to discharge a projectile by means of
an explosive, and admit further that it would fire automatically
more than one shot with a single function of the trigger if an
arrununi ti on feeding device were in place t o

feed a

second or

additional round of ammunition.


RESPONSE: ADMITTED as to part one (ending in" an explosive").
DENIED as to part two.

The sample MAC upper does not have the

ability to accept and function with an ammunition feeding device


unless i t is extensively modified or attached to a MAC frame. Only
if i t is modified to accept an ammunition feeding device and fitted
with a chain, plate and duct tape to capture the recoil spring

'

would i t fire automatically.

3.

Admit that

Admission

the

assembled device

above

would

described in Request

constitute

GCA

firearm

for

and

machinegun.
RESPONSE: Objection, as to the form of the question, as multiple
firearms

and firearm components

Admission No . 2.
to

mean

the

are described in Request for

Objection, Claimant has defined the term "device"


Defendant

Firearm

1380

for

purposes

of

Discovery.

RIF

Accordingly, this request is both vague and confusing and Plaintiff


cannot Admit or Deny this statement as written.

4. Admit you do not regulate the individual items described in


Request for Admission # 2 above in any way.
RSPONSE: Objection to the form of the question, as i t is vague as
to what individual items i t refers to.

ADMITTED IN PART, assuming

the "individual items" referred to are the chain, plate, tensioning


bolt or duct tape, as they would not be regulated by ATF unless
they were intended specifically for use in a firearm.
referring to a MAC-type upper,

as that is a

DENIED, if

firearm part and

therefore regulated under the Arms Export Control Act (AECA), 22


U.S.C. Chapter 2778.

5. Admit that Claimant is presently the true owner of Defendant,


and that if a forfeiture is not ordered in this case, Claimant's
claim for Defendant is sufficient for Defendant to be returned to
Claimant.
RESPONSE: ADMITTED in that Plaintiff does not challenge Claimant's
standing to contest this forfeiture action as an owner of the
Defendant Firearm.

This

lQth

Day of July, 2009.


Respectfully Submitted,
DAVID E. NAHMIAS
UNITED STATES ATTORNEY

Isl G. Jeffrey Viscomi


G. JEFFREY VISCOMI
ASSISTANT U.S. ATTORNEY

1381

RIF

GEORGIA BAR NO. 289074


600 U.S. COURTHOUSE
75 SPRING STREET, S.W.
ATLANTA, GEORGIA 30303
(404)581-6036 - Office
jeffrey.viscomi@usdoj.gov

1382

RIF

:~

'

U.S. Department (

..

.ustice

Bureau of Alcoh(ll, Tobacco,


Firearms and Explosives

(b) (6)
WashinJltlln, OC 20'.!16
W\\f\V.at(. ~,')\'

903050:(b) (6)
33 l l/2005-500

Mr. Leu Savage


President
Historic Arn1S LLC
1486 Cherry Road
Franklin, Georgia ~0217
Dear Mr. Savage:

This is iri reference to a classification sent to you on July 11, 2005 by the Firearm:; Technology
Branch (FTB), Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), regarding a
resubmission for examination and classi.fical'ion of a modified RPD 7.62x39mm-type upper
receiver assembly, designated lhe "BM-3000."
In our pxior correspondence with you we stated:

...

The reexamined, modified Historic Amu LLC "BM-3000" is a significantly redesigned assembly
when compared to an original RPD typefireann. The.frame, being designed to mate with the
frame or receiver ofan M-11/NINEmm typefirearm, wilf not allow the introduction ofan
original RPD bolt/bolT carrier assembly or a cocking handle.

In conclusion, FTB has determined that theframe ofthe submitted Historic Arms LLC "BM3000" does not constitute a frame or receiver ofa "firearm" as that term is defined in 18 U.S. C.
921 (a)(3). Additionally. the frame does not constitute a frame or receiver ofa ''nzachinegun"
as that term is defined iti 26 U.S.C. 5845(b).
Upon reconsideration, we are hereby overturning that classification.

