* Crossposted from: FREEDOM'S_VOICE
Subject: institutional perjury
                       INSTITUTIONAL PERJURY
                     By James H. Jeffries, III
     On October 18, 1995, Thomas A. Busey, then Chief of the
National Firearms Act Branch of the Bureau of Alcohol, Tobacco and
Firearms (hereafter "BATF") made a videotaped training presentation
to BATF Headquarters personnel during a roll call training session.
"Roll call training" is weekly or periodic in-house training for
BATF officials -- a routine show-and-tell whereby bureaucrats learn
about each other's duties and functions.
     Busey's National Firearms Act Branch administers the National
Firearms Act of 1934, [footnote 1] the taxation and regulatory
scheme governing machineguns, silencers, short-barrelled rifles and
shotguns, destructive devices, etc.  In his capacity of NFA Branch
Chief Busey was the official custodian of the National Firearms
Registration and Transfer Record (hereafter "NFR&TR") mandated by 26
U.S.C.  5841.
     Busey's presentation was anything but normal, routine or
customary.  In describing the NFR&TR, Busey made the startling
revelation that officials under his supervision routinely perjure
themselves when testifying in court about the accuracy of the
NFR&TR.
     Every prosecution and forfeiture action brought by the United
States and involving an allegedly unregistered NFA firearm requires
testimony under oath by a duly-authorized custodian of the NFR&TR
that after a diligent search of the official records of which he/she
is custodian, no record of the registration of the firearm in
question was found (or was found but showed a different registrant
than the person being prosecuted). [footnote 2] An alternative
method of proving the same facts is by admission into evidence of a
certified copy under official Treasury Department seal of a similar
written declaration by the custodian. [footnote 3] This is a
critical element of the government's proof and, according to Busey,
occurred 880 times in 1995 alone (presumably Fiscal Year 1995).
     Busey began his roll call presentation by acknowledging that
"Our first and main responsibility is to make accurate entries and
to maintain accuracy of the NFRTR...."  Moments later Busey makes
the astonishing statement that
         ... when we testify in court, we testify that the data
    base is 100 percent accurate.  That's what we testify to, and
    we will always testify to that.  As you probably well know,
    that may not be 100 percent true.
Busey then goes on for several  minutes  describing  the  types of
errors which creep into the NFR&TR and then repeats his damning
admission:
         So the information on the 728,000 weapons that are in the
    data base has to be 100 percent accurate.  Like I told you
    before, we testify in court and, of course, our certifications
    testify to that, too, when we're not physically there to
    testify, that we are 100 percent accurate.
How bad was the error rate in the NFR&TR? Busey again:
         ... when I first came in a year ago, our error rate was
    between 49 and 50 percent, so you can imagine what the accuracy
    of the NFRTR could be, if your error rate's 49 to 50 percent.
     Does anyone recall the phrase, "Hey, close enough for
government work"?
     consider this matter in its starkest terms: a senior BATF
official lecturing other senior BATF officials at BATF national
headquarters in Washington, D.C., declares openly and without
apparent embarrassment or hesitation that BATF officers testifying
under oath in federal (and state) courts have routinely perjured
themselves about the accuracy of official government records in
order to send gun-owning citizens to prison and/or deprive them of
their property.  Just who is the criminal in these cases?
     All this was too brazen for even some BATF officials to
stomach.  Acting on tips from several BATF officials (there are
honest men and women in government, even in BATF), I promptly filed
a Freedom of Information Act [footnote 4] demand precisely
describing the Busey tape.  The first reaction was predictable.
After reviewing the incriminating tape, BATF officials discussed
whether they could get away with destroying it.  Wiser heads
prevailed; obviously any outsider who knew of the tape probably
would learn of its destruction -- and I would have.  Or perhaps all
the official shredders were on loan to the White House.
