"Constructive possession" bust in FL

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  • shooter521

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    But hey, nobody ever gets busted for that, right?

    From naplesnews.com:
    3945891.jpg


    A Naples man is accused of trying to sell a short-barreled rifle, which is considered an illegal weapon, over the Internet.

    Jesus Amador, Jr., 27 of 2921 NE 20th Avenue, Naples, was arrested Thursday and charged with possession of a short barreled rifle.

    Lee County Sheriff Mike Scott obtained the initial information about Amador from a craigslist.com ad listing that featured sale of firearms on the Web site. The ad featured a Bonita Springs reference.

    The investigation revealed that one of the firearms for sale was a short-barreled rifle, which is illegal to possess without a federal stamp. Undercover detectives set up a meeting with the seller, Amador, Jr. During that meeting, the detectives were able to inspect the weapon and determined it was indeed a short barreled rifle. Amador was unable to provide documentation necessary to possess such a weapon and was arrested.
     

    lpso708

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    Well if you have the parts can be said able to be made into one. Same with full auto you have parts you have weapon.
     

    WabashMX5

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    WabashMX5

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    The "constructive" part is that he was selling a perfectly legal SP89 pistol, along with a "K" grip and folding stock that were not attached to the gun (see pic).

    Ah, gotcha -- my mistake. I didn't see the pic on the newspaper website, so it didn't register with me as being the actual gun at issue.

    I assume the same BATFE "logic," then, is that owning (1) a complete 16" AR, (2) a complete registered SBR, and (3) an extra SBR upper is constructive possession, because you have more short uppers than SBR-registered lowers?
     
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    Lucas156

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    Wow this is stupid what is the difference? A rifle a pistol a shotgun? They all do the same thing. Shoot bullets. This is tyranny if I ever saw it. Chiseling away little by little at our 2A rights.
     

    rvb

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    Ah, gotcha -- my mistake. I didn't see the pic on the newspaper website, so it didn't register with me as being the actual gun at issue.

    I assume the same BATHE "logic," then, is that owning (1) a complete 16" AR, (2) a complete registered SBR, and (3) an extra SBR upper is constructive possession, because you have more short uppers than SBR-registered lowers?

    I have always believed your statement is correct. Some disagree but I don't see why you wouldn't spend the extra few bucks on a lower to be safe vs sorry. IMO, every barrel <16" needs a permanent registered home.

    -rvb
     

    WabashMX5

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    Wow this is stupid what is the difference? A rifle a pistol a shotgun? They all do the same thing. Shoot bullets. This is tyranny if I ever saw it. Chiseling away little by little at our 2A rights.

    That chiseling started in 1934, when $200 was a truly confiscatory tax, more than nearly anyone (other than the Capone-types it was meant to disarm -- some things never change!) could afford.

    Now, it's so entrenched that it's taken for granted, despite on its face "infringing" on "the right of the people to keep and bear arms."
     

    CountryBoy19

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    I have always believed your statement is correct. Some disagree but I don't see why you wouldn't spend the extra few bucks on a lower to be safe vs sorry. IMO, every barrel <16" needs a permanent registered home.

    -rvb
    I'll disagree, but I don't know the correct answer. Really, nobody knows the correct answer until a case like this goes to court. Most people agree on 2 different angles of attack with this.

    #1, as long as there is a legal combination that the part can be assembled and there is no evidence of them being assembled illegally you're good to go. example: you have 3 SBR uppers and 1 SBR lower along with some other ARs and stuff (that isn't assembled to the SBR uppers).
    #2 For items found disassembled (uppers disconnected from lowers) they will look at attempting to make any and all legal configurations first, then if any illegal can be made from the leftovers it is illegal. example, you have 3 sbr uppers and 1 sbr lower; also you have 2 16" uppers and 4 lowers. You can assemble 1 legal SBR, 2 legal 16" rifles, and 2 illegal SBR from the leftover parts.

    I personally agree with the first one, but, the ATF won't clarify, and there hasn't yet been a single case to say one way or the other.

    Regarding this case, the arrest and investigation was done by a FL county sheriff's department based on FL state laws (not federal laws). The guy has NOT been charged yet, so it obviously hasn't gone to court. So far the ATF isn't involved in any way shape or form and the general consensus around the NFA community is that they aren't going to get involved (otherwise they already would have). This has led many people to believe that "constructive possession" is purely made-up and the ATF isn't very interested in it unless it pertains to something that obviously has no legal outcome (MG parts when you don't even own any legal MG's).

    There is one case of what some people call "constructive possession" that has been tried (and the person convicted). This happened with a firearm that had some M16 parts installed, and it happened to "double". The owner had lent it to a friend that was the one shooting it when it happened. The friend was not charged, however, the owner, who had priors with firearms laws (I believe it was with a full-blown homemade MG) was charged and convicted and is now serving his sentence (I believe he was convicted of illegally transferring an MG, even though the MG in question wasn't even legal to begin with).