As you are aware, Lhe National Fiream1s Act (NFA), 26 U.S.C. 5845(b), defines the tenn
"machinegun', as-

'

'"' ... any weapon which shoots, is designed co shoot, or can be readily restored to shoot,
automatically more than one shot, without manual reloadilZg, by a single function ofthe trigger. .
This term shall also include the frame or receiver ofany such Weapon, any part designed and
intended solely and exclusively, or combination ofparts designed and in.tended, for use in
converting a weapon into a machinegun, and any combination ofparts from which a
1rlachinegun can be assembled ifsuch pans are in the possession or under the control of a
person.

..

1383

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(
.
-2Mr. Len Savage

"Firearm" is defined i1118 U.S.C. 921(a)(3) of the Gun Control Act of J 968 (GCA), as
amended:

The term "firearm" means (A) any weapon (including a starter gun) which
will or is designed to or may readily be converted to expel a projectile by
the action of an explosive; (B) the frame or receiver of
such weapon;
(C) any firearm muffler or firearm silencer; or (D) any destructive device.
Such term does not inclu4e an antique firearm.

any

"Receiver" is defined in regulations implementing both the GCA and NFA, 27 C.F.R. 4 78.11
and 479.11, as "Thal part of a fireann which provides housing for the hammer, bolt or
breechblock, and firing mechanism, and which is usually tlU"eaded at its forvvard portion io
receive the barrel."

The "BM-3000" is comprised of the following components:

Receiver.

Top cover assembly.

F orea.nn.
Gas system.
Barrel approximately20- l/2 inches long.
Bolt carrier assembly.
Bolt.assembly.
Metal receiver insert approximately 3.074 inches (78rnm) long.
Modified shoulder stock assembly.

The receiverofihis sampJe is marked "HISTORIC ARMS LLC FRANKLIN


and "BM-3000" (right side).

GA~'

(left side)

The reexamination by FTB revealed the following characteristics/features of the receiver

assembly:

Manufactured from three separate sections (seams are visible internally).


Sides machined to accommodate a lower receiver assembly of an M-11/NlNEmm type
fireann, preventing installation of an original RPD-type trigger group.
Two extensions added to the underside of the RPD receiver for an M-11/NINEmm
takedown. pin.
Bolt-carrier slots undersized to approximately .198 inch (5mm), preventing installation of

an original RPD bolt carrier.


Approximately 5.622 inches (16mm) of the left bolt-carrier slot filled with weld.

1384

RIF

'
"
-3-

Mr. Len Savage

Melal bar approximately 8.75 inches (22lmm) by .505 inch {13mm) welded to the
exterior of the left receiver wall.
Top cover assembly marked ~'III( 372 6". No alterations or modifications were noted.

Further, the examination of the "BM-3000" found that a metal bar, approximately 6.25 inches x
.181 inch, had been welded into the (previous) cocking handle slot. There were four visible
welds securing the har to the receiver wall.

When assembled onto a lower receiver of an M-11 !NINEmm tYPe firearm as intended, the bolt
assembly cannot be withdrawn to the rear unless the top cover assembly is lifted.
Since the "BM-3000" provides housing for the boll, breechblock and firing mechanism,

it is a ''receiver'' as defined in 27 C.F.R. 478.1 t and 47~.1 t. Further, while it is not


tl~aded at the forward end, it does provide an attachment point for the barrel. Therefore,
it is a fircarm" as defined in 18 U.$.<;. 92l(a)(3) as it is the frame or receiver of any
wc~ipOn which will or is designed to or may readily be converted to expel a projeclile by
0

the action of an explosive.


