Friesen Volume4

1 2 3 4 5
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA
UNITED STATES OF AMERICA, Plaintiff,
6 7
vs. LARRY DOUGLAS FRIESEN,
8 9 10 11 12 13 14 15 16 17 Defendant.
) ) ) ) ) ) ) ) ) ) )
Case No. CR-08-41-L
TRANSCRIPT OF JURY TRIAL VOLUME IV HAD ON SEPTEMBER 22, 2008 BEFORE THE HONORABLE TIM LEONARD, U.S. DISTRICT JUDGE, PRESIDING
A P P E A R A N C E S 18 19 20 21 22 23 24 25 B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603 Mr. Edward Kumiega, U.S. Attorney's Office, 210 West Park Avenue, Suite 400, Oklahoma City, OK 73102, appearing for the United States of America Mr. Mack Martin and Ms. Kendall Sykes, Martin Law Office, 125 Park Avenue, Fifth Floor, Oklahoma City, OK 73102, appearing on behalf of the defendant
546 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603 GRANT KEMMERER Direct Examination ........................672 Cross-Examination .........................682 Redirect Examination ......................692 MIKE DAVENENPORT Direct Examination ........................699 Cross-Examination .........................708 Redirect Examination ......................715 Recross-Examination by ....................719 JULIE WHITE Direct Examination ........................723 Cross-Examination .........................729 ELIZABETH GILLIS Direct Examination ........................733 Cross-Examination .........................739 Redirect Examination ......................743 Recross-Examination by ....................745 Redirect Examination ......................745 LENNIS SAVAGE Redirect Examination ......................651 Recross-Examination by ....................662 CHARLES ERB Direct Examination ........................556 Cross-Examination .........................592 WITNESS I N D E X PAGE
547 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 (The following was had in chambers on September 22nd, 2008. For prior transcription, see Volumes I through III of
this transcript.) THE COURT: Well, I understand instead of solving
problems we've got new ones. MR. KUMIEGA: THE COURT: MR. KUMIEGA: Yes, sir.
What are they? On Friday Mr. Savage, the expert witness
for Mr. Friesen regarding the firearm, examined the gun as we all agreed at the ATF office in the interrogation room on Friday after the conclusion of trial, and we believe there's a problem in what he did with the firearm. after pictures of the firearm, Judge. number. These are before and
Specifically, the serial And then we
That's the serial number in question.
have this long scratch across the face of the serial number. And I just want to bring it to the Court's attention as an officer of the Court that that in fact occurred, and -THE COURT: MR. KUMIEGA: How did it occur? My understanding it's on videotape.
Apparently what Mr. Savage did was he took a caliper and scratched across the serial number. MR. MARTIN: I think he was measuring. That's what it
is, your Honor, that's the caliper. measuring the firearm, Judge.
That's the, I guess he was
But if I might respond, Judge,
on that exhibit that you have, this scratch up here and this B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
548 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 side? scratch down here weren't on the gun when it was seized. the testing process those got made. made. In
This scratch now has been
I think it's appropriate for an instruction to the jury
that in the testing and examination process the gun has been altered, but I don't think you can put blame on either side because they scratched things off of it too that weren't scratched off of it before from the original. I can get a copy
of the original, Judge, that would show what it looked like when it was seized in June, and it doesn't look like the original copy either, but -MR. KUMIEGA: In fairness, your Honor, the reason part
of the paint is taken off is to show there is only one coat of paint on that firearm. THE COURT: Is that -MR. MARTIN: MR. KUMIEGA: Upper right, Judge. This and this (indicating). These are On the deep scratch to the lower left-hand
paint samples taken from the serial number.
For the life of me
I can't think of any scientific reason why anyone would scratch the E683 number, and that's ground zero of the case, why somebody would actually do that. And I guess Mr. Savage needs
to tell the Court why, but I don't understand that. THE COURT: this happened. scratch it. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603 Well, I would like to hear from him how
The caliper, I don't understand how that would
549 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. MARTIN: here now. MR. KUMIEGA: MR. MARTIN: MR. KUMIEGA: MR. MARTIN: He's here. Is he here? Yes. All I know, he was measuring. If you All I know, and he's not -- he may be
want I can bring him in here. THE COURT: What else?
I've not talked to him about it. What do you want to do? I'm thinking maybe --
MR. KUMIEGA:
I don't know.
since the guns are going to be displayed today maybe there should be some kind of instruction from the Court that there have been alterations. THE COURT: MR. KUMIEGA: not cause them. From when they saw it last. Yes. And obviously the government did
I mean, that's my -- my problem is I don't
want to say that the United States is altering the evidence. THE COURT: MR. MARTIN: THE COURT: some other problem. MR. KUMIEGA: As to the impeachment. When Mr. Erb What's the other problem? I'm sorry? There was -- Jamie mentioned there was
takes the stand, your Honor, from all the documents that were turned over to Mr. Martin, my understanding is what Mr. Martin is going to be, is going to do vigorous cross-examination regarding some of the compliance requirements that Mr. Erb B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
550 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 failed to do. A couple of things. One, there's a deferred
sentence that Mr. Erb had for possession of a stolen truck around that time and there is no judicial consequence of that. He lived down the deferred sentence just like Mr. Friesen. Also we've -- or he got it expunged, but I think it's over. Second deal is that there is notation of him being investigated for smuggling a machine gun from Canada to the United States. And that was purely investigation and there was no, what it was it was a mistake probably is the way Mr. Erb explained it to me. And there is no consequences of that. All the other
licensing problems that Mr. -- that my understanding Mr. Martin may go into occurred ten years after the 1986 manufacture of the firearms. And that might be out of, out of a time limit
and certainly might not be probative anymore regarding his activities vis-a-vis manufacturing the machine guns. I don't
think it would be fair to go through the whole compliance administrative activity with ATF. I think hopefully the Court
can think about limiting the relevant time frame to that. THE COURT: How many of these violations were there? Excuse me?
MR. KUMIEGA: THE COURT:
How many violations were there? I don't think-- not many. I think
MR. KUMIEGA:
there's a series of correspondence going back and forth, and I think Mr. Martin can explain it to the Court better than I can. MR. MARTIN: Fifty, 60, 25 -- let me start out with
B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
551 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 some. THE COURT: It would seem to me that's all relevant. this: I told Ed last night I was not going to do the deferred, I told Ed last night I wouldn't go There's the
so that's off the table.
into the Canadian smuggling, that's off the table.
compliance issues, Judge, intermingled in all of this are these guns that were manufactured in April and May of 1986. There's,
you know, like the '95 inspection they find a tube that's E689, for example. That's on your chart as one of the birthing
documents, my birthing documents and his birthing documents. They didn't find it until 1995, but he made it in '86, which is the whole crux of this. The records of his, Judge, are replete
with duplicitous serial numbers, which is what we've claimed all along, 15 or 20 unregistered firearms where he has tubes that are cut out that are just sitting there, firearms that are, you know, the tubes are too long which would make it look like an MKIII versus an MKII, but it's cut out like an MKII, like Mr. Friesen's gun is. MS. SYKES: MR. MARTIN: Improper placement of serial numbers. Right. I can't remember them, there are
But the other is off the table? MR. MARTIN: THE COURT: investigation. It's off the table. As would be the deferred sentence and the
But I think these other violations all sound
somewhat relevant to the case at hand. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
552 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 please. (Witness sworn) THE COURT: Mr. Savage, it appears that the parties Why don't you get -- real quickly see if, what's your expert's name? MR. MARTIN: Mr. Savage. Do you want me to go grab
him and bring him back here, Judge? THE COURT: Yes.
(Mr. Savage was brought into chambers.) MR. MARTIN: THE COURT: Judge, this is Mr. Savage. Raise your right hand and be sworn,
have presented me evidence that shows that in your inspection of this gun that's in issue in this case that somehow there's a scratch that in your examination had appeared across the serial number. Can you explain how that occurred? THE WITNESS: I was measuring the outside diameter of
the receiver, and the paint is so brittle it came off there. It came off when Agent Knopp was scratching off evidence tape on the rear of gun too. All I did is measure it, no impacting,
just measuring with a micrometer like in that picture over there. THE COURT: MR. KUMIEGA: Any questions? Yes. Mr. Savage, you're telling the
Court that you used a sharp pointed micrometer to measure the serial number? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
553 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE WITNESS: MR. KUMIEGA: Can I see the picture? Because this is the before, and this is
the after, and here is, my understanding this is the scratch that you put on that serial number. THE WITNESS: This line right here, I was measuring -I
I measured it here, here, here, here, and here (indicating). didn't use the sharp pointy part because the diameter of the tube there, there's a flat anvil that goes through and it measures within a half of one-thousandth of an inch, it was just the placement and getting a reading.
