[Congressional Record Volume 142, Number 117 (Friday, August 2, 1996)]
[Extensions of Remarks]
[Pages E1461-E1462]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

[[Page E1461]]


                         INSTITUTIONAL PERJURY

                                 ______
                                 

                         HON. DAVID FUNDERBURK

                           of north carolina

                    in the house of representatives

                         Friday, August 2, 1996

  Mr. FUNDERBURK. Mr. Speaker, 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 rollcall 
training session. Rollcall 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,* the taxation and regulatory scheme governing 
machineguns, silencers, short-barreled rifles and shotguns, destructive 
devices, and so forth. 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. Sec. 5841.
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     * Footnotes at end of article.
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  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.\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.\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 rollcall 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, DC, 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 \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 the 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, et cetera, admiring the problem. The only thing missing 
was any attempt to correct the problem, or to reveal it to anyone 
outside the agency.\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 U.S. 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, U.S. 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.\6\ LeaSure, a Class II 
NFA manufacturer, 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.\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 Government's official records did not show any voided 
transfers and therefore LeaSure was in illegal possession of the 
guns.\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.\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 \11\ 
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 U.S. attorneys, U.S. district judges, and other Federal and 
local law enforcement officials are going to learn what most defense

[[Page E1462]]

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 U.S. 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.]


                               footnotes

     \1\ Public Law No. 474, ch. 757, 48 Stat. 1236-1240 (Act of 
     June 26, 1934), 26 U.S.C. Sec. Sec. 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, Sec. 203, 72 Stat. 1427, 1428 (Act of 
     September 2, 1958); as amended by Public Law No. 86-478, 
     Sec. Sec. 1-3, 74 Stat. 149 (Act of June 1, 1960); as amended 
     by Public Law No. 90-618, Title II, Sec. 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, Sec. 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. 
     Sec. Sec. 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(1), (2), (4), and 1005 of the Federal Rules of Evidence.
     \3\ Ibid.
     \4\ 5 U.S.C. Sec. 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. 
     Sec. 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 exports 
     licenses and permits required, the various taxes imposed, and 
     the State and local licensing and registration schemes 
     involved, the mandatory recordkeeping 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 are to reregister 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. Sec. 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. Sec. 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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