The 'cBM-3000'' is a "machinegun'' as defined in the NFA due to its design characteristics and
features, which facilitate the firing of more than one shot, without manual reloading, by a single
function of the trigger, and because it incorporates the frame or receiver of a machinegun. Its
design features include its ability to utilize the same RPD gas system and feed system. It is also
belt- fed. Further, while it has been modified such that jt will no longer accept an original RPD
bolt/bolt canier assembly, the modified bolt assembly supplied does not prevent automatic fire,

and in fact is designed such that the firearm will only function in the automatic mode. Also, a
semiautomatic .firearm typically is striker fired or hammer fired. The BM3000 is designed to
fire from the open bolt and does not utilize a striker or hammer but rather incorporates the firing
pin in the bolt itself.
Our initial classification stated that it was neither a "machinegun" nor a ".fireann." This was
based on the differences between an original RPD and the subrnitted sample. When viewed
independently, jt is apparent that U1c firearm submitted is designed to shoot automatically with
the adqition of the M-11/N.INE type lower receiver. The prior classification was also based
the fact that the cocking handle slot was welded shul However, this would not prevent the
fireann from being fired were it to be assembled_

on

Further, if an M-11/NINE type submachinegun lower receiver is possessed along with the "BM3000'>, it would also be a machinegun as,it would be a combination of parts ftom which a
machinegun can be assembled_ This is because it appears that when the M-11/NINE type lower
receiver is adde~ it will fire more than one shot, without manual reloading, by a single function

1385

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(
,.

-4-

Mr. Len Savage


of the trigger. We did not test fire the sample submitled ai; a complete fitted sample was not
provided.
The "BM-3000" is subject to all of the controls of the NFA and GCA. Manufacture of tlle
rnachincgun for resale would be restricted to persons holding a manufacturer's license under the
GCA and qualified as Special Occupational Taxpayers (SOT) wider the NFA.
These .findings are applicable only to the specific item as submittc~. Any alterations, or
modifications to the "Bl\'.I-3000" may affect this classification and subject the assembly to
further review.
It should aJso be noted that attaching a registered pre-1986 M-11/NINE type submachincgun
lower receiver to the "BM-3000" does not result in a machinegun Lhat can he lega11y trausferred
to, or possessed by, the general public. 18 U.S.C. 922(0) prohibits the manufacture of
machineguns after May 19, 1986, for other than law enforcement use. Attaching a prc-1986
M-11/NINE type lower receiver to the "BM-3000" resulls in the manufacture of a new and
different machinegun Lhal hears liLLle resemblance to the prel986 registered mac.:hincgtUl.

The new firearm has many of the characteristics of an RPO. Little is left that resembles the
M-1 l/NINE. TI1e M-11/NTNE type submachinegun lower receiver is used merely as a fire
control system. Accordingly, the resulting weapon would not be a macltinegun that was lawfully
possessed prior to May 19, 1986, and can only be manufactured, transferred, and possessed for
law enforcement use.

In addition, .assembly of the two receivers amounts to ..makingu a machinegun under the NFA

which requires filing an ATF Form 1, or, in the case of a qualified Special Occupational
Taxpayer, 311 ATF Form 2, to register the newly assembled machinegun.
We trust the foregoing was responsive to your request for a classification.

Sincerely yours,

Sterling Nixon
Chief, Firearms Technology Branch

1386

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Case 1:09-cv-00192-GET

Document 38-2

Filed 10/28/2009

Page 1 of 32

IN THE l'NITED STATES DISTRICT COURT


FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
UNITED STATES OF AMERICA,

)
)
)
)
)

Plaintiff,

v.

No. 1:09-CV-00192-GET

ONE HISTORIC ARMS MODEL 54RCCS


)
"7.62X54R CALIBER CONVERSION
)
SYSTEM" MACHINEGUN, SERIAL NO. Vl, )
)
)

Defendant.

CLAIMANT'S MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION


FOR SUMMARY JUDGMENT
Introduction
Plaintiff brought this action for forfeiture of Defendant, a caliber conversion
device invented and owned by Claimant. Plaintiff claims that the Defendant is a
machinegun and was used in violation of federal firearms laws. Claimant will
show that the Defendant is not a machinegun but that, even if it were, it was not
used in violation of federal firearms laws and is therefore not subject to forfeiture.
Because Claimant is the true owner of Defendant, judgment must be entered in
favor of Defendant and Defendant must be returned to Claimant.