It's got a thumbnail
right here and you close the anvil, just doing that was taking off paint. MR. KUMIEGA: Well, the point is taking off paint, but
you -- for what reason would you go across this? THE WITNESS: I did was measure it. MR. KUMIEGA: THE WITNESS: MR. KUMIEGA: THE WITNESS: So you're saying you measured this? From -But you did it with a long -I measured it actually from one end of I didn't. I did not scrape the gun, all
the tube to the other, but specifically I was measuring the tube here, and I measured this, just kept, just kept so I could see if there was any deviation in the measurement of the tube. MR. KUMIEGA: But there is no scientific reason you
went across this and you scraped off paint; is that what you're B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
554 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 here. telling the Court? THE WITNESS: It was inadvertent. My reason as to why
I would have to, that has to do between me and counsel. MR. KUMIEGA: Well, I can believe, your Honor, but
just seems very odd that you could go across the whole number with one of these calipers that have a sharp point. THE WITNESS: MR. KUMIEGA: THE WITNESS: I did not use -Tell the Court what you did. This anvil here, it's not sharp here and But
I can show the Court the tool, that's no problem.
this is flat, there is no sharp edge on it. THE COURT: You don't have the tool with you? I can have it here after lunch. Okay. If he'll step out I'll explain
THE WITNESS: THE COURT: THE WITNESS: specifically. MR. MARTIN:
Judge, I don't think, it occurred, we
can't correct it, and it's un -- I think it's appropriate the jury get an instruction that the gun has been changed from what it looked like in June to before what it looked like at trial, and it's changed again due to examination and testing process. I don't know, we can explain our theory in camera to you if we need to. But -THE COURT: afternoon. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603 Why don't you bring the tool this
555 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Who are your witnesses? MR. KUMIEGA: Charles Erb, Grant Kemmerer, a person
who received the gun from a person in Chicago, and then Michael Davenport who got it from Kemmerer. THE COURT: But we're starting with Erb? Yes, sir. Well, I think I'll give them some
Okay.
preliminary instructions, because -- I'll give them a preliminary instruction what's happened. If you can bring that
instrument this afternoon, and you can call the jury. MR. MARTIN: May I ask a question before you leave
about Thursday, Friday scheduling? THE COURT: MR. MARTIN: I'm out of town. That's what I wanted to make sure. I got
the impression from your comments Friday that we might be here Friday, so I -THE COURT: We won't be here Thursday or Friday. So
if we don't finish we're going over to next Monday. MR. MARTIN: That helps me, at least I know what I've
got to do with my other things. THE COURT: Okay. Call the jury.
(The following was had in open court with the jury present:) THE COURT: Case Number CR-2008-41-L, United States of Are the parties ready to
America versus Larry Douglas Friesen.
Erb - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. BY MR. KUMIEGA: Q. A. weekend? Mr. Kumiega, you may call your first witness. MR. KUMIEGA: Yes, your Honor. The United States ready. MR. MARTIN: THE COURT: The defendant is ready, your Honor. Good morning. Everybody enjoy the proceed? MR. KUMIEGA: Yes, your Honor. United States is
556
would like to call Charles Erb. (Witness sworn) CHARLES ERB, called as a witness, having been duly sworn to tell the truth, the whole truth and nothing but the truth, testified as follows: DIRECT EXAMINATION
Mr. Erb, can you introduce yourself to the jury, please? My name is Charles Erb, and I've been a resident of
Pennsylvania -- today is the 63rd year that the earth has made a trip around the sun. I'm 63 today. And in 1979, I started
into the NFA firearms business. THE COURT: Excuse me just a second, Mr. Erb. Could
you move back from the microphone a little bit? THE WITNESS: (By Mr. Kumiega) I can do that. So happy birthday. You said that you
Erb - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
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started in the NFA firearms business in 1979, is that what you said? A. Q. Yes, sir. What type of business were you in when you started being
into it in 1979? A. I was a design engineer, mechanical engineer and diemaker I worked for a corporation. And did you then start your own business in
before that. Q. '79? A.
All right.
In '79 I was -- well, before '79 I was doing a lot of
antique restoration on antique firearms for museums and other collectors. income. That's always been my hobby, interest, secondary
In 1980, I secured a license from the federal
government, and it's a federal manufacturer's license that allowed me to work on any firearm, firearm, not destructive devices, just firearms. And NFA firearms are firearms that are
covered by the National Firearms Act, and I worked for museums and collectors mostly, is my business. Q. So you initially started as restoring firearms, and then
it migrated back to actually building firearms; is that correct? A. Yes. I have worked with some restoration groups, built They were restoring a lot of the World War II So there was a need, there was a
aircraft guns.
and World War I aircraft. niche.
So I wanted to do something, and it was fun, and was
Erb - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 enjoyable. Something I really liked doing.
558 So if you enjoy
doing something it's not work anymore.
So I restored a lot of
firearms for a lot of various people around the country. Q. All right. Then started building them in '79; is that
correct? A. No. In 1980. My license took effect in 1980, I started
building firearms, and most of them were NFA firearms. Q. Can you tell the jury the type of firearms you started
making in 1980, and particularly in 1986, what type of firearms did you manufacture, please? A. Well, being an avid World War I fan, I liked the U.S. and
German and French and Russian and Italian, all the arms that the axis and allied powers in the first world war used. And
there were many of them in the country that were brought into the country by veterans. And the government, U.S. government
would even bring them into the country and give them to people who would purchase war bonds. If you purchased war bonds you
could get a German trench gun, and they would them give them to you, although they were all deactivated. pretty bad condition. Some of them were in
And at the time collectors became very And there was a big trend to build And the
much interested in them.
museums and put a lot of this stuff in museums.
museums wanted prime examples, so I restored the jackets on them and restored the guns and made them look presentable for a museum exhibition. And there were a lot of collectors,
Erb - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 shooters that enjoyed shooting. Q. Well, let me ask you this:
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At a certain time then your
business becomes quite lucrative; is that correct? A. Up and to -- yes, it was paying the bills. I raised
three children and -Q. A. Q. All right. -- enjoyed doing it. Let me ask you this: You had a shop, is it in
Fredricksburg? A. Q. A. Q. A. Q. A. Q. Fredricktown, Pennsylvania. Fredricktown, Pennsylvania. A small shop. And where is that located? I'm about 50 miles south of the city of Pittsburg. All right. Since 1975. And is that the shop you were manufacturing these How long have you had that shop?
automatic weapons? A. Q. A. Yes, sir. What other type of weapons did you make, Mr. Erb, please? As far as models? At the time there were a lot of
surplus parts on the market, and a lot of parts are being brought in from Europe and even countries as far away as Australia. Switzerland disposed of all their firearms and, of There were no
course, the parts slowly filtered into the U.S.
Erb - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. receivers, you couldn't bring a firearm receiver into the country. Q. All right. Let me ask you this:
560
Tell the jury what a
receiver is and what's the importance of a receiver, please? A. The receiver was the registered entity of the firearm.
It was the part of the firearm that had the serial number on it. And the government determined that it housed the main If it was an aircraft
operating components of the firearm.
gun, if it was a Browning gun, it was just a box, it was a steel box that was riveted together. operating parts, all the mechanism. Q. A. All right. And that was the prohibited part that you could not And it housed all the
import, you could not bring those into the country. Q. All right. So the tube is in fact the firearm; is that
correct? A. Yes. In some cases it would be a cylindrical tube. The
British and the German both used a tube.
The Russians were a But
little more sophisticated, they stamped their receivers. basically even the Italians utilized a round receiver.
It was
easy, ease of manufacture, tubing was readily available. MR. KUMIEGA: Your Honor, may I approach the witness
with Government's Exhibit No. 8? THE COURT: Yes. Mr. Erb, this is Government's Exhibit
(By Mr. Kumiega)
Erb - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 No. 8.
561
Can you identify this for the jury and tell us what it
is, please? A. This is one of my very basic World War II productions, Shepherd and Turpin in the late
and it is a Sten Mark II.
1930s designed this gun, could be very simple, easily manufactured for their soldiers, British soldiers. were manufactured at the Enfield Works. And they
So the name was given
to it S-T-E-N, so if you hear of the Sten -- excuse me -- it is a Shepherd and Turpin manufactured firearm in Enfield Works in England, in Birmingham. Q. A. So it's a combination of the -It's an acronym. Is acronym the correct term? So it
became the Sten gun.
The British made them at the time they
were in the great struggle, and, of course, the battle of Britain was raging, the Germans had already been in Checkoslovakia and Poland and were looking to overrun the rest of Europe. The British made the Sten gun in great quantities It was a small submachine gun
and they were easily dismantled.
that shot a pistol cartridge, and they would airdrop these to various resistance forces in France, Checkoslovakia, in Poland, and the resistance forces would utilize these firearms because they could be easily assembled by practically anyone, and they were arming people. So there were a lot of these parts available and were coming into the country, so why not make some. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Erb - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Let me ask you this:
562
The parts that were coming into the
United States were not the tubes, but -A. Absolutely not. It was just the components, the barrels
and the bolts and the operating mechanisms. Q. So Exhibit No. 8 is not what came into the United States;
is that correct? A. Q. A. Q. Absolutely not. You manufactured that; is that correct? Yes, sir. And did you put a serial number on that tube, that
machine gun? A. Q. Yes, I did. All right. Can you show the jury where that serial
number is, please? A. Okay. The cocking slot is here (indicating), the serial
number would be on the left side, the left rear side of the receiver tube. Q. All right. Let me ask you this, Mr. Erb: Was there some
type of template you used to manufacture that tube? A. I used a vertical milling machine and I set parameters
and stops on it, and I had a guide, a tube, a mandrel that actually fit into it, and a detent that would index the tube. So the operator would just utilize the machine and that would make all the various cuts that were required to make this an operating piece. You could readily assemble it from that
Erb - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 point. Q. A. Let me ask you this: How many cuts are on that tube?
563
There's an ejection port, and entry port, there's a
cocking slot, there's a seer slot, plus the two locking slots. It required one, two, three, four, five, six, plus the magazine radius cut, which would make it number seven on this particular piece. Q. The size of the tube, is that also, is that important for
a Sten? A. Yes. The British made them, they were -- they used
tubing that was 1.625 inches in diameter, and usually had a 16-gage wall, and a 16-gage could vary from 58-thousandths to 64 thousandths in wall thickness. This fit the parameters that
were required for the parts to fit on here and function properly. Q. All right. So the sides of that tube indicates to me,
what type of gun are you manufacturing with Government's Exhibit No. 8? A. Q. It was the British Sten Mark II. Okay. Can you tell the jury the difference between the
size of the tube or receiver versus a Sten Mark III? A. Well, the British found that they could produce these
little, they called them tin tommy guns at the onset of World War II. When the GIs saw what the British were using, they The British went ahead and would stamp the
made fun of them.
Erb - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 receivers out of a flat piece of sheet metal.