    The difference between these two cases is that the parts were actually installed, the guy had prior issues, and it was MG related, so there was no way the guy could've even had them for legal purposes (which the ATF seems to take a bit more seriously).
     

    buckfever34

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    The BATFE considers this constructive intent.

    You could also get yourself in the same boat if you tried to sell a complete AR with a spare 10.5" barreled upper or tried to sell a Glock with a Vertical grip in the case or possess a 14" shotgun bbl but have no AOW for it to be used on (since we can't have SBS).
     

    Bill of Rights

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    ...There is one case of what some people call "constructive possession" that has been tried (and the person convicted). This happened with a firearm that had some M16 parts installed, and it happened to "double". The owner had lent it to a friend that was the one shooting it when it happened. The friend was not charged, however, the owner, who had priors with firearms laws (I believe it was with a full-blown homemade MG) was charged and convicted and is now serving his sentence (I believe he was convicted of illegally transferring an MG, even though the MG in question wasn't even legal to begin with).

    The difference between these two cases is that the parts were actually installed, the guy had prior issues, and it was MG related, so there was no way the guy could've even had them for legal purposes (which the ATF seems to take a bit more seriously).

    Although there could be another, more sinister case, this sounds very much like you're talking about the Olofson case. Mr. Olofson is a decorated military veteran and was a Nat'l Guardsman (or Reserve, I forget) who had a 20-year-old AR-15 which had a "hammer follow" malfunction, which was discovered on the range when he loaned it to a friend who was considering buying it from him. As I recall, it fired a couple of three-round bursts and because the range had "no auto-fire" regulations, the law was called on the friend.

    There was documentation of the hammer-follow malfunction, but since it was a "tax document", the ATF refused to release it even to the judge (which for any of us would likely get the case thrown out or awarded to the other side, or at the very least, a contempt charge and a night or two in lockup)

    ATF forced Mr. Olofson's front door, raided his home, stealing... oh, excuse me, confiscating the usual.. computer, financial records, etc. I think they also held his family at gunpoint for quite a while before arresting him and leading him off in handcuffs in front of his children.

    Over a malfunction.

    Incidentally, the testing of his firearm was inconclusive, initially, and the ATF investigator reportedly ordered it re-tested with different ammo that was more likely to cause the hammer-follow malfunction.

    It's been a long time since I looked up the details.. The above is as I recall them, so if I'm in error on some point, please let me know.

    Blessings,
    Bill
     

    shooter521

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    It's been a long time since I looked up the details.. The above is as I recall them, so if I'm in error on some point, please let me know.

    I don't know about "in error," but there are certainly many reads on the nature of the case and its outcomes, even within the shooting community.

    Here's a pretty good analysis of the conviction, the appeal and its eventual denial.

    The Olofson Thing

    Analysis of Olofson Appeal Ruling
     

    rvb

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    I agree that multiple uppers for one SBR lower is "legal." I disagree that it's smart given atf track record.... letter of the law tends to get bent when they want to get you for any excuse possible.

    I googled the Kwan case, which is more relavent to this topic. Now prosecutors had it out for him for all kinds of reasons, but he was convicted of having an "extra" stock for a registered FA machine pistol which also fit on a semi-auto pistol, and WAS CONVICTED of having an un-registered SBR due to constructive intent...

    now that was the last I had heard, and it turns out that it was since overturned, which didn't make the news (suprise suprise), but only at massive expense and nearly a month in jail. I'm not sure why it was overturned*... if because of technicality or due to the legality of the "violation," so I'm still not sure if this helps answer the question of if it's legal to have extra parts...

    best synopsys I could find:
    LiveLeak.com - The Long Persecution of Albert Kwok-Leung Kwan is Over (For Now).

    [He] possessed two pistols and two shoulder stocks. One pistol, a Heckler & Koch VP70M, is capable of firing a three-round burst and therefore falls within the legal definition of a "machinegun.”

    The other pistol, a Heckler & Koch VP70Z,1 is a semi-automatic, single-shot weapon, which alone does not constitute a firearm requiring registration...

    Here's where it gets really illustrative of the lengths the government will go to destroy the life of a gun owner who will not bend to their will:

    The two shoulder stocks are interchangeable and can be attached to either pistol. ... When combined with the VP70Z, however, ... the resulting weapon will constitute a single-shot rifle having a barrel of less than 16 inches in length, and will therefore qualify as a firearm requiring registration...

    Even though the stock was not attached to the VP70Z, the government charged Kwan with having a short-barrel rifle and the jury found him guilty

    ...


