DOBBS: The conviction of a Wisconsin gun owner on federal weapons charges is raising serious questions underlining the constitutional right to bear arms and bringing disproportionate -- the disproportionate weight of the federal government down on one of our citizens? Last night we reported to you on the arrest and trial of Army veteran David Olofson, the father of three, a family man in Wisconsin in a community of 5,500 people.

Tonight we look at what some are calling the questionable methods used by the federal government to pursue the case and to prosecute Mr. Olofson. Bill Tucker has our report.

(BEGIN VIDEOTAPE)

BILL TUCKER, CNN CORRESPONDENT: David Olofson's defense at his trial in January was simple. He had lent his Olympic Arms AR-15 to be used on a firing ranges. The 20 year old gun fired two separate rounds with multiple shots and jammed each time. Olofson's lawyer argued this is a problem in older AR-15s, not a crime. Initial testing by the Bureau of Alcohol, Tobacco, Firearms and Explosives agreed. BRIAN FAHL, FEDERAL DEFENDER SVCS. OF WISC.: The field agent for ATF didn't like that. Go test it again and use this different ammunition, which is easier to cause multiple firings if you have a malfunction.

TUCKER: A gun maker and an expert witness for the defense is critical of ATF's testing procedures.

LEN SAVAGE, HISTORIC ARMS LLC: The problem is they don't have any written firearm testing standards. They decide the testing criteria on a case-by-case basis.

TUCKER: The ATF did find a malfunction. It's called a hammer follow and it can cause a semiautomatic weapon to fire multiple rounds, just like it did in this semiautomatic test of a different gun fired by this ATF agent.

It was enough to convince a jury to find Olofson guilty on the charge, transferring a machine gun. But the malfunction can also cause other problems, some of which can cause the gun to explode, a simple enough argument for fixing it, argue gun owners.

What no one can or will explain is why the government brought the full power of the federal authorities down on Olofson, an honorably discharged Army veteran, a man who was serving in the Army Reserves at the time of his conviction, a man who still believes he will be cleared.

DAVID OLOFSON, CONVICTED GUN OWNER: I still have confidence that the legal system will work. We're not done with it yet. The process still has a couple more steps to go through. As far as my opinions of how things have been handled up to this point, we'll have to wait before I can give you those.

TUCKER: There are efforts underway in the Congress to correct the testing irregularities pointed out by the defense. The bill as known as the Fairness in Firearms Testing Act or HR-1791. It would require all firearm testing and examinations be videoed by the ATF.

(END VIDEOTAPE)

TUCKER (on-camera): Now, LOU DOBBS TONIGHT contacted the Bureau of Alcohol, Tobacco, Firearms and Explosives who declined comment on the case, noting that it is still pending until Olofson is sentenced. Likewise, the attorney's office in Milwaukee also declined comment.

Olofson's sentencing is set for May 15. He's facing somewhere between 18 months and just over six years in prison along with a possible fine of $250,000. And Lou, just a few moments ago I did spoke with the ATF agents again. They just say simply on the record they stand by their prosecution of Olofson, noting that they did prevail in court with a jury in finding the conviction.

DOBBS: We've heard that before, unfortunately, and as much respect and regard we have for the agents of ATF, someone, whether it's a U.S. attorney in Wisconsin, whether it is the senior levels of ATF, it seems, has made a completely disproportionate judgment on prosecution here. This makes no sense on any level that we have been able to find.

TUCKER: No. It would be one thing if they could point to something and say, look at this. And they ...

DOBBS: Well, we're going to look at this and continue to look at this. We'll be talking with the National Rifle Association next week. We'll be talking about with the congressional delegation of Wisconsin about this and the U.S. senators of Wisconsin about this and see what in the world is going on. It might not be happening to a citizen in 2008 and it should in any year not happen to a citizen in the United States of America. Bill Tucker, thank you.

PRESS RELEASE May 14, 2008
BERLIN MAN SENTENCED TO 30 MONTHS IN FEDERAL PRISON FOR
TRANSFERRING MACHINE GUN

United States Attorney Steven M. Biskupic and ATF Special Agent in Charge Bernard Zapor, announced that yesterday, David Olofson, Berlin, WI, was sentenced by the Honorable Charles N. Clevert, United States District Court Judge. Judge Clevert sentenced Olofson to 30 months in federal prison for knowingly transferring a machine gun. Olofson was also ordered to serve two years of supervised release upon release from prison and perform community service during that post-imprisonment supervision.

“Today’s sentence is a victory for legal gun owners,” said ATF Special Agent Zapor. “Multitudes of Americans legally possess and transfer machine guns. They have the concurrence of the chief law enforcement officer in their States and have met all other requirements that are part of the National Firearms Act that was created by Congress in 1933 and has changed little since. A blatant disregard of our Nation's firearms laws by someone claiming to be a ‘sovereign’ and not subject to federal gun laws is offensive to responsible gun owners,” said ATF SA Zapor.