564 And they would
-- it had all the cuts, in other words, the ports were already stamped, the cocking slot would be stamped in a Mark III, and they would roll this flat piece of sheet metal around a mandrel. So they would take it from being round, or from flat, And it had a seam across the top
excuse me, to a round tube.
of it, across the very top that served as an aiming device for the soldier, and it was resistance-welded all the way down its length. They are very unusual looking and they are very much
longer than the Mark IIs. Q. All right. So the tube for a Mark III is, like you said,
much longer than the tube in a Mark II? A. Q. Yes, sir. Okay. Significantly longer.
Now, this is definitely your handiwork; is that
correct? A. Q. Yes, sir. And how many ways can you tell, sir, that you are sure
that's your device? A. Well, it's a piece of seamless mechanical tubing, even And of course, this would There's a
the heat numbers are still on it.
get buffed off or blasted off if it were phosphated. little mark on it that says "Erb" on it. my serial numbers. I made the dies.
I can tell these are I
I'm an old toolmaker.
even brought some of the dies along, you can look at the dies and see the shape and the size and the style of the characters. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Erb - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q.
565
There were probably four or five different sets of numbers that I used with variations in them that I used over the years. wore them out, thew them away, made new ones. Q. Now, did you use the same size of dies during your career I
in making Sten Mark II machine guns? A. They varied slightly in size. They went anywhere from So
95-thousandths to probably 240- 250-thousandths in height. they were no longer than the largest set that I brought. Q. Okay. Sir -Your Honor, if I may approach the
MR. KUMIEGA:
witness and grab those dies, mark them and give them to defense counsel. THE COURT: Yes. Now, back in 1986, you were
(By Mr. Kumiega)
manufacturing a boatload of tubes; is that correct? A. Q. A. Yes, sir. Can you tell the jury why, please? Well, we have a very left-wing liberal contingent of
Congressmen in this country who are always looking out for the citizens -- excuse me -- and for a firearm that produced, registered NFA firearms, as the ATF will tell you, account for hardly any, if any crime. But Congressmen Rangel out of New
York, Chucky Schumer out of New York, and Teddy Kennedy had put their heads together and they attached a rider on a firearm owner's protection act that would virtually eliminate any U.S. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Erb - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
566
manufacturer for producing an NFA firearm that could be sold to the civilians. Q. My understanding is, if we could cut to the chase, is
that May, excuse me, May of 1986, there was -- you couldn't make any more machine guns; is that correct? A. Well, the bill, I think the bill hit the floor, went
through the House, went through the Senate, and come January, February, we knew that President Reagan was going to be forced to sign the bill. Q. The bill had so many good facets in it.
But the bottom line is by a certain cutoff date you
couldn't make any more machine guns domestically unless it was for law enforcement or military? A. Q. Yes, sir. Right. We had no idea when the date would be.
But you found out later when the date would be;
is that right? A. Q. A. Q. I did not know when President Reagan would sign the bill. Right. But he did sign the bill?
May 19th of 1986 it was signed. And that was basically a time when you were going to
produce something prior to the law being enacted; is that correct? A. Q. A. Yes, sir. Tell the jury about that. Well, up until that time we worked day and night. I was
basically going to be -- I was the automobile maker that the B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
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567
government said you can't make any more of these automobiles, Charles, so you make as many automobiles as you possibly could in the time they were going to shut it down. So naturally, I
employed a great number of people, spent a lot of my money that I had, and produced as many receivers for these NFA firearms that I possibly could. This would be my future. I wanted my
kids to go to college and I wanted to keep my business going. Q. As to Exhibit No. 8, the tube in front of you, can you
tell the jury how much that tube was worth back in '86 and what it's worth today, please? A. In '86 was a 75 to $100 receiver, if that. And it may
have brought $50 then prior to '86. Q. A. What's it worth now? Today, completed, registered, Sten guns, transferable, in
other words, they can be transferred on a $200 transfer tax, this gun would bring 3,500 to $5,000. Q. All right. Now, you're telling the jury then there's a
deadline, you're manufacturing tubes such as the tube in front you; is that correct? A. Q. Yes, sir. Now, would you tell the jury the process you would do to
affix serial numbers to identify each of the tube, or receiver or machine gun, please? A. Again, in any manufacturing process, you have people
working, people doing the necessary mechanical things to the B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Erb - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 piece of material we're using to make it useable. And then
568
when it was completed, we had a serial number bench, and I had a fellow that was helping me. As a matter of fact, he was a
dentist who saw what was happening and realized what was happening, and he sat, took time off his office, blew his patients off, didn't book any -- had his secretary not book any patients and came and helped me. He was my serial number man, And we did it
and he would serial number each and every tube. in consecutive numbers.
I stamped an E on the front of the
tube because I could recognize it as being a Charles Erb receiver, and then we would put the number, and there was a small proof put on it, my last name and had an empirical crown, something unusual that I made. And then later before we would
ship it out we would mark it a little bit, mark it with my address. Q. Let me ask you this: Did you use the same type of dies
for each of the firearms that you put into the stream of commerce? A. The dies were similar. They varied somewhat because I
went to the point where we were also numbering MP40 receivers, we were numbering Maxim receivers, Browning receivers, and the guys in the shop were utilizing several different sets. sets got mixed up, moved around. consistent. Q. All right. Let me ask you this, Mr. Erb: Was that gun The
We tried to keep the size
Erb - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. or were those tubes coated or painted when you shipped them out? A.
569
Most of them were in the raw, as you see them, unless the
customer would have requested it to be either phosphated or manganese dioxide coated, which would protect it. Q. The tube in front of you, is there a coat on it? Is
there paint on that? A. Q. that? A. Back then we didn't have CNC vertical milling machines. No, sir. It's an industrial mill finish. How long does it take to make a tube like
All right.
I had two just manual machines set up with a stop on them. Half an hour, 40 minutes. Q. All right. And you used consistently the same template
to make those tubes; is that correct? A. Yes, sir. It was the same. It couldn't vary, the parts
wouldn't fit. Q.
They wouldn't function. Let me show you Government's Exhibit No. 6.0
All right.
and 7.0. MR. KUMIEGA: THE COURT: Your Honor, may I approach? Yes. Mr. Erb, the first gun is Government's
(By Mr. Kumiega)
Exhibit No. 6, and the second is Government's Exhibit No. 7. Can you examine those weapons, please? A. I don't know which exhibit is which. Let me see.
Erb - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. A. Q. A. That's number 6? This would be number 6. Then look at number 7, please. This is one of my receivers, and a gun that I built. Look at number 7 too, please. Okay. This gun is a -- one of my receivers.
570
I usually
phosphated them before they went out.
This one was painted.
This would have been assembled by a secondary manufacturer. Q. Now, are you talking about Government's Exhibit No. 6 or
No. 7? A. Q. A. Q. The black gun, serial number E685. That's number 7? Yes, sir. Let's talk about number 6 first. How many ways can you
tell the jury that you know that gun is yours, the automatic weapon, Government's Exhibit No. 6? A. Well, it has my serial number, has an E serial number,
it's a very small case Roman E on it, serial number stamped up near the top. I suspect that my manufacturer's proof and my Usually they are on the left side here. All the welds have been Someone saw fit to polish
name was polished out.
The gun has been heavily polished. polished, they have polished welds. these welds. Q. A. All right.
In so doing they polished the tube, took a lot of the B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Erb - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 markings off of it, the markings are faint. But they -- at
571
least they left the serial number intact on top, which it's small. These are 95-thousandths height numbers. The E
character is perhaps an eighth of an inch maybe 125-thousandths in height, but these are my number dies. Q. A. Q. You're positive that's your number dies? Yes, sir. Let me ask you this: The length of that tube, is that
consistent with the raw tube in front you? A. It's consistent. I'm butting this up here. In the front
there's a collar that was attached, and the collar held the barrel threads. Q. Both tubes are exactly the same length. If you can read that
Look at Government's Exhibit No. 7.
serial number into the record and tell the jury how do you know that's your firearm? A. Q. Number 7 is my firearm, and it is E685. Okay. How do you know, sir, that's your gun, your
automatic weapon? A. Again, it's seamless mechanical tubing. The length is
correct, the length is correct between the original receiver and the assembled firearm. someone else. Again, this was assembled by I
All mine were phosphated when they went out.
never painted them. Q. When you say assembled by someone else, you just
manufactured the raw tubes? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Erb - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. Yes, sir.
572
And then all the add-ons, the triggers, the barrel, the
magazine housings were added on by somebody else? A. This receiver was sold to someone else, and I'm noticing It's
that it was never blasted, beadblasted or sandblasted. been polished a little.
Welds are consistent, but I don't
believe this is a firearm that I assembled, number one, because it's not phosphated. Exhibit No. -Q. A. Six? I guess this is 6 here with the sticker on it. But It would have a phosphate finish as
again, both receivers are my receivers and they are consistent with the receiver that we have for an exhibit here, which was Exhibit 8. Q. All right. Let me ask you this: The serial numbers on
682 and 685, are they the same, used the same dies in the manufacturing process by looking at those numbers? A. code. 682 is a Roman block, dies that I made as is the E, the E This one is a plain block and it is a plain E, but it is
still my set of number dies. Q. All right. Is there a size difference, sir, between 682
and 685? A. Q. No, they are the same. They are consistent.
Is that the type of size you used back in '86 when you
were manufacturing the Sten II Mark II machine guns? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Erb - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A.
573
There was a size that was slightly larger than this, just These are 095. These are 95-thousandths in
a bit larger. height.
I have in the another number set that you have, they They are probably 200- to
are a bit larger, slightly larger. 240-thousandths in height. Q. A. Q. Yes, sir.
You have the set of dies.
