By JOHANNA REEVES, ESQ., With Guest Contributor Stephen Halbrook
On October 4, 2018, a jury in Ohio found Kelland Jamieson Wright NOT GUILTY of knowingly possessing an unregistered short barrel rifle. The product at the center of the case was a Sharps Bros. AR-type pistol, which the government accused Mr. Wright of “designing” into a short barrel rifle by affixing a shoulder stock and other accessories the government claimed made the firearm redesigned and intended to be fired from the shoulder. Because the firearm had a barrel measuring 9 and 7/8 inches, the government contended the firearm was a short barrel rifle subject to the National Firearms Act (NFA).
The two main issues of the case were: (1) whether the Wright firearm was a rifle, and (2) whether Mr. Wright knew his firearm had characteristics that brought it under the controls of the NFA (i.e., a short barrel rifle). The jury ultimately found Mr. Wright not guilty of possessing an unregistered short barrel rifle. But despite the failed prosecution, it is important to examine the government’s case, as it pulls the curtain back on procedures at the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), Firearms and Ammunition Technology Division (FATD), for evaluating AR-type pistols with certain accessories.
A jury decides questions of fact only for the particular case for which it is empaneled. As such, its decisions are not legally binding precedent. Is it therefore possible that the ATF technical evaluation procedures at the heart of the Wright case are still in place? Absolutely. Unfortunately, ATF has not issued any public guidance on what constitutes a shouldering device, so its procedures for reviewing AR-type pistol accessories are not known beyond the walls of ATF.
I. The National Firearms Act
As readers are aware, the NFA imposes strict registration and transfer controls over those firearms identified in the statute. See generally 26 U.S.C. Ch. 53. The NFA-con-trolled firearms include short barrel rifles, which the statute defines as “a rifle having a barrel or barrels of less than 18 inches in length.” 26 U.S.C. § 5845 (a)(3). The statute further defines “rifle” as: “a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder and designed or redesigned and made to use the energy of the explosive in a fixed cartridge to fire only a single projectile through a rifled bore for each single pull of the trigger, and shall include any such weapon which may be readily restored to fire a fixed cartridge.” 26 U.S.C. § 5845(c).
The NFA requires a manufacturer, importer and maker to register each firearm he or she manufactures, imports or makes. See 26 U.S.C. § 5841(b). Possession of an unregistered firearm is a violation of the NFA (26 U.S.C. § 5861 (d)) that subjects the violator to possible penalties of a fine of not more than $10,000.00, imprisonment of not more than 10 years, or both (26 U.S.C.§ 5871) as well as forfeiture of the firearm (26 U.S.C. § 5872).
In terms of prosecutions of possession under the NFA (§ 5861 (d)), the U.S. Supreme Court held in Staples v. U.S., 511 U.S. 600 (1994), that to obtain a conviction under § 5861(d), the government is required to prove beyond a reasonable doubt that the defendant knew the weapon he or she possessed had characteristics that brought the weapon within the statutory definition of a firearm. This standard was central to one of the key issues in the Wright case.
II. The Wright Case
In U.S. v. Kelland Jamieson Wright (Case No. 3-18CR162), the government charged Mr. Wright with knowingly possessing an unregistered short barrel rifle in violation of 26 U.S.C. § 5861(d). On October 2, 2018, the jury trial of Mr. Wright began in the U.S. District Court for the Northern District of Ohio. The government’s prosecution centered on the following elements:
- Mr. Wright knowingly possessed a firearm;
- The firearm had characteristics that required it to be registered in the National Firearms Registration and Transfer Record (NFRTR) because it was a short barrel rifle;
- Mr. Wright knew the firearm had those characteristics (that it was a rifle having a barrel less than 16 inches in length);
- The firearm was in operating condition; and
- The firearm was not registered in the NFRTR.
Three of these elements were not disputed, so the case came down to two key issues: (1) whether Mr. Wright’s firearm was in fact a short barrel rifle, and (2) whether Mr. Wright knew his firearm had the characteristics that brought it within the NFA controls.
To prove its case to the jury, the government relied on the testimony of the FATD Firearms Enforcement Officer (FEO) who had examined Mr. Wright’s firearm during the criminal investigation and determined it was a short barrel rifle under the NFA. Her testimony, quite frankly, was astonishing, as you will see. All statements quoted herein are taken from the trial transcripts.
