Acting Director Sullivan,
Mr. John R. Spencer
Chief, Firearms Technology Branch
244 Needy Rd.
Martinsburg, WV 25405
August 12, 2008
Dear Mr. Sullivan,
I have not heard from you or the ATF since our last communication. I have attempted several times on behalf of Historic Arms LLC (hereafter the Company) to speak with John Spencer, and left messages for him to call back.
Your letter (3311/2008-642) of July 22, 2008 informs the Company that you were going to proceed with forfeiture proceedings. The Company asked that you proceed without delay.
The Company has not received any notice of proceedings. You have seized Company property without any cause or court order to date. The company firmly demands the return of the firearm in question. The company also firmly stands by it’s finding that the ATF applied testing methods are invalid, therefore FTB classification is also found to be invalid, and not supported by documents issued by ATF or basic common sense.
Furthermore your claims of having rights to seize and forfeit the property is meritless-- please see your own policy:
Title 26 Seizures for ForfeitureMr. Sullivan, even your own staff documents the fact that a “Notice of Manufacture” [ATF form 2] was filed by the Company. There was no attempt to defraud or avoid paying tax. As Mr. Spencer pointed out in his last letter (3311/2008-642) of July 22, 2008, I am a Special Occupational Tax Payer in good standing.
Overview:
There are only two methods of forfeiture under the Internal Revenue Code (Title 26), administrative and civil judicial. These methods are commonly referred to as "code forfeitures" or "Title 26 forfeitures." There is no provision for criminal forfeiture. Only property used, or intended to be used, to violate the Internal Revenue laws can be forfeited. Proceeds of such a violation is not forfeitable. In addition, there are no "tracing" provisions with code forfeitures. Accordingly, the property purchased with proceeds is also not forfeitable.
Authority Granted in 26 USC §7301
Title 26 USC §7301 provides for the forfeiture of taxable property which is in the custody of any person intending it to be sold, removed, concealed, or deposited to defraud the United States of the tax, or is possessed with the intent to avoid payment of the tax. It also provides for the forfeiture of assets used to manufacture, contain, or transport the taxable property that is the object of the fraud or evasion scheme.
Authority Granted in 26 USC §7302
Title 26 USC §7302 provides for the forfeiture of any property used, or intended for use, in violation of the provisions of the Internal Revenue laws or regulations prescribed under such laws. It is the more commonly used statute for a Title 26 forfeiture. The wording of 26 USC §7302 is very broad. Although 26 USC §7302 authorizes the seizure and forfeiture of any property used, or intended to be used to violate any of the Internal Revenue laws, it is not to be used as a substitute to the collection of taxes. Consequently, most Title 26 forfeitures have involved property used to violate the provisions of the wagering tax laws (26 USC §4401, §4411, and §4412), the sale of motor fuels (26 USC §4081 and §4091), and, to a lesser degree, the equipment used in these tax fraud schemes. Forfeiture can also apply to other sections, such as the sale of tires (26 USC §4071).
Therefore please return the property of the Company [the firearm in question] immediately.
Respectfully,
Len Savage
President,
Historic Arms LLC
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Just so we understand the rules:
Crimes and Criminal Procedure - 18 USC Section 983
(B) If the Government does not -
(i) file a complaint for forfeiture or return the property, in accordance with subparagraph (A); or
(ii) before the time for filing a complaint has expired -(I) obtain a criminal indictment containing an allegation that the property is subject to forfeiture; and
(II) take the steps necessary to preserve its right to maintain custody of the property as provided in the applicable criminal forfeiture statute,
the Government shall promptly release the property pursuant to regulations promulgated by the Attorney General, and may not take any further action to effect the civil forfeiture of such property in connection with the underlying offense.
Bluff, consider yourself called. I can just picture them sitting around a table in a conference room not knowing what to do.
ReplyDeleteAlthough, I can also picture them being grossly incompetent or just playing dumb and not doing anything. After all, if nothing happens, they win. If this is the case, Mr. Savage is going to have to do more than write letters and make phone calls.
This is a showdown that BATFECES can not win, and they know it.
ReplyDeleteHence, the reason for the stalling tactics.
It's too bad their feel they need to circle the wagons when their wheels fell a long time ago.
No, they don't know that they can't win. They're probably trying to figure out how to make a felony conviction out of this. Then when Len goes to court, they'll order the exclusion of anything exculpatory.
ReplyDeleteHe'll probably be raided by the FBI HRT on suspicion of cattle rustling, or something.
Good luck, Len.
When the bad guys make the rules, interpret the rules, and enforce the rules, good guys are left without a polite way to respond.
ReplyDeleteLet's see, they won at Waco, they won at Ruby Ridge, they won at Olofson's trial, they won at Fincher's trial. They have no reason to think they can't continue to break the law with impunity and keep winning.
ReplyDeleteSince Sullivan nor any other criminal in the employ of the BATFE hasn't been arrested and jailed and since the USAG has never moved against them, they are pretty sure they can keep winning as long as they choose limited battlefields against outnumbered individuals and do nothing so egregious as to cause physical and severe citizen backlasn.
Further, they are pretty damn sure that there are way too many pragmatists in the American populace for the potential of said backlash to ever be realized.
I think they may just be right.
Hand them their asses.
ReplyDeleteBut Straigharrow has a point. I always thought it was unlawful for government agents to murder mothers while clutching their young ones to their chest. The judicial has since set me straight on this matter twice.
Don't worry, the BATFE is plotting their next move. My guess is that they're trying to find a reason they can get a search warrant on Mr. Savage.
ReplyDeleteDue to loose Federal rules on search warrants, anything they find on any subject in the search can be charged as a crime.
So if say they get a warrant for guns but seize your tax return paperwork and find you've only got $950 of receipts and claimed $1,200 in expenses they'll charge you with tax evasion.
In another memorable gun "accessory" case they rejected the design and the maker appealed the ruling. They got a warrant to search for illegal "Machine guns" and seized everything in his business.
They ended up convicting him on mail fraud. He took some orders and money for the rejected design and never delivered them. Why? Because they seized everything in his business!!
Their theory was he was "selling an illegal item and didn't deliver it either" after their rejection. By seizing everything in his business they crippled him financially and forced him into a plea bargain.
What happened to the original "Illegal machine guns" that got the warrant issued? Nothing like that existed and they knew it. No way that charge had any validity and they knew it but once they got the search warrant it allows them to do a fishing expedition on your whole life till they find a crime to charge you with.
Just recently with Calvary Arms they seized all their stock AND customer's gun in for repair over a dispute on a technical question they had answered before then "changed their mind about" and claimed was a crime now.
They next week after the search and seizure they tried to forfeit all seized stock and sell it off. So they would of financially been wiped out and unable to fight back with no money left for a legal defense.
Like to end up in that position? Mess with the BATFE.
dco777:
ReplyDelete"Plotting there next move"....they always are.
I was present at the case you cited [US v. Wrenn]. I was threatened then by ATF. I was also punished by them post trial just as I am now post US v. Olofson.
Been there got the tee shirt several times. I could run and hide, however:
"Evil only needs good men to do nothing in order to succeed"
I chose to do something, Do You?
Len Savage
Historic Arms LLC