That's the other sets that I used. Okay. Now, you -- at one point, you manufactured these
firearms and then you put it in the stream of commerce by doing a Form 2; is that correct? A. They would be -- they were originally registered. The
government requires a federal Form 2 from the manufacturer, all the major firearm manufacturers in the country, Colt, Smith and Wesson would file a federal Form 2. We're all under the same
regulation, a Form 2 must be filed by the manufacturer and it notifies the government that a firearm has been manufactured, for that -- for that particular firearm. I or a Title II firearm. a pistol or a revolver. Whether it be a Title
Title I would be a rifle, shotgun or A Title II covers NFA firearms,
firearms that are regulated by the U.S. government and there's a $200 transfer tax on the gun if it goes to an individual. the free states of this country, an individual can own an NFA firearm. Q. All right. MR. KUMIEGA: Your Honor, may the case agent approach In
Erb - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. to show Mr. Erb Government's Exhibit 3.16, please? THE COURT: Yes.
574
(By Mr. Kumiega)
What's been handed to you, Mr. Erb, is What is that, please?
Government's Exhibit 3.16. A.
The firearm has been made to resemble a Sten Mark III,
resemble a Sten Mark III. Q. A. How can you tell that? The original Sten Mark III was a sheet metal plate that It was a 16-gage stamping that was rolled about a
was flat.
mandrel and it was made round and there was a resistance-welded seam on top of the tube that the British used. from a tube. Q. All right. Can you find the serial number on that This is made
machine gun? A. Well, I looked on top, there is no marking on top, there And there is a crooked number in front
is nothing on the side. of the trigger guard.
Very large case numbers, very plain, There's an E and
something you would buy in a hardware store. a 6 and a 3. Q. A. E683? E683.
It's very crudely stamped in front of the trigger
guard on the lower side of the receiver. Q. A. Q. Is that your serial number? That is not my serial number. And other than the serial number, the tube, is that the B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Erb - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 tube you manufactured back in 1986? A. Q. A.
575
This tube is not consistent with anything I manufactured. All right. Tell the jury why, please.
Well, if it was a Mark III, and to make a Mark III the You can see
tube is somewhat longer than the original Mark II. the added length in the receiver, five inches.
So to make a
Mark II, which you can do, you can make a Mark II into a Mark III; however, you have to add a piece of seamless mechanical tubing the same diameter and has to be added with the aid of a mandrel and has to be welded. If this were welded I would like
to hire the welder that's welded this together, but it doesn't appear to be welded or stretched. Q. A. Q. Let's look at the magazine well on that firearm. Yes, sir. Is there something -- can you tell the jury about that,
how that well is different from Government's Exhibits No. 6, 7, and 8, please. A. All right. Well, you notice this exhibit, which is
Exhibit 6. Q. A. Yes. 682. That's 682. Go ahead.
The magazine was made larger, the housing of the
magazine was made to fit over the exterior of the receiver, and that allowed the British to airdrop these. turned and they turned them like that. This could be
They turned them 90
degrees, they would unscrew the barrel, they would put in a B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Erb - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
576
piece of wrapping paper, just looked like a piece of paper bag that you would get in a grocery store. The British would wrap
them, the stock detaches readily, and they put the stock and the receiver with the magazine turned and the barrel in this position. This was the airdrop condition. And they would
airdrop these to various allies and various resistance forces throughout Europe. Q. A. Q. A. Q. A. But this is a replication of that? Yes. That's not a World War II firearm? That's correct, it is not. Right. This is a new firearm. This is not a curio and relic. It's a World War II type.
This is not a bring-back, it wasn't a gun that a GI had brought back into the country as a war trophy. Q. A. Q. Right. Same as Government's No. 7, 685; is that correct?
That's correct. Okay. Now, what I have here are two demonstrative
charts. A. Q. A. Q. A.
Do you see these clearly?
Yes, sir. Is one a Sten Mark II and one a Sten Mark III? The Mark II you're holding in your left hand. This one? And your right hand has the Mark III. That is a Mark III
British Sten gun.
And you notice the welded seamed rib on top.
Erb - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Point to that. Q. A. That (indicating)? Yes. That rib up on top.
577
That was the resistance-welded
seam that was indicative of a Mark II. Q. Is that seam a rivet? Is that also on Government's
Exhibit 3.16? A. 3.16. It is not there. It doesn't appear to be there.
This was a tube.
This was a piece of seamless mechanical
tubing or a piece of welding tubing, we can't tell yet, and it was made to resemble a Mark III. Q. Mr. Erb, as to the welds. It appears that in your
Government's Exhibit 8, the tube, looks like it's a cookie cutter pattern, is that correct, on your tube? If you look at
tube, please, Government's Exhibit No. 8, it's going to be in front of you. A. here. Q. Eight. Okay. I don't want to dent up the furniture
We have 8. Can you show the jury the port where the magazine well
would be, please? A. Magazine well would be on the left side of the firearm, I The cocking slot would be on the right And if you turn it this
have my finger in it.
side, on the starboard side here.
would be facing forward, this would be the ejection port here. I'm sorry. Ejection port would be on the right, this is the
magazine well port on my left. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Erb - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Q.
578
How does that well then compare to the E683, Government's It appears to be
Exhibit -- well, the Mark III machine gun? substantially different, please. A. Q. A. Q. A. Q. A. Exhibit 6. The Mark III? Exhibit 6. Is that yours? This is one of mine. Okay.
Again, the magazine housing is made larger to slide over Exhibit 7, again, the magazine
the exterior of the tubing.
housing with a piece of tubing that would slide over the receiver. Exhibit 3.16, the magazine housing is welded, is
marriage-welded to the side of the receiver. MR. KUMIEGA: THE COURT: Your Honor, may I approach the witness? Yes. The question I have, Mr. Erb, is this
(By Mr. Kumiega)
part of the firearm here, the tube, it seems this part here and here (indicating) A. Q. Yes. -- this would be better, I guess.
It was the attachment.
It doesn't appear to be a cookie cutter, it appears to be
pulled back; is that correct? A. Q. I see. It was --
Can you explain that to the jury why, why that is
important, please? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Erb - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A.
579
The welds are very crude, not consistent with the welds, These
with the tungsten gas welding that they do in my shop. are very crude.
It was a stick rod that would have a flux
coating on it, and it looks like bird droppings on the side of the receiver, if you want to put it in very plain terms. The
receiver was cut with a saw, and it was peeled open to accept this magazine well. Q. Okay. Yours is not, yours is cookie cutter square or
rectangle; is that right? A. Q. Yes, sir. And it was consistently cut and machined.
Mr. Erb, as you were talking before, talking about
manufacturing the guns and the laws being changed, I imagine there is a significant amount of paperwork associated with production of these automatic weapons; is that correct? A. Q. A. Q. Yes, sir. Okay. Yes. And that's the birthing document for the firearm; is that There is a lot of paperwork involved.
You talked to the jury about making a Form 2.
right? A. That's the birth certificate of the firearm. Of any
firearm that's produced in this country, it's the birth certificate, just like the hospital gives you that little certificate for your new baby that you bring home from the hospital. It's a very important document throughout the
individual's life is a birth certificate. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Erb - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. All right. The -Let me ask you this:
580
Did you do the paperwork associated
with the production of these firearms? A. Q. Yes, I did. And before a firearm left your business, did you, did you
have hands on to record the serial numbers? A. Yes, I did. For the firearm to leave my hands, leave my
business, I had to file either a federal Form 3 or a federal Form 4. The federal Form 3 allowed me to transfer it to The Form 4 would
another NFA firearms dealer in our country.
allow me sell it to anyone in this country who was not convicted of a crime, over 21 years of age, of sound mind, and required a federal law -- required a law enforcement signature on the back side, on the reverse side of the duplicate Form 4. And the law enforcement officer states that he has no reason to believe that this individual acquiring this firearm would have any reason to use it for an illegal or an unlawful purpose, and on the back you must state why you want it. And the most
common reason that individuals would list it for recreational shooting, I'm a World War I or I'm a World War II collector of firearms, I'm a curio and relics collector and I'm acquiring this for my firearms collection. for having it. Q. All right. Now, you said that you actually did the These are all valid reasons
Erb - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. Q.
581
inventory and the hands-on of every tube that left your shop; is that correct? A. Yes, sir, I did. MR. KUMIEGA: Your Honor, may the case agent show the
witness Government's Exhibit 1.4, one of the certificates -excuse me, 1.5? THE COURT: Yes. Mr. Erb, what is being shown in front Can you pull that out of Take your time and
(By Mr. Kumiega)
of you is Government's Exhibit 1.5.
the sleeve and take a look at that, please? look over the document. A. Q. I'm looking at my federal Form 2. All right.
And after that is some other documents and
I'll to talk to you about that in a second. A. Okay. I have a Form 3 going to R.J. Perry, another Form
3 going to Grant Kemmerer, and another Form 3 going to the Birmingham Pistol Wholesale, John Guy Walker. Q. A. And is there one more? Then we have another Form 3, dealer-to-dealer transfer to
a Larry Douglas Friesen, Oklahoma City. Q. All right. The Form 2. If we can show Form 2 on the screen. Mr. Erb, is that your handiwork?
MR. KUMIEGA: (By Mr. Kumiega) Yes, it is. All right.
Let's talk about some details on that.
What
Erb - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Q. A. date did you birth E676 to E700, please? A. Q. A. Q. That was -- April 14, 1986. May 14th, isn't it? May? Okay. Oh, 5. Okay, we're at May 14th, 1986.
582
Are these the guns that you manufactured on or
about that day? A. The guns were manufactured probably two weeks before
this, because -Q. Is that going to be the top left-hand corner, if you can
see that? A. I can't see that, the top left-hand corner. MR. KUMIEGA: (By Mr. Kumiega) 5/1/86. MR. KUMIEGA: (By Mr. Kumiega) Let's go to the whole document. And this -- what date is that, for the Go up, please. My mistake.