According to the government, the question was not whether Mr. Wright knew how ATF would classify his firearm, but instead whether he knew his firearm had the characteristics of a rifle.
A. Was the Wright Firearm a Short Barrel Rifle?
The first element the government had to prove to the jury beyond a reasonable doubt was that Mr. Wright’s firearm was a rifle. The statute defines a “rifle” in part as “a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder.” 26 U.S.C. § 5845(c).
To support its charge that the Wright firearm was in fact a rifle, the government focused on the after-mar-ket accessories, especially the Maxim Defense extension piece, to which Mr. Wright had attached a Nev-a-Slip brand rubber cane tip. The defense presented Richard Vasquez, formerly acting director of ATF’s Firearms Technology Branch, as an expert who testified that the Maxim extension piece was used as a cheek rest. The FEO, however, insisted the cane tip was a “pad” that had no other use than to fire the weapon from the shoulder.
“The pad redesigns the firearm in a way that shows its intent or use that makes it able to be fired from the shoulder. It’s a shouldering surface.”
The FEO testified:
I looked at the firearm and noticed that it’s an AR-type firearm. It can’t be a pistol because it has a forward grip on the front, and it has a smoldering device … this extension piece, in the way that it [has] been modified from its original purpose, arrives me–with all the other elements–arrives me at the conclusion that this is a firearm that is designed or rede-signed, and intended to be fired from the shoulder.
As part of her examination of the Wright firearm, the FEO measured the length of pull. Of course, length of pull is not part of the federal firearms regulations, and the FEO clearly admitted this. Nevertheless, she described the measurement as demonstrating whether a firearm is designed or redesigned to be fired from the shoulder.
The length of pull is the distance that one would have to reach when shouldering a weapon … . And the industry standard for rifles and shotguns that are made, shoulder-fired weapons, they are made with length of pull between 13 ½ and 14 ½ inches, and that’s also taken from the NRA handbook. That’s not a federal law.
The FEO determined the length of pull for the Wright firearm to be 13 ¾ inches, measuring the distance diagonally (not straight in a line parallel to the axis of the barrel) from the center of the trigger to the center of the rubber cane tip. When asked by the prosecution why the length of pull is important in the context of classifying a firearm under the NFA, the FEO explained: “Well, the length of pull … goes toward the redesign or remaking of the firearm as intended to be fired from the shoulder, because … it has a length of pull that is for no other purpose other than to shoulder fire the weapon.” [Emphasis added.]
Does ATF hold the same view as the FEO on length of pull? In other words, if length of pull of an AR-type pistol with an accessory is 13 ½ inches or greater, does ATF believe the accessory is for no other purpose than to shoulder fire the weapon? Is there in fact an official stance that AR-type pistols with accessories such as cheek rests, braces and other extensions must have a length of pull under 13 ½ inches to avoid being classified as a short barrel rifle?
Defense expert Vasquez testified the cheek brace was simply an anchor point to be held against the cheek, not a shoulder stock, adding, “I would never measure length of pull for an ATF classification.” In any event, the correct way to measure the length of pull is “from the center of the trigger perpendicular to the bore, … not at an angle.” When so measured, the length of pull was shorter than the industry standard for a shoulder stock.
The defense also honed in on the critical flaws with the FEO’s analysis: (1) the ATF does not have a specific SOP for determining “fired from the shoulder;” (2) ATF has not issued any public or internal guidance on the use of length of pull in evaluating whether a firearm is intended to be fired from the shoulder; and (3) ATF has used length of pull to evaluate wrist brace devices (“in some cases, the designer or manufacturer had what they called a wrist brace on an extendable piece that extended out to a distance that was within that length of pull distance that we have said this is getting into the area of becoming a shoulder device.”).
Revealingly, the government fought vigorously to prevent the defense from including testimony on the ATF classification letters Wright researched.
So in the end, this first issue came down to the experts and who the jury found to be most credible on the Maxim extension. The government had the burden of proof, so the jury would have had to accept the opinion of the government’s expert (the FEO) as the only correct opinion beyond any reasonable doubt. The judge instructed the jury on this point as follows: “If you find that the evidence in this case could reason-ably support either of two conclusions–one of guilty, the other of non-guilt–you must return a verdict of not guilty.”