Background
Claimant Historic Arms, LLC, is a Special (Occupational) Taxpayer
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Case 1:09-cv-00192-GET

Document 38-2

Filed 10/28/2009

Page 2 of 32

("SOT") and Federal Firearms Licensee ("FFL"). Second Deel. of Lennis Savage,
~

3. In those capacities, Claimant is permitted under federal law to manufacture

and sell firearms' and NFA firearms (including machineguns). 26 U.S.C. 5851,

5852, 5861.
Because machineguns manufactured since May 19, 1986 are banned for
general citizen ownership [18 U.S.C. 922(0); 27 U.S.C. 479.105], the owner of

a "pre-ban" machinegun has an incentive to make his existing machinegun as


versatile as possible. 2110 Savage Deel., ~ 4. For that reason, it is popular among
machinegun owners to equip the machineguns with caliber conversion devices, so
that the machineguns may be used to shoot a variety of ammunition calibers. For
example, the "MAC" type machinegun, originally made for .380 ACP, 9 mm and
.45 ACP (i.e., "pistol caliber") ammunition, could, through the use of a caliber
conversion device, shoot rifle calibers as well. Id.,

5. It is against this landscape

The term "firearm" has multiple legal meanings. Under the Gun Control Act
("GCA"), 18 U.S.C. 921 (a)(3), a firearm means "(A) any weapon (including a
starter gun) which will or is designed to or may readily be converted to expel a
projectile by means of an explosive, (B) the frame or receiver of any such weapon;
(C) any firearm muffler or fiream1 silencer; or (D) any destructive device ... "
Under the National Firearms Act ("NFA"), 26 U.S.C. 5845 (a) (3)(4) and (6), a
firearm means, inter alia. a machinegun or a short barreled rifle. In this Brief,
"firearm" shall mean the GC A definition unless otherwise noted.
1

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/
/

Case 1:09-cv-00192-GET

that the present case arises.

Document 38-2

Filed 10/28/2009

Page 3 of 32

On or about April 21, 2008, Lennis Savage, President of Claimant, /


completed the manufacture of Defendant. Id., if 6. The purpose of Defendant is to
act as a caliber conversion device for the owner of a MAC type machinegun. Id., ,
7. When installed on a MAC machinegun, Defendant converts the caliber of the
MAC to 7.62X54R, a rifle cartridge commonly used in many former Eastern Bloc
firearms and for which surplus ammunition is readily available. Id., if 8.

While working on Defendant, Savage was in contact with the Bureau of


Alcohol, Tobacco, Firearms and Explosives ("ATF") Firearms Technology Branch
("FTB") personnel. Id.,

ii 9.

Savage, an experienced manufactur~ and designer of

many firearm systems and components, submits most of his inventions to FTB for
classification to make sure there will be no regulatory issues with them. Id., iJ 10.
During Savage's discussions with John Spencer, Chief of the FTB, Spencer
expressed concern that Claimant was making a caliber conversion device that
would make a pistol-caliber MAC machinegun into a rifle caliber machinegun. Id.,

if

11. Savage asked Spencer what his specific concern was, and Spencer said he

did not like the idea of a device such as Defendant being available for sale without

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Case 1:09-cv-00192-GET

Document 38-2

Filed 10/28/2009

Page 4 of 32

a background check, thus being lawfully sold "off the back of a pickup truck at a
gun show." Id.,

12. To address Spencer's concerns, Savage suggested that the

Defendant could have a barrel shorter than 16 inches attached to it and might
therefore fit the technical definition of a short-barreled rifle. 2 Id., ~ 13.
Because short-barreled rifles are NFA firearms, the transfer of one must be
approved by the ATF. Spencer expressed enthusiasm for Savage's suggestion, and
asked Savage "How soon can you get it here?"3 Id. ,

ii

14.