Is that the date of the manufacture?
record, please? A. Q. 5/14/86. Why is there almost two-week lag between that and that,
please? A. Well, in my haste, and we all hurry to do things, I had
the tubes probably 70 percent completed, not all the machine cuts were made to the receivers. We had NFA inspection. Of
course, Washington, D.C. was flooded with federal Form 2s from all around the country, more paperwork than they had ever B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Erb - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A.
583
experienced in their entire existence, all manufacturings -all manufacturers trying their best to produce firearms for a law that would close us down and put us out of business and curtail our business. Q. All right. So what did you do, then? What's the
mistake? A. Well, the NFA branch called me up, said, Charles, we
would like to come and inspect all these firearms that you are manufacturing. I said okay. So agents out of the Pittsburg
office came to my shop and they asked to see the firearms that I had produced. So I showed it to them and they looked at it, Each
and they knew exactly what they were looking for.
receiver had to have an ejection port, had to have a mag well port on it, it had to have a seer slot, a cocking slot, all of which they deemed very necessary manufacturing processes to call this a receiver. So they looked at them and they said, we can't accept these. Q. You have not completed these receivers. So it was rejected, your first batch was
All right.
rejected? A. They rejected this -MR. MARTIN: -- entire lot. MR. MARTIN: THE COURT: -- I object to the leading. It will be sustained. Your Honor --
Erb - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. KUMIEGA: 100, please? Q. (By Mr. Kumiega)
584
Can we show Mr. Erb Defendant's Exhibit
Mr. Erb, if you can maybe look -- is
that screen to the right working? A. Q. It's a little fuzzy. Okay. I can see that one (indicating).
This is Defendant's Exhibit No. 100, and there is
a date on that, the top left that I'm flashing with the laser pointer. A. Q. A. Q. A. Q. What date is that, please? That's April.
That's 4/20/86.
Same thing on the bottom, bottom right; is that right? Yes. That would be 4/20/86.
And that's your signature? My signature. All right. And again, this is Government's Exhibit 1.5.
This is your signature with different days; is that correct? A. Q. My signature, different day. All right. What's the differences between Defendant's
Exhibit 100 and Government's Exhibit 1.5, please? A. Well, NFA, when they visited the shop and said, Charles,
these receivers that you have in this block are not finished and we can't accept them; however, if you in the next few weeks can run them back through your process, run them back through the shop and finish machining them, we will accept them, but you must show them to us. So again, worked like little beavers
and we worked day and night just working on this stuff getting B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Erb - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 it all finished. I made the necessary cuts to satisfy the
585
government inspectors.
I called them and I said I think I have
finished the machine work required on the receivers that I had initially manufactured in April, April 20th of '86, and they came out and they looked at them, and it went then on about 5/14/86, approximately that date in May. So I let them look at
all the receivers, and it was an inspector, it was Agent Peter Rubis and he looked at each and every one. He counted them, he
checked the numbers, the serial numbers and went right down the line and looked at them and said, okay, you can file another Form 2 if you like. So on May 14th of '86, I filed this form
and it went back to the U.S. government, who listed them on the National Firearms Act computer. Q. All right. So let me ask you this: There were two
inspections of the E series; is that correct? A. Q. Yes, sir. And is there a significance about the Xes next to the
numbers? A. That's Peter Rubis's inspection and he Xed them out
saying these are no good, these are not consistent with what we inspect of a finished receiver. Q. All right. And then this second form that's Government's
Exhibit 1.5, he again inspected it? A. Q. Yes. Sure. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603 Let me clarify something, if I may.
Erb - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. The X on there is not part of the serial number. It
586
appears to be part of the serial number, it is not. same numbers, I just had to file a new form. government had requested I do; I did it. Q.
I used the
This is what the
Now, you said you brought some dies to the, for courtroom
presentation today; is that right? A. Q. Yes, I did. Several sets of dies.
How many dies did you use during the course of your
manufacture of the machine guns or firearms? A. Probably ten, 12 dozen different sets, different sizes, Again, none larger than the dies that you see
varying sizes.
in front of you. Q. Okay. And those, were those the dies, sir, that stamped
682, 685, and the real 683? A. Yes. Q. Again, the question is: Are those similar type dies that Those are the numbers that were entered on the receivers.
you used to make 682, 683, and 685? A. Q. Yes, sir. Okay. MR. KUMIEGA: Your Honor, at this time the United
States would move for introduction of Government's Exhibit 12 into evidence. MR. MARTIN: THE COURT: May we approach, your Honor? Yes.
Erb - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
587
(The following was had at the bench, out of the hearing of the jury:) MR. MARTIN: My objection is, your Honor, number one,
I didn't even see these until today and we were never told they were going to be exhibits. ones. Number two, they are not the same
I know of at least one of them that's in there now that
wasn't in the pictures that I was provided, and that is obviously the E stamp that I made a big deal about the other day. And your Honor, I object to the introduction of, to say
the least, the E stamp because it wasn't in what I've been provided before, and now it's here suddenly today. MR. KUMIEGA: Judge, these are just representations of
the type of serial numbers that he was provided -- when he was stamping the guns. The pictures are just representations. I
think Mr. Martin knew that we were going to bring in some dies regarding today's testimony. And all these are are basically There is really no
physical evidence of the photograph. differences between the two. MR. MARTIN:
The E is hugely different.
I made a huge
thing about that because Agent Knopp testified this is every die he said he ever used. MR. KUMIEGA: I think Mr. Knopp said that. I think
that these are a representation of the dies and that's why there is problems with the foundation regarding the photographs. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Erb - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: MR. KUMIEGA: THE COURT: Did he use these dies? He's saying he did, yes, sir.
588
He said they are representation. All we had was the photograph that Mr. These are the actual dies that he
MR. KUMIEGA:
Martin flashed to the jury.
brought, that he showed to -- displayed to Mr. Knopp, or some of the dies. The photographs are representations. We would
have to search out for the actual dies, and here they are today -THE COURT: I'll overrule the objection and you can
show -- I don't recall what Agent Knopp said specifically, but it's in the transcript. overrule the objection. (The following was had in open court, within the hearing of the jury:) Q. (By Mr. Kumiega) You brought the dies and your testimony You may have taken notes on it. I'll
is those dies are the type of dies you used to manufacture the 682, 685, and 705 in front of you; is that correct? A. I didn't bring the small set of dies, but I do have Those are my dies that I had manufactured. They are
those.
95-thousandths. small ones. Q.
I didn't think to bring those, the little
So these dies are smaller, I mean the dies you used to
manufacture the guns in front of you, 682 and 785, are they different from the ones -B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Erb - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. They are smaller than the ones I brought. I'm sorry. I did not
589
think to bring them. Q.
Are these the type of dies you exhibited to Mr. Knopp
during the investigation? A. Q. Yes. And I showed him the small set also. Mr. Erb, Government's Exhibit 3.16, the
All right.
machine gun with E683, can you look at that, please? A. Q. Yes, sir. That's the Mark III. Let me ask you this: That's a, the
gun that you're holding, is that a Sten Mark II? A. Doesn't appear -- does not appear to be. Appears to be a
Sten Mark III. Q. And the barrel length, is that lower -- can you tell us
the difference between the barrel length and your birthing document and the barrel length that you have in front of you? A. The barrel is the same on a Mark III and a Mark II. They
are the same length. Q. A. What about the receiver? The receiver overall would probably -- the overall length
of this firearm would be consistent with the 31 inches; however, the receiver is much longer on this particular firearm than it is on the Mark II. Q. The receiver that you're holding in your hand, the
Government's Exhibit 3.16, is it consistent with all the guns that you made? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Erb - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. 683. Q. A. Q. Okay. No. Is that consistent with what you made?
590
The very coarse number on it indicates that it's a, it's
Is the gun that you're holding in your hand, is that the
gun you manufactured as E683? A. Q. No, sir. Okay. Now, have you ever let a machine gun or any NFA
weapon leave your shop without a serial number? A. Q. Absolutely not. Okay. There was some photographs of your shop that were Can you tell
being displayed during the course of the trial.
us about your physical -- your factory and where you manufactured the items, please, if there was problems? A. I had a really nice shop once upon a time. I had an
electrical fire that destroyed all the wiring, destroyed the ceiling tiles, took all the lights out, did a lot of damage. But it's still the same shop. And we refurbished some of the
equipment, some of the equipment I scrapped. Q. All right. Mr. Erb, let me ask you this: You were cited
on more than several occasions of ATF inspectors, administrative inspectors for certain violations; is that correct? A. Q. Yes. And were these violation resolved? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Erb - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. Yes, sir. And what type of violations did they cite you for,
591
please? A. I got a violation for filing a federal Form 2, and not
complying -- how do I word this -- again, we had spoken of the form that was filed in April of 4/20/86. In filing the form,
it was my intent to build firearms, and when I manufactured the receiver, the receiver didn't have all the required machine cuts on it to make it a useable receiver. for that. Q. All right. Are there any other violations that occurred So I got a violation
subsequent to your manufacture back in May of 1986 that you were cited for? A. Q. A. Q. There are several. Were those resolved? Yes, sir. All right. MR. KUMIEGA: case agent? THE COURT: (Brief pause) MR. KUMIEGA: of this witness. THE COURT: MR. KUMIEGA: You may cross-examine. Your Honor, we move for introduction of Your Honor, we have no other questions Yes. Your Honor, may I have a moment with my
Erb - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. MARTIN: Q. A. I do. Q. A. Q. Mr. -- Agent Knopp, Mr. Knopp? Yes, sir. Mr. Erb, do you know this gentleman right here? I met him through the course of the investigation. Government's Exhibit No. 12, into evidence, the dies. THE COURT: will be admitted. MR. MARTIN: Your Honor, I had already previously
592
The Court will note the objection and they
objected to that, I believe. THE COURT: will be admitted. CROSS-EXAMINATION I said I noted the objections and they
Yes,
As a matter of fact, you met him probably back in 2004,
didn't you? A. Q. I believe it was about then I met Agent Knopp. And he came out and brought with him some other agents, I think that Mr. Rubis came out with him, didn't
did he not? he? A. Q.