The case stemmed from citizen reports of machine gun fire at a Conservation Club in Berlin, WI in July 2006. Local police found a firearms customer of Olofson’s at the Club, and learned Olofson had lent the machine gun to the customer. According to trial testimony, Olofson had acknowledged to the customer that he (Olofson) had fired the gun automatically in the past. ATF was contacted, and they later interviewed Olofson, who acknowledged lending the gun to the customer. Olofson told agents that he regularly loaned guns to people, but did not keep records because it would “be dangerous.”

Olofson acknowledged to agents that he knew how to convert semi-automatic rifles to machine guns, and agents later found conversion information and instructions on Olofson’s computers. Agents also found e-mail exchanges with third parties on Olofson’s computer wherein Olofson discussed machine guns and ways to avoid federal registration requirements for automatic weapons.

During the sentencing, the judge rejected the defense contention that the gun had merely malfunctioned and was not a machine gun, instead finding that Olofson knew the gun was a machine gun. The Court found that Olofson’s military service and the other evidence in the case suggested he was “incredibly familiar” with firearms, and rejected Olofson’s contention that he was unaware of the gun’s capability to fire automatically. “Mr. Olofson has, in this court’s view, shown he was ignoring the law and that he was doing so in part for financial gain.”

The Court also relied, in imposing the 30-month prison sentence, on prior convictions Olofson sustained, including one involving the carrying a concealed, loaded firearm during trick or treating with his children. “You don’t put kids at risk on Halloween, and then deserve the label of ‘good citizen’ who always follows the law,” Judge Clevert commented.

The case was investigated by the Berlin Police Department, and the Bureau of Alcohol, Tobacco, Firearms and Explosives, and was prosecuted by Assistant United States Attorney Gregory Haanstad.

According to trial testimony, Olofson had acknowledged to the customer that he (Olofson) had fired the gun automatically in the past. .

The Court also relied, in imposing the 30-month prison sentence, on prior convictions Olofson sustained, including one involving the carrying a concealed, loaded firearm during trick or treating with his children. “You don’t put kids at risk on Halloween, and then deserve the label of ‘good citizen’ who always follows the law,” Judge Clevert commented.

Ok. On to the sentencing phase. Judge commented on the following things.
My knowledge of the different jurisdictions we have sovereignty. Knowledge of weapons and military training that make me particularly dangerous. Claims I knew the weapon was a MG as per testimony, even though the testimony was recanted and the only statement from me to the local Pd was I know what a MG is and that is not it. Claimed I have ties to vigilantly militia groups. Points to a email between me and the minute men discussing stopping down and helping out someday as proof of the allegation. Points to pdf manual of conversions as proof I somehow meant this to happen. (Thought this was about a malfunctioning gun?) As addition proof I meant this to happen says I wanted Mr. Kerniki to shoot it as an auto, why else would I give him 100 rounds every 2 weeks. Adds that I admit knowledge of FA to the LEO’s. Leaves out the part where I added I don’t have the skill for machining. Talks about a CCW case that was tossed after I produced a video of the gun in the open and a 911 tape with the caller saying it was open carry. Said it didn’t matter if the charge was dropped and that it was openly carried (legal in WI), anyone who carries a gun in public is endangering public safety (LEO anyone?). Especially if children are around. Points to a mystery document supposedly a letter of reprimand from the army. No proof of service was included with this document. ATF says they did not get it from the Army, but found it in the data on one of the hard drives taken. Document claims I destroyed data on military computers, sold or transferred military data to outside militia or terrorist groups, and was AWOL. I have JAG looking into this BS now. Will know more later. Interesting to note this happened at the same time I received an Honorable discharge and AAM for maintaining Army computers and improving unit data processing. Not sure how I can supposedly be doing both things at the same time, but I will find out. Brings up the giving of ammunition is evidence of some kind of illicit profit making on my part somewhere and that I must have been ignoring the law somewhere to do that. Claims all of the above is proof of less than honorable service in the military and willful disregard of the law. Goes over cases showing people who had real MG’s on a first offence and were either given 12 months probation of let off with a deferred prosecution agreement. Says just because it’s done doesn’t mean it should be done in this case, and that an example must be set to deture others from committing the same crime.

The Court also relied, in imposing the 30-month prison sentence, on prior convictions Olofson sustained, including one involving the carrying a concealed, loaded firearm during trick or treating with his children. “You don’t put kids at risk on Halloween, and then deserve the label of ‘good citizen’ who always follows the law,” Judge Clevert commented.