Savage quickly
I

completed the manufacture of Defendant with a barrel length of just less than 16
inches , registered it as a short-barreled rifled, and sent it to FTB for examination
as Spencer requested. Id.. ilil t 5-16.
On June 10, 2008, Spencer wrote Savage a letter, advising Savage that FTB
had classified Defendant as a machinegun. Id.,

17 and Exh. A. Spencer told

Savage that Savage would have to register Defendant again, but as a machinegun.

Id.,

ii

18. Because registration forms must be signed under oath, and because

Short barreled rifles are defined as rifles with barrels less than 16 inches in
length. 18 U.S.C. 92l(a)(8). As will be discussed in more detail later in this
Brief, Claimant has since come to the conclusion that Defendant is not a short
barreled rifle. Plaintiff and Claimant appear to agree on this conclusion.
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Document 38-2

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Page 5 of 32

Savage said he could not honestly state that Defendant is a machinegun, he


/

refused.

Id.. if 19. After additional back-and-forth discussion between Plaintiff

and Savage, Plaintiff instituted the instant forfeiture proceedings.


Argument

Plaintiff seeks forfeiture of Defendant pursuant to 26 U.S.C. 5872, which


provides, in pertinent part that .. Any firearm involved in any violation of the
provisions of this chapter shall be subject to seizure and forfeiture ...." Moreover,
"forfeitures are not favored ... forfeiture statutes are to be strictly construed against
the government." United States v. Eiglzt Hundred Thousand One Hundred Twenty

Seven Dollars and Seve11ty Cents. 2005 U.S.Dist. LEXIS 41287, 18 (D. DC 2005),
citing United States v. Seven !itfiscellaneous Firearms, 503 F.Supp. 565, 579 (D.
DC 1980).
Plaintiff claims that Claimant manufactured Defendant as a machinegun and

Claimant understands that there may be a dispute of fact over whether Spencer
responded as Savage testifies he did. If there is such a dispute, it is not material to
this Motion.
4
Claimant should stress that even registration of Defendant as a short-barreled rifle
required some reliance on ATF classifications with which Claimant disagrees.
Claimant believes Defendant should be treated the same as other, similar devices
that ATF has classified as not being firearms at all (GCA or NFA).
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Document 38-2

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Page 6 of 32

then failed to "properly" register Defendant, as required by 26 U.S.C. 584l(b).


Thus, in order for Plaintiff to prevail, Defendant must be a machinegun a11d
Claimant must have failed to register Defendant pursuant to 26 U.S.C. 584l(b).
Claimant will show that Defendant is not a machinegun, but that, even if it were, it
was registered and therefore not involved in a violation of Chapter 53.
I. Defendant is Not a Machinegun
"Machinegun" is a term of art under federal law, defined as:
The term 'machinegun" means any weapon which shoots, is designed
to shoot, or can be readily restored to shoot, automatically more than
one shot, without manual reloading, by a single function of the trigger.
The term shall also include the frame or receiver of any such weapon,
any part designed and intended solely and exclusively, or combination
of parts designed and intended, for use in converting a weapon into a
machinegun, and any combination of parts from which a machinegun
can be assembled if such parts are in the possession or under the
control of a person.
26 U.S.C. 5845(b) [Emphasis supplied]. Thus, a device can be a machinegun if
it meets any of the following criteria:
1.
2.
3.
4.

A weapon that shoots automatically .. .


A weapon that is designed to shoot automatically ...
A weapon that can be readily restored to shoot automatically ...
The frame or receiver of 1-3 above, a part designed and intended for
use in converting a weapon into a machinegun, and any combination
of parts from which a machinegun can be assembled.