Yes, sir. Pete Rubis, the firearm inspector up in, is it
Philadelphia? A. Q. He was in the Pittsburg office. Pittsburg. I'm sorry. And you provided them a
Erb - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 interview, I guess, back in July of 2004. the approximate date? A.
593 Do you recall that,
I don't recall the exact date, but they came -- made an I
appointment, they called, contacted me and I said yes. couldn't turn them down. Q. A. Q. So you talked to them then? Yes, sir. And you told them that when this law that you've
testified about on direct examination went into effect that you made as many Sten II tubes as you possibly could, didn't you, sir? A. Q. Yes, sir. And that was because after May 19th, 1986, you could no
longer make those tubes anymore? A. Q. Yes, sir. And you told them you employed a bunch of people to help
you get them made? A. Q. Yes, I did. And that you were knocking them out just as quick as you
possibly could; is that right? A. Q. Yes, sir. And you told them that you could locate -- let me You told them that every one of the tubes you
rephrase that.
made a serial number was put on it, didn't you? A. Yes, sir. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Erb - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q.
594
And you told them that the serial numbers were placed on
the tubes by several different employees, didn't you, sir? A. Q. Yes, sir. You didn't tell them anything about a dentist friend of
yours that quit and came and put these unique serial numbers on, did you, sir? A. They didn't ask. That wasn't a part of the
investigation. Q. So how many different employees did you have working for
you in let's say March, April, May of 1986? A. Q. I recall seven. Okay. So it would be a fair statement to say you have
seven different employees that are hand-stamping serial numbers on these tubes; is that right? A. It would be -- wouldn't have the entire crew. Probably
two, would come to about two people that were actually doing the stamping. Q. A. And that amounts to several then? If you would to -- if you would like stretch two to
several, meaning three, perhaps three. Q. A. Q. Well, I'm just using your wording, "several". Several. Okay. And did that also include your dentist friend?
Would he make four? A. No. He would be included in that, sir.
Erb - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. All right. And in that group when they came out they
595
showed you, did they not, a Form 2? you a Form 2? A. Q. Yes, sir.
Do you recall them showing
I recall them showing me a Form 2.
As a matter of fact, I'm going to show you the Form 2 This has been identified and introduced Do you see that,
that they showed you.
into evidence as Defendant's Exhibit 100. sir? A. Q. Yes, I do.
This is the Form 2 that Agent Knopp showed you, okay?
Did you tell Agent Knopp that, wait a minute, that Form 2 is not right? A. Q. A. Q. A. I explained to him that there were two Form 2s. Oh, you did? Yes, I did. I guess he just left it out of his report then. I told Agent Knopp that when they first came out and the
inspector was there and verified it in front of Agent Knopp, and Peter Rubis told Agent Knopp that he made two trips out, because the first trip they disallowed the receivers that were filed on -- this form here, I can't see the bottom date, but I suspect it was April 20th. Q. A. It is April 20th. Okay, it's April 20 that they disallowed those, and he And I spoke to Agent Knopp
came about and reinspected them.
Erb - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to. Q. about that. Q.
596
So you told Agent Knopp, and he'll get on the stand and
truthfully testify that you told him that back in July of 2004? Is that your testimony? A. I believe so. Yes. I -- I instructed them and told them
of the -Q. And the problem -MR. MARTIN: THE WITNESS: (By Mr. Martin) May I approach? May I know your name, sir? My name is Mr. Martin. What notes are
you looking at there, Agent, I mean, excuse me, Mr. Erb? A. Q. Just my own notes, sir. Okay. Are those reports that you provided to the
government or something? A. Q. No, sir. Okay. Has the government seen them? Has the government
seen them? A. Oh, yes. MR. MARTIN: MR. KUMIEGA: Do I have them? I don't know what reports he's referring
Didn't he just write something down on a piece of paper? MR. MARTIN: THE WITNESS: That's what I'm referring to. I wrote this gentleman's name down. Is that all right? The problem with the tubes I
like to know who I'm speaking to. Q. (By Mr. Martin) That's fine.
Erb - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
597
that you say were rejected is because they weren't completed, right? A. Q. A. Q. That's true. For example, some of the holes weren't cut out? That's correct. And one of the holes that might not have been cut out --
what is this hole right here where the magazine well is? What's that hole called? A. Q. The magazine well cut. Okay. Some of them didn't have magazine well cuts, did
they, sir? A. Q. That's true. Let me ask you: You said that -- in truth and fact,
didn't you tell Agent Knopp this form is -- I'm sorry -- I'm holding it here. It was down here. Do you need -- this form
here, the April 20th form, this form is the form you used to register E676 through E700. Isn't that what you told him?
This form dated April 20, 1986. A. That was the initial form that I had submitted to the The initial Form 2 was the form that I submitted
government.
to the government. Q. Did you tell Agent Knopp this is the form that registered
those 25 tubes, sir? A. Q. No, sir. That form did not register them.
Now, sir, I believe you also testified that -- this is B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Erb - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Bonnie? Q. A. Q. (By Mr. Martin) Manufacture. Well, it doesn't say manufacture because it's folded Can you see that form has been folded over? That says "date of mafacture"? Government's Exhibit 1.5, okay? sir? A. Q. Do you see 1.5?
598
Do you recognize that form,
It might even be on your monitor.
That was the May 14th, '86 registration. And you believe you testified this actually occurred on Do you recall that? Do you recall just testifying
May 1st.
that these were probably manufactured on May 1st? A. Some were May 1st, yes, somewhere around that date they
were manufactured then. Q. Okay. Do you have specific recollection of that, or is
that a guess? A. Q. That was over 20 years ago. So you don't have -- as a matter of fact, that date is
May 14th, isn't it, at the top? A. side. No. The May 14th date is at the bottom lower right-hand There is a crease
The date up on top looks like 5/1/86.
in the form or a line, but it looks like 5/1/86. Q. All right, sir. That's the point I'm getting at. You
don't know that date because that crease covers up a large portion of that date, doesn't it, sir? MR. MARTIN: Can we focus in on this side of the form,
over, right?
Do
Erb - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 you agree with me on that? doesn't it? A. Q. Yes, sir.
599
That's says "date of manufacture,"
The 4/20 form says "date of manufacture," and that one Would you agree with me? It probably is a 14. Looks
has been folded over up there. A. That number should be 14.
like a 1. Q. Now, you also told the agents that when you were going
through this process of making all these tubes as fast as you possibly could, serial numbers were placed in all kind of different locations; isn't that true, sir? A. Q. There are two basic locations. You didn't tell the government that serial numbers were
placed in different locations by several different people? A. There was two basically positions that the serial numbers
were placed. Q. Okay. My question is: Did you tell the government,
Agent Knopp, that the serial numbers were not located in the same place on every receiver? A. Q. Yes. Okay. Now, you say there are two basic locations. What Did you tell him that?
are those two basic locations? A. They were numbered up near the top of the cocking slot,
and they were numbered on the left rear of the receiver. Q. And let me ask you, sir: If they weren't there, would
Erb - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that mean it isn't your firearm?
600
If the serial number wasn't
in one those two locations, does that mean it's not your firearm? A. Q. That's a hard question to answer. Well, the two firearms you have up there I think are
Government's Exhibits 6 and 7. A. Q. two? A. Up near the rear of the cocking slot up on top, and Yes. Yes. I have 6 and 7. Those are -- where are the serial numbers on those
Exhibit 7 is right up on top. Q. A. Okay. And are those the two locations? The
That's -- well, these are both in the same place.
other location would have been on the left rear. Q. A. Can you show me where that is, please? Okay. Would have been on the left rear at this point
(indicating). Q. A. Q. On the other side? Yes, sir. All right. And you would agree with me, sir, that not
all those numbers are the same size? A. Q. That's true. As a matter of fact, Government's Exhibit No. 8, the tube Do you
in front of you, has larger serial numbers, doesn't it? have the tube? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Erb - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. tall. Q. Yes, these are larger. They are about a quarter-inch
601
And they are larger than the serial numbers on that same
series of guns that was made -- excuse me -- that same series of receivers that was made about the same time? A. This is another number block sets. It's out of this
purview of Form 2. Q. A. Q. A. Q. Right.
It's on a different form.
It was made approximately the same time? Yes, sir.
Approximately.
Because after May 19th, you couldn't have made that? No. And you dated this either April 20th or May 14th,
whatever date you want to pick, so within a month of that, right? A. Q. Yes, sir. Okay. And those are obviously used with different serial
numbers, I mean different die set? A. Q. Different die sets. All right. Now, besides the serial number, did you also
tell the agents that every receiver you made would have a unique manufacturer mark on it? A. Q. I had several ways of marking my manufacturer. Did you tell the agents that every receiver you made
would have a unique manufacturer's mark on it, sir? A. It would have my manufacturers's mark on it. Did I use
Erb - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the word "unique," I'm not sure I used that word. Q. A. Q. Okay. Yes. Okay. Would you point out to the jury where the Did you tell that to Agent Knopp?
602
manufacturer's mark is on Government's Exhibit No. 6? A. This gun has been heavily buffed, phosphated, the
manufacturer's mark is not there. Q. All right. Would you show the ladies and gentlemen of
the jury where the manufacturer's mark is on Government's Exhibit No. 7? A. Q. A. gone. Q. A. Q. A. Q. A. I'm sorry. I didn't hear what you said. I'm an old guy. I got them too. This one has been pretty heavily buffed. It's probably
This one has been buffed. When you say "this one," what number are you -Exhibit, I guess it would be 6. You couldn't find it on 6? I can't find it on there. And E685, this one has been
scuffed and painted. Q.