     After much tooing and froing with a dismayed Department of
Justice a transcript of the Busey tape was sent to me in February
1996.  The Department of Justice was dismayed because the Busey tape
was clearly Brady material.  Every defense lawyer knows that under
the Supreme Court's 1963 decision in Brady v. Maryland, 373 U.S. 83,
the government is required in all criminal prosecutions to provide
the defense, in advance of trial, with any evidence tending to show
the defendant's innocence.  Failure to do so can result in dismissal
of an indictment, reversal of a conviction, or other sanctions.
Willful failure to produce Brady material can constitute contempt of
court, professional misconduct, or even a crime.
     The Busey tape was clearly exculpatory and clearly implicated
every National Firearms Act prosecution and forfeiture in living
memory.  Worse yet, Busey was only the tip of the iceberg.  When the
fog had cleared Justice learned that the NFR&TR inaccuracy problem
had been the subject of internal BATF discussion since at least
1979.  BATF's files were replete with minutes of meetings,
statistical studies, memoranda, correspondence, etc., admiring the
problem.  The only thing missing was any attempt to correct the
problem, or to reveal it to anyone outside the agency. [footnote 5]
     Justice has now commenced the painful chore of advising every
NFA defendant in the country of the situation.  It did this with a
recent mass mailing by United States Attorneys to defense lawyers
and defendants of relevant BATF documents, including the Busey
transcript.
     The direct consequences of this institutional perjury are just
now beginning to occur.  In Newport News, VA, on May 21, 1996,
United States District Judge John A. Mackenzie, after reviewing the
Busey transcript, promptly dismissed five counts of an indictment
charging John D. LeaSure with possession of machineguns not
registered to him. [footnote 6] LeaSure, a Class II NFA
manufacturer, [footnote 7] had received BATF transfer approval for
the five guns, but then decided to void the transfers and keep the
guns, as he was legally permitted to do.  He promptly faxed the
voided Forms 3 to NFA Branch. [footnote 8]
     BATF subsequently raided LeaSure and charged him with illegally
possessing the five NFA firearms  which,  according to the NFR&TR,
were registered to someone else.  The government ignored the fact
that on the date LeaSure said he voided the transfers there was a
21-minute call on his toll records from his fax number to NFA
Branch's fax number -- at a time when he could have had no idea he
would one day be prosecuted for continuing to possess the guns.
Rather, the prosecution produced NFA Branch firearms specialist Gary
Schaible to testify as custodian of the NFR&TR that the governments
official records did not show any voided transfers and therefore
LeaSure was in illegal possession of the guns. [footnote 9]
     In essence Schaible was testifying that "We can't find an
official record and therefore the defendant is guilty."  What we now
know is that Schaible should have testified that "We can't find half
our records -- even when we know they're there -- and therefore
we're not sure if anyone is guilty."
    The government's case was not aided when Schaible was forced to
admit on cross-examination that two NFA Branch examiners were
recently transferred because they had been caught shredding NFA
registration documents in order to avoid having to work on them.
[footnote 10] Note that they were "transferred."  Not disciplined.
Not fired.  Not prosecuted.  Not destroyed in place.  Transferred.
Just who is the criminal in these cases?
     It is too early to predict how many new trials, appeals and
habeas corpus actions will result from this affair.  Also of
importance is the number of convicted felons presently suffering
legal disabilities from flawed firearms convictions and what effect
the Busey disclosures will have on their situation.
     The indirect consequences of BATF's conduct will not be so
readily apparent but are potentially devastating.  All across the
country Assistant United States Attorneys, United States District
Judges, and other federal and local law enforcement officials are
going to learn what most defense lawyers and gun dealers have known
for years and what the aftermath of Waco and Ruby Ridge starkly
illustrated: BATF officers and agents lie, dissemble and cover up on
an institutionalized basis.  These are not aberrations; they are an
institutional ethic, an organizational way of life.  Just who is the
criminal in these cases?