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Document 38-2

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Pag

(b)(5) - Attorney Work Product

Plaintiff alleges that Defendant meets all of 2-4 above5 . Doc. 1, p. 3. Notably,
Plaintiff does not claim that Defendant actually shoots automatically, only that it is
designed to shoot automatically. In(b)(5)fact,
concedes that Defendant does
- AttorneyPlaintiff
Work Product
not shoot at all without modification. Claimant will discuss in tum each of Options
2-4 as they apply to Defendant.
Before addressing each of Options 2-4, however, additional background
facts must be introduced. Plaintiff "tested,, Defendant in an effort to see if Plaintiff
could convert Defendant into a machinegun.

To do so, Plaintiff attache

Defendant an aluminum plate, some plastic ties, and some duct tape.

(b)(5) - Attorney Work Product

attempting to make Defendant fire in this configuration, Plaintiffs c


contrivance failed. 2nd Savage

Deel.,~ 20, Exh. A, pp. 6-7.

Stepping up its game, Plaintiff tried once more, but this time replacing
tape and plastic ties with a steel turnbuckle {"tensioning bolt,,).

With

aluminum plate, length of steel chain, and steel turnbuckle installed on Defendant,
Plaintiff was able to cause Defendant to fire automatically in an uncontrolled

As to Option No. 4, Plaintiff actually only claims that Defendant meets the first
part of the test (the frame or receiver part). There is a legal flaw in Plaintiffs
claim that will be discussed below in Part ID.
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(b)(5) - Attorney Work Product

fashion. Id.,

if 21.

The firing was "uncontrolled" ecause, with Defe11da11t lacking

a11y ki11d of t,.igger meclza11ism, Plaintiff ha to initiate the firing sequence by


pulling and then releasing the bolt handle. Once initiated, the firing sequence
(b)(5) - Attorney Work Product

could not be stopped (there being no trigger to release), [Id.,

if 22] although an FTB

employee claimed he could have stopped the firing sequence by grabbing and
twisting the ammunition belt. Deposition of Max Kingery, p. 110. The same FTB
employee noted that Defendant had to be physically held down onto a surface
while firing it with Plaintifrs pm1s attached, in order to prevent Defendant from
"fly[ing] back and the barrel .. . pointing upward." Id., p. 111.
Plaintiff also demonstrated that Defendant would fire (as designed) by
mounting Defendant on a MAC machinegun.

Id.,

if

23.

With this additional

background, Claimant wi II address each of Items 2-4 from the statutory


machinegun definition.
I.A. Defendant is Not a Weapon
As an initial matter, both Item 2 and 3 from the machinegun definition
require that Defendant be a "weapon." The statute does not contain a definition of
"weapon," and ATF has not supplied one in its regulations.

Webster's New

Collegiate DictionmJ' defines "weapon" as "an instrument of offensive or


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defensive combat: something to fight with." While Defendant, as a fairly hefty


piece of metal, could conceivably be used as a club, Congress could not possibly
have intended such a usage in an entire body of law dealing with firearms. The
"weapon" in question surely must have to be a functional "firearm" (used in the
generic sense), i.e., one that shoots.
As Plaintiff admits, Defendant is incapable of shooting as manufactured:
Q. Is the Defendant as it sits here today in the same condition that it
was when received by FTB?
A. It appears to be with the exception of this slight damage ...
Q. Does that mean in the condition that the Defendant's in right now,
sitting on this table, it's not capable of firing?
A. Correct.
Q. You'd have to do something to it?
A. Yes, sir.
Q. Okay. There's nothing you could do to it with what's sitting there
right now to make it fire?
A. No, sir.
Kingery Depo., pp. 104-106.
1.B. Defendant is Not Designed to Shoot Automatically
Perhaps the best evidence of what a device is designed to do is what its
inventor says it is designed to do. In the instant case, Savage designed and built
Defendant himself. He described in detail in his deposition the process that he
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He had a customer who intended to purchase a