I don't see my manufacturer's mark on it.
So your manufacturer's mark you can't find on either of
those? A. Q. No, sir. Okay. I'm going to show you what has been identified and
Erb - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. Q.
603
introduced, which are pictures of firearms that the government agents testify that have been introduced as being manufactured, your receivers. Okay, sir? If we could look at Exhibit No. 38. And I apologize for the quality of the Do you recognize that firearm
MR. MARTIN: (By Mr. Martin)
photographs right up front, sir. at all, sir? A. Q. A. Q. It's a Sten Mark V. Mark V? Uh-huh.
And what's the difference between a Sten Mark V and a
Sten Mark II? A. Sten Mark V had a same receiver as the Mark II, however, The
the trigger housing was somewhat varied than the Mark II. trigger set was slightly forward so that they had a wooden pistol grip on the gun. stock.
The gun also had a wooden shoulder
They refined the Mark II. MR. MARTIN: Could I move the microphone a little,
your Honor? THE COURT: Yes. Let me push that away from you.
(By Mr. Martin) Okay.
Now, that's 38, right?
Can you see, if we can focus in
on that number there at all, can you read that number, sir? A. E679. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Erb - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. you. A. Q. A. Q. E679.
604
And you call that a Sten Mark V; is that right?
Yes, sir. Can you register something as a Sten Mark II and make it
a Sten Mark V? A. Q. Yes. Because you registered 689, did you not, right here, 68
-- what's that number -- 679, I apologize -- 679 as Sten Mark II; did you not, sir? A. Q. A. Yes, sir. So is this birthing document incorrect? The firearms were sold, manufactured with the intent,
intent is very important as far as the government goes, intent to manufacture a Mark II. Q. That wasn't a Mark II -MR. KUMIEGA: MR. MARTIN: (By Mr. Martin) Objection, your Honor. I apologize. Go ahead. I didn't mean to interrupt Let him answer.
Mr. Martin, when I sold the receivers on Form 3s to other
manufacturers who never got to produce any firearms, they had a receiver listed as a Mark II. By notifying the NFA branch as a
manufacturer, the NFA branch, the technical branch in DC allowed the use of Sten Mark II receivers to produce a Sten Mark V. Q. All right, sir. That receiver, do you have No. 8 in
Erb - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 front of you, Exhibit, the receiver? A. Q. A. Q. A. Q. Yes. Can you hold that up for me just a second? I can do that.
605
Now, when you sold these, that's what you sold, right? That's correct. That piece of tube that we call a receiver. So someone
purchased that piece of tube that said it's a barrel length of eight and an overall length of 31. sir? A. Q. Yes, sir. And that wasn't an overall length of 31 at the time it Would you agree with that,
was sold, was it? A. Again, intent was very important, especially to the U.S. This would result in the
government and to the NFA branch.
production of a firearm that had an eight-inch barrel and an overall length of 31 inches. Sten Mark V has an eight-inch
barrel and has an overall length of approximately 31 inches. So it is very consistent. MR. MARTIN: Exhibit 39, please. Q. (By Mr. Martin) Again, this is another gun, firearm, I'm going to Bonnie, if we could go to Defendant's
that purports to have been manufactured by you. ask you, sir:
Do you recognize, can you recognize what portion
of the firearm might be depicted here, sir? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Erb - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A.
606
Looks like the mechanism of a Sten, I'm looking at the
mechanism of a Sten. Q. A. Is that possibly the trigger housing area, sir? Yes, it would be the internals. There is a trigger
spring and there's a seer bar I'm seeing and the safety, the crossbolt safety. Q. A. Q. Do you see serial number E680, sir? I can't see it. You don't see a number at all? Let me ask you this: Let
me direct your attention, do you see a number there, there, and there (indicating), three symbols? A. It appears to be a number. Could be a subassembly
number. Q. A. All right, sir. I don't see it. You don't see a 680 on that? I see what looks like to be some number Maybe the top of the eight is middle I can't tell.
characters on there.
character, perhaps the end is a zero. Q.
But the serial number should not be in the trigger
housing area, should it, sir? A. Of course not. MR. MARTIN: Again, if we could go to Exhibit 40. The
next photograph, please. Q. (By Mr. Martin) Do you recognize what part of the
firearm is in Exhibit 40, sir? A. Appears to be the underside. I'm not quite sure. Looks
Erb - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. like a trigger housing. Q. Okay. MR. MARTIN: (By Mr. Martin) Can we focus in on the numbers again?
607
Can you make out the numbers that are
there, sir? A. Q. No, sir. All right. MR. MARTIN: Keep going. Q. If we can go then to two pictures down.
I'm sorry. Again, I'll help you. This is the same
(By Mr. Martin)
firearm. A. Q. A.
Can you see the numbers right there in that area? I can't see it.
There appears to be a number there, sir.
And is that where a serial number is supposed to go, sir? For the most part, serial numbers should be readily This would have been perhaps covered --
visible, discernable. Q. A. Is that --
-- by a trigger housing or trigger cover, the number
appeared on the bottom. Q. Does that sometimes appear when you put the serial number
on before you put your cuts, make cuts, sir? A. Q. A. Q. No. That won't happen if you put the serial number on first? No. We numbered them after all the cuts were done.
Well, if you numbered them after all the cuts were done,
they would all be in the same place, wouldn't they, sir? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Erb - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. They should be. Understand something -- may I?
608
I'm asking you questions, sir.
If they are all in the
same place and they are all cut, the numbers would all be in the same place, wouldn't they, sir? A. Depending on who is numbering a particular receiver at
that time of that day. Q. A. Q. Of the several employees? It was difficult to control. All right. If we'll go to Exhibit 41, that one the
serial number is right where you said it was supposed to be, right? A. Q. Right up on top. As a matter of fact, that's the gun sitting right there
in front of you, 682, it's Government's Exhibit No. 6. A. Q. Yes. This is 6. Yeah, 682.
And the next one we have is Defendant's Exhibit 42, 685,
and it's also not numbered in the right place, isn't it? A. Q. A. Exhibit 7? Yes, sir. It's upper top. MR. MARTIN: (By Mr. Martin) If we could go to Exhibit 43. Can you tell me what type of firearm
from the photograph that is, sir? A. Q. Appears to be a Sterling. And is that your receiver, or do you know? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Erb - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. A. Q. A.
609
I've built several Sterlings, some of my receivers have
been built into Sterlings by other manufacturers. MR. MARTIN: (By Mr. Martin) Yes, sir. If we can go to the last photograph. Can you see an E688?
It appears to be on the magazine housing.
Do you see that, sir? Yes, sir. And E688 is also contained in Government's Exhibit 1.5,
is it not, sir? A. Q. A. Q. A. I believe so. E688. 688. It's on that document.
Is that the -Yes.
Is that the tube that goes with E688? Notice on a Sterling, the magazine housing is welded
directly to the receiver, it's not detachable, cannot be removed. Q. I guess my question was: Is that the tube that you
purported to be registered on this Form 2 as 688? A. Q. A. 688 was a Sten Mark II receiver that I manufactured. And my question again is, sir: Is that the tube?
Without having the firearm in front of me, I cannot make
a definitive answer to your question. Q. All right. Now, I'm going to show you Defendant's I will represent to you that this Can you tell by looking at that what
Exhibit No. 44, please. number should be E693.
Erb - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
610
type of firearm this is, sir, or receiver maybe would be more appropriate? A. Q. A. Q. Looks like a Mark II. Okay. Next one. Does that help you? Yes, sir.
Appears to be a Mark II. All right.
Now, this one, this one has real unique
manufacturer marks on it, doesn't it, sir? A. Q. A. Q. A. Q. A. Q. A. Q. A. Sure does. Does that look like C.N. Erb, Jr.? Yes. Fredericktown, Pennsylvania; is that right? Yes, sir. Did you put that on there? No. One of your several employees do that, sir? Probably not. I'm sorry? It's not for me to mark them like that. Appears to be a We just don't mark them like that.
billboard on the side of the gun. Q. A. Q. A billboard? Yes. I mean, it's very large.
So you're not responsible for any of these markings with
your name and the type of firearm on 693? A. shop. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603 That's not consistent with what we have turned out of our
Erb - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. sir? Q. A. So do you know whether or not it's one of your tubes? What's the serial number, sir? MR. MARTIN: I'm sorry. Q. Let's go to the next picture. There.
611
One more,
Keep going.
(By Mr. Martin)
Can you see the serial number right
here, sir? A. Yes. E693. Okay. The numbers are consistent with my I'm the only manufacturer in
numbers, yes, sir, my E numbers.
the country that used the letter E. Q. E? A. Q. That's true. Now, I believe you testified that you always sold firearm Well, that's not the law, sir, is it? Anybody can use an
receivers that had, what did you say, seven cuts in them? A. Q. A. The rear locking latch slots were not required. Okay. So that's six cuts?
A seer slot, a cocking slot, a mag well cut, and the
ejection port was required. Q. A. Q. A. So that's four or five? It's four. Four? Uh-huh. MR. MARTIN: (By Mr. Martin) So let's go to Exhibit 45, please. And can you make out what that is there,
If you can't, just tell me. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Erb - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. A. Looks like a small case E. All right. Is that one of your tubes?
612
I can't tell from here.
I mean, it's impossible for me
to tell what it is. Q. All right. MR. MARTIN:
I see the serial number.
Let's go forward and I'll stop you.
Here's -- if we can focus in. Q. A. Q. A. Q. A. Q. A. Q. A. (By Mr. Martin) Yes. E694. And do you see that one, sir, E694? Can you see this number here?
That's E694. Yes, sir.
That gun, E694, right? Okay. 694.
Can you see that picture, sir? Yes, sir, I see it. There is a slot along the bottom there. Appears to be a slot, cocking slot. MR. MARTIN: Do you see that?