     Lawyers and defendants in NFA cases who have not received the
"Busey" package from the United States Attorney should be making
prompt demands -- both for the package and for an explanation of why
it was not timely produced.  I am acting as an informal clearing
house for these matters.  Those lawyers or dealers with questions or
problems, or with new information, involving the Busey phenomenon,
or its continuing aftermath, are invited to contact me at (910) 282-6024.
[The author is a retired U.S. Department of Justice lawyer and a
retired colonel in the Marine Corps Reserve practicing firearms law
in Greensboro, NC.  He is a 1959 graduate of the University of
Kentucky and a 1962 graduate of the UK College of Law, where he was
Note Editor of the Kentucky Law Journal.  He is a life member of the
NRA and holds BATF in minimum high regard.]
                             END NOTES
1.  Public Law No. 474, ch. 757, 48 Stat. 1236-1240 (Act of June
26, 1934), 26 U.S.C.  1132-1132q; as amended by Act of April 10,
1936, ch. 169, 49 Stat. 1192; as codified by chap. 736, Act of
August 16, 1954 (Internal Revenue Code of 1954), 68A Stat. 721-729;
as amended by Public Law No. 85-859, Title II, 203, 72 Stat. 1427,
1428 (Act of September 2, 1958); as amended by Public Law No. 86-478, 
1-3, 74 Stat. 149 (Act of June 1, 1960); as amended by
Public Law No. 90-618, Title II,  201, 82 Stat. 1227-1235 (Act of
October 22, 1968); as amended by Public Law No. 94-455, 90 Stat.
1834 (Act of October 4, 1976); as amended by Public Law No. 99-308,
 109, 100 Stat. 449, 460 (Act of May 19, 1986); and as amended by
Public Law No. 100-203, 101 Stat. 1330 (Act of December 22, 1987);
Internal Revenue Code of 1986, Title 26 United States Code, ch. 53,
26 U.S.C.  5801-5872 (Title II of the Gun Control Act of 1968).
2.  See Federal Rule of Criminal Procedure 27 and Federal Rule of
Civil Procedure 44.  See also Rules 803(8), 901(b)(7), 902(l), (2),
(4), and 1005 of the Federal Rules of Evidence.
3.  Ibid.
4.  5 U.S.C.  552.
5.  The first rule of a bureaucrat is "Never disturb a body at
rest." The second, "If I don't do anything, I can't do anything
wrong." The third, "When in doubt, mumble."
6.  United States v. LeaSure, Criminal No. 4:95CR54 (E.D. Va.,
Newport News Div.).
7.  "Special occupational Taxpayers" under 26 U.S.C.  5801 fall
into one of three categories: Class III dealers can possess, sell
and transfer NFA firearms; Class II manufacturers can, in addition,
manufacture and register them; Class I importers can, in addition to
all the foregoing, import them.  All SOTs are also required to
possess Federal Firearms Licenses, which themselves come in six
different classifications.  Throw in the import and export licenses
and permits required, the various taxes imposed, and the state and
local licensing and registration schemes involved, the mandatory
record-keeping required, and the shipping and transportation
limitations concerned, and you have a lawyer's paradise.
8.  BATF Forms 3 are used to authorize tax-exempt dealer-to-dealer
transfers and to re-register the firearm(s) involved to the
transferee.  There are numerous other transfer and registration
forms used depending upon the nature of the transaction, the status
of the parties involved, and the type of firearm and its origin.
9.  Violations of the NFA are all 10-year, $10,000 felonies.  See
26 U.S.C.  5871.  NFA firearms, which carry some impressive sticker
prices, are also forfeit if used in any violation of the NFA.  See
26 U.S.C.  5872.
10. We are left to conjecture where the NFA Branch shredder is
located in relation to its fax machine.
11.  In addition to the loss of civil rights imposed on convicted
felons by the laws of most states, felons permanently lose the right
under federal law to possess firearms, as well as being potentially
debarred from service in the armed forces, civil employment in
government, receiving security clearances, bidding on federal
contracts, etc.
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