quantity of caliber conversion devices for MAC machineguns to use 7 .62X54R


ammunition. Deposition of Lennis Savage, pp. 88-130. Witnesses for Plaintiff
admit that Defendant does indeed convert the caliber of a MAC machinegun to
7.62X54R:
Q. And then when you fire the combination of the Defendant and the
MAC lower, you're firing at 7.62X54R?
A. Yes, sir.
Q. And when you fire the combination of a MAC lower with a MAC
upper, you're firing at the caliber of that particular MAC upper, is that
correct?
A. Yes, sir.
Kingery Depo., p. 140.
While not determinative, it is instructive to examine previous rulings by the
ATF on what the "designed to shoot" portion of the definition means. In ATF Rul.
83-5, ATF says, "The 'designed' definition includes weapons which have not
previously functioned as machineguns but possess specific machinegun design
features which facilitate automatic fire by simple alteration or elimination of

existing component parts." [Emphasis supplied]. Claimant demonstrated that


Defendant cannot fire at all with its existing component parts, and Plaintiff agrees.
2nd Savage Deel.,~ 25; Kingery Depo., pp. 104-106. Only by installing additional
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parts was Plaintiff able to make Defendant fire at all.


Given that Defendant does not fire without additional parts, and given that
Claimant specifically designed and manufactured Defendant to be a caliber
conversion device (that is not capable of firing by itself), it cannot be said that
(b)(5) - Attorney Work Product

Defendant is designed to shoot, automatically or otherwise. And, again, because


Defendant cannot shoot it is not a weapon at all.

Plaintiff has taken the position that because the Defendant uses an "open
bolt" and "fixed firing pin," Defendant must be a machinegun7 There is no statute
/

" or regulation stating that those features make a device a machinegun. Plaintiffs

(b)(5) - Attorney Work Product

own prior decisions indicate that this cannot be the case. See, e.g., ATF Rul 82-8,
holding that semiautomatic versions of the MAC manufactured prior to June 21,

Because Defendant is not a weapon, Claimant also concedes that Defendant does
not fit the definition of a short barreled rifle, either, and therefore should not be
registered at all.
7
Neither "open bolt" nor " fixed firing pin" are legal terms, but they are widely
used in the industry. Firing from an "open bolt" means that the bolt is held back
(open) while the device is at rest but ready to fire. Pulling the trigger generally
releases the bolt, which is under spring tension, allowing the bolt to close
(sometimes putting a round of ammunition in the chamber at the same time) and
commence the firing sequence. Using a "fixed firing pin" means that the firing pin
is not stricken by a hammer, but is "fixed" to the bolt, so that the closing of the bolt
also generally causes the firing pin to engage the primer of the ammunition, thus
firing a round.
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1982, and using an open bolt and fixed firing pin, are not machineguns.
The MAC, being one of the most widely held machineguns in private hands,
has generated perhaps the greatest variety of caliber conversion devices.
Savage Deel.,

if

26.

2"d

In particular, Plaintiff has classified the Fleming caliber


(b)(5) - Attorney Work Product

conversion device, which converts the caliber of the MAC machinegun to .22, as
not a firearm under either the GCA or the NFA. Id.,

if 27,

Exh. B. The Fleming

mounts on a MAC machinegun similarly to the way Defendant does. Id.,

if 28.

The Fleming also can be caused to shoot automatically using exactly the same
plate, chain, and turnbuckle Plaintiff used to cause Defendant to shoot
automatically (a fact that Claimant demonstrated using Plaintiffs parts). Id.,

ii 29.

The Fleming uses an open bolt and fixed firing pin. Id. , 27, Exh. B.
Plaintiff approved the Fleming conversion device in part beca11se it will 1101
work in a closetl-bolt !1t111111zerfirecl version of a MAC8 . Id. Plaintiff observed in
its letter to Mr. Fleming that the Fleming conversion device uses an open bolt.
Plaintiff concluded in its letter that the Fleming conversion device is 1101 a firearm
under either the GCA or the NFA. Id.

Defendant likewise will not function properly in a clos