    After years of harassment, including holding him for 23 days, confiscating his property, ordering him not to possess firearms, forcing him to surrender his passport and to post a $250,000 bond, and spending--exactly how much in legal costs for both sides?--the government simply files a motion to dismiss the indictment?

    so, imo, a new lower (~$250) plus registration ($200) is worth it if you have a "spare" upper/barrel for your AR. And you have the fun of two complete rifles...

    this is all recent, folks, like 2007 time frame.

    -rvb

    *ok, because the defense -wanted- the jury instructions to be to consider that he actually assembled it. so a technicality. and it sets NO precident about actually having to assemble a combination of parts to be illegal, in fact, the opposite, that un-assembled spare parts can = constructive intent.

    -rvb
     
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    RCB

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    Silly regulations, but we ought to feel fortunate that we can even get the $200 tax stamp. Perhaps in a more sane future, where people are universally responsible, we can do away with silly regulations.

    But that day is still in the realm of personal rocket packs to get to work, so... :)

    When I was young, I had found a pistol sized shotgun rusted into who wouldn't have it. I was taking it to show my father when another person I showed it to told me I better dump it into the nearest trash can and summed up why. I took his advise, and later realized the 0 humor factor, even for kids.

    Feds aren't much fun to play with I would imagine.
     

    CountryBoy19

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    Although there could be another, more sinister case, this sounds very much like you're talking about the Olofson case. Mr. Olofson is a decorated military veteran and was a Nat'l Guardsman (or Reserve, I forget) who had a 20-year-old AR-15 which had a "hammer follow" malfunction, which was discovered on the range when he loaned it to a friend who was considering buying it from him. As I recall, it fired a couple of three-round bursts and because the range had "no auto-fire" regulations, the law was called on the friend.

    There was documentation of the hammer-follow malfunction, but since it was a "tax document", the ATF refused to release it even to the judge (which for any of us would likely get the case thrown out or awarded to the other side, or at the very least, a contempt charge and a night or two in lockup)

    ATF forced Mr. Olofson's front door, raided his home, stealing... oh, excuse me, confiscating the usual.. computer, financial records, etc. I think they also held his family at gunpoint for quite a while before arresting him and leading him off in handcuffs in front of his children.

    Over a malfunction.

    Incidentally, the testing of his firearm was inconclusive, initially, and the ATF investigator reportedly ordered it re-tested with different ammo that was more likely to cause the hammer-follow malfunction.

    It's been a long time since I looked up the details.. The above is as I recall them, so if I'm in error on some point, please let me know.

    Blessings,
    Bill
    I believe you're mostly correct. I wasn't saying anything to the contrary. But I do believe that his rifle DID have an M16 hammer and an M16 selector, along with an M16 carrier (which isn't a problem by itself). I realized that is was simply a malfunction, but the ATF jumped at the chance on this and I think in the end it was the presence of those parts that did him in. I didn't read the case and have no facts to back this up though, I read it in a "summary" of the case posted on arfcom I believe. Either way, I'm interested to wait an see if the ATF gets involved with this case, they easily could prosecute him separately from the state of FL if they desired. So I think their reaction should be a telling sign.
     

    alfahornet

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    I believe you're mostly correct. I wasn't saying anything to the contrary. But I do believe that his rifle DID have an M16 hammer and an M16 selector, along with an M16 carrier (which isn't a problem by itself). I realized that is was simply a malfunction, but the ATF jumped at the chance on this and I think in the end it was the presence of those parts that did him in. I didn't read the case and have no facts to back this up though, I read it in a "summary" of the case posted on arfcom I believe. Either way, I'm interested to wait an see if the ATF gets involved with this case, they easily could prosecute him separately from the state of FL if they desired. So I think their reaction should be a telling sign.

    Although I personally absolutely disagree with the Olofson case handling by the ATF, I also think that he should have known better than having that combination of parts in an AR15. As a decorated veteran and I believe even armorer at some point (read that somewhere a long time ago not sure about accuracy) he should have known of the potential of this happening. So, in part he was looking for trouble and got it. But the ATF also abused their power to the extreme. Just my :twocents:.
     

    indykid

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    ATF abuse their power? After all, they were set up as a tax collection agency and by the constitution have no rights to make laws, or rules as they like to bend them. They have no right being judge jury and executioner either, but not many have enough money and a trusted lawyer to attempt to put an end to their abuse of we the people.
     

    Bigum1969

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    There's something wrong with a bunch of reasonably smart people (me excluded, of course), have such a hard time figuring out laws in this country, especially regarding firearms.

    It's also a shame when an upstanding person like Mr. Olofson is treated like a dangerous criminal over at worse is a misunderstanding or a mistake.
     
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