B. Did Wright Know His Firearm Was an SBR?
The second critical issue in dispute was whether Mr. Wright knew his firearm was in fact designed or redesigned and intended to be shot from the shoulder. According to the government, the question was not whether Mr. Wright knew how ATF would classify his firearm, but instead whether he knew his firearm had the characteristics of a rifle.
The defense argued that, in line with the Supreme Court decision in Staples, the government could not prove beyond a reasonable doubt that Mr. Wright knew his firearm had the characteristics that would bring it into the definition of a short barrel rifle. Mr. Wright himself testified to the research he had conducted and on which he relied when attaching accessories to his firearm, to confirm his belief that the cheek brace would not constitute a shouldering device. Included in his research was information on the Internet, such as the manufacturer’s website advertisement of the extension piece as a cheek brace (a fact to which Mr. Vasquez also testified), and redacted private ATF classification letters posted on the Internet.
Revealingly, the government fought vigorously to prevent the defense from including testimony on the ATF classification letters Wright researched. The letters were not addressed to him, and none related to his firearm or its extension piece. According to the Assistant U.S. Attorney arguing in the pre-trial hearing on September 27, 2018:
It would be a different case if Mr. Wright were appealing a decision that ATF made administratively classifying the firearm a short-barreled rifle … . That’s not what’s happening here. Here, the inquiry is how did this specific physical object work. Is it designed to be fired from the shoulder or not? What Mr. Wright thought ATF might say isn’t relevant to any essential element in this case.
In short, the government tried arguing the letters did not bear on Mr. Wright’s knowledge about his firearm, only what Wright thought ATF might say about his firearm.
But the court disagreed, stating “… the issue is intent. That’s the core issue, intent and understanding … it’s important that he be permitted to tell the jury what was on his mind. You know, that fact that he may have believed he was in the clear … steps he could have taken he didn’t take, so forth and so on.”
On this second issue, Mr. Wright’s knowledge, the case offers an important look at whether an individual can reasonably rely on his or her own research as to whether certain accessories could cause the firearm to become a short-barrel rifle. Mr. Wright himself did not obtain a classification determination from ATF on his firearm with the accessories he attached. Indeed, the only FATD evaluation occurred in the context of the government’s criminal investigation of Mr. Wright’s possession of the firearm. But is obtaining an FATD classification ruling the only way one can avoid criminal prosecution of possession under the NFA? And would FATD really like to invite potentially millions of gun owners to send it requests for classifications? Query, what prosecutorial merit existed in the case, other than to test an unprecedented push of the envelope of the meaning of an NFA firearm in a manner not defined by Congress?
In the end, after a short deliberation, the jury found Mr. Wright NOT GUILTY of possession of an unregistered short-barrel rifle. While no doubt a victory for Mr. Wright, this case also provides valuable insight into ATF firearm classification evaluations and the government’s view of what constitutes a shouldering device.
Unfortunately, we don’t know which element the government failed to prove to the jury beyond a reasonable doubt, or if it failed on both. We also don’t know how a different jury in a different jurisdiction would have decided. The loss is not binding on ATF operations or the Department of Justice’s prosecution of these types of firearms, but hopefully they will heed its lessons.
The author extends her appreciation to Stephen Halbrook (stephenhalbrook.com), author of Firearms Law Deskbook, for his invaluable contributions to this article.
The information contained in this article is for general informational and educational purposes only and is not intended to be construed or used as legal advice or as legal opinion. You should not rely or act on any information contained in this article without first seeking the advice of an attorney. Receipt of this article does not establish an attorney-client relationship.
About The Author
Johanna Reeves is the founding partner of the law firm Reeves & Dola, LLP in Washington, DC (reevesdola.com). For more than 15 years she has dedicated her practice to advising and representing U.S. companies on compliance matters arising under the federal firearms laws and U.S. export controls. Since 2011, Johanna has served as Executive Director for the Firearms and Ammunition Import/Export Roundtable (F.A.I.R.) Trade Group (http://fairtradegroup.org). She has also served as a member of the Defense Trade Advisory Group (DTAG) since 2016. Johanna can be reached at jreeves@reevesdola.com or 202-715-9941.A
| This article first appeared in Small Arms Review V23N6 (JUNE/JULY 2019) |