Yes.
May I approach the witness, your Honor?
I have the photograph of that. THE COURT: (By Mr. Martin) Yes. This is E694. Does looking at the paper
picture help? A. Q. A. No, it doesn't. I mean --
I'm talking about this slot right here. Yes. I see a slot in it.
Erb - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Okay.
613
And as a matter of fact, the picture actually has
the entire tube on it, doesn't it? A. Q. Okay. I want to ask you a question, sir. I want you to point
out for the jury, I don't know the appropriate names, but I think one of them is a magazine slot. there? A. Q. Doesn't appear to be. And there's -- as a matter of fact, there appears only to Not one in there, is
be one slot in E694, isn't there, sir? A. Q. A. Q. Apparently. Yes.
And that is this tube right here? Yes. Somehow or another you were able to register and sell a
tube with one slot in it; isn't that true? A. them. Q. A. Q. That's not true. My tubes were -- had all the cuts in
The feds looked at every one of them when they were out. Is that your tube, sir? I can't tell. Are you saying that the government went out and
photographed an E694 that wasn't your tube, sir? A. Q. A. Q. When did they photograph it? We know it was after 2004. Really? Really. That E look consistent with the dies that you
Erb - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 please. Q. A. Q. A. Q. A. used? A. Q. It's that type of die.
614
Is the 694 consistent with the size of dies that you used
on the other weapons? A. Without having it in front of me it's hard to tell. From
the photograph it appears that could be it. Q. Okay, sir. MR. MARTIN: If we can go to Defendant's Exhibit 46,
If we could focus in right up here. Can you see that, sir?
(By Mr. Martin) Yes.
There's a monitor if it helps. It's a little fuzzy. I can see it better up front.
Does that appear to be one of your tubes? Without having it in front of me, it's difficult. The
serial number -- it's one of my serial numbers. the style I can't tell looking at it from here. Q.
Whether it's
Well, it's one of the serial numbers, and I guess since
you're the only one that can have an E, as you just testified, it's E689, right? A. Q. A. Q. Okay. It's 689.
And the location is on the left side now? Left rear. And it appears that -- and I don't know what that is. It appears there is Do
you know what kind of coating that is?
Erb - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. something there to make that more visible. A. Q. A. Q. Chalk. I'm sorry? Chalk. Chalk. Does that look like it was -- something was Paint,
615
scraped off or something to make it more visible? phosphate, I don't know what -A. Q.
Looks as though it's been buffed or scraped or sanded. Okay. MR. MARTIN: Now, if we could go, Defendant's Exhibit
47, please. Q.
One more. Can you see a serial number on that
(By Mr. Martin)
tube, sir? A. Q. E698. 698.
And that would be one of the tubes you have registered to
you, right? A. Q. A. Q. Yes, sir. And again, where is that located? Left rear. All right, sir. MR. MARTIN: (By Mr. Martin) If we could go to Exhibit 48. Can you see a serial number under the
sight, sir? A. I can't see the sight number. MR. MARTIN: No.
Can we focus in any more on that?
Erb - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Q. A. (By Mr. Martin) Can you see a 696 on that gun, sir?
616
There appears to be a number there.
The crinkle paint
seems to be distorting the number. Q. A. Q. A. Does that help? There is one right to you right there.
It's real fuzzy, this monitor. I'm sorry. I agree there is a number there; I can't tell what it is
from here. Q. All right, sir. If I represent to you the number is,
this is one of your guns that has been provided to us from the government, it shouldn't be under a sight, should it, sir? A. Q. A. Again, this is a Sterling gun. I'm sorry? This is a Sterling. It's a Mark IV L182 Sterling. Sten
gun receivers were used to make these. Q. A. All right. The technical department in DC has allowed the
manufacturers to take the Mark II and turn them into Sterlings. Same tube dimensions. Q. But you'll agree with me the serial number is under the
sight? A. Q. Yes, sir. All right. MR. MARTIN: (By Mr. Martin) If we could go to Exhibit 49, please. What kind of firearm is this, sir? I will agree with you.
Erb - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. sir? A. Q. A. Yes. And what do you see? I don't know why 249 is on there, but I see E700 and Appears to be a Sten Mark II. All right.
617
Can you see the number that's on this gun,
there's a number in front of it. Q. A. All right. Is that one of your tubes?
Without having it in front of me, I can't definitively
say yes it is or isn't. Q. A. Q. All right, sir. Do you know what the 249 is, sir? Why is 249 there? Do you know what it's doing on
I don't have a clue.
That's what I asked you.
there? A. Q. No, sir. Now -MR. MARTIN: Judge, I'm getting ready to go into If you want me
another area; I'm going to be rather lengthy. to continue I will, or -THE COURT: MR. MARTIN: (By Mr. Martin) Yes. Very well.
We were talking about the distinction
between a Sten II and a Sten III a while ago. A. Q. Yes, sir. Sten II, my understanding is is a tube, correct? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Erb - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. Yes, sir.
618
Sten III is a piece of flat metal that is put -- rolled
around a mandrel and made into a tube, so to say, and welded at the top, correct? A. Q. Yes. And I believe you testified that the weld actually is
part of the sight; is that right? A. The welded seam on top of the tube is -- served as a It still had a rear sight on it. And the rib
sighting device.
served as a sighting device for the soldier.
And the front
sight on the Sten Mark III appeared to be just a little notch, an extra cut in the seam that when they folded it would make a front sight. Q. You'll agree with me that Government's Exhibit 3.16 is
not a Sten III, will you not, sir? A. It appears to have been manufactured to look like a Sten
Mark III. Q. A. Q. Okay. My question was: It's not a Sten III, is it, sir?
It's not a Mark II. Is it a Sten III? If you don't want to answer my
question, just say I don't want to answer your question. A. Q. A. Q. You want a yes or no, sir? Do you want a yes or a no?
I asked is it a Sten III, yes or no? Appears to be a Sten Mark III more than a Sten Mark II. And would you show the jury the roll and the weld on the B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Erb - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 gun then? A. Q. The seam on -- I'm sorry. Okay. Your question is unclear.
619
I'll try -- is Government's Exhibit 3.16 a Sten
Mark III? A. It is closer to appearing to be a Sten Mark III than a
Mark II. Q. A. Q. Okay. Was my question not clear? Yes. Is Government's Exhibit 3.16
Perhaps.
I'll try it one more time.
a Sten Mark III? MR. KUMIEGA: THE COURT: the answer yet. THE WITNESS: showed it to me. Q. (By Mr. Martin) You would agree with me, would you not, I would classify it as Mark III if you Objection. Asked and answered twice.
It's been asked twice but I haven't heard
sir, that it doesn't have many of the unique characteristics that are unique to a Sten Mark III? A. Q. Yes. Yes, sir, Mr. Martin, I would agree with you.
In particular, what we just described as a flat piece of
metal being rolled together and welded? A. Q. Yes, sir. Okay. Now, in 1986, you made hundreds of Sten receivers
in April and May; isn't that true, sir? A. Yes, sir. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Erb - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. A. Q. How many hundreds? Probably 500. 500 just Sten receivers? Yes, sir.
620
And you made not only Sten receivers, but other types of
receivers, because you couldn't make any kind of receiver after that, could you? A. Q. No, sir. How many receivers do you think you made during the
April/May period of time? A. Q. 1200, 1400 receivers total. Again, it's been 20 years.
Now, you talked about Government's Exhibit No. 6, and I
believe you indicated it had an usual type of coating on it. What is that? A. Q. It's a manganese dioxide phosphate finish. All right. And Government's Exhibit No. 7, you said it
was, for lack of a better word, just painted? A. Q. It's painted, sir. All right. And both those guns were made around the same
time, right? A. The receivers were manufactured on or about, before May
19th of 1986, the receivers. Q. All right. And were you responsible for the finish on
either of those, sir? A. No, sir. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Erb - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. As a matter of fact, you talked about one of those
621
firearms appeared to have been polished; is that right? A. Q. Yes. And you talked about that the welds would be polished off
or something like that? A. Q. A. Q. Yes, sir. Which one is that? Exhibit 6. Someone has polished the welds.
And you weren't responsible for any of that manufacture
of the gun other than the tube, right? A. Q. That's correct. And you believed you said Exhibit 7 is -- this might not
be a technical term -- but more crudely welded, maybe it hasn't been polished or whatever? A. It's more consistent with what the British would have
manufactured. Q. A. Q. A. Number 7 is? Yes, sir. Because it isn't all polished up? It's not polished, it's not phosphated, it just has a
black painted finish on it, as were many of the World War II curio and relic guns. Q. And you sold a bunch of tubes, about 25 or 50 tubes to a
Guy named R.J. Perry on a Form 3, did you not? A. Yes, I did. Yes.
Erb - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. As a matter of fact, we know that, or you know from
622
looking at the record that E683 was one of the receivers that you sold to R.J. Perry? A. Q. A. Yes, sir. Okay. What about E682 and E685, do you know that?
I don't know that for sure, but perhaps these firearms
did go to R.J. Perry in Illinois. Q. And how many receivers did you sell him in bulk, do you
believe? A. Q. A. Q. I think it was a hundred receivers. So a hundred just like that? Yes. And did you sell him anything besides Sten tubes? Did
you sell him other types of tubes? A. I think perhaps there may be have been a few MP40
receivers. Q. A. I'm sorry? I may have sold him some MP40 receivers. I don't
recollect now. Q. A. Q. is. A.
I would have to go really do some digging.
I'm going to ask you about the MP40s here in a minute. Okay. Tell us what the difference between an MP40 and a Sten II
An MP40 was a World War II gun that was manufactured by
the Germans, and it was a very successful firearm that the B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Erb - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
623
warmark used and it was encountered by our GIs and our entire allies as they entered Europe, the European theater. British, the French, and the U.S., the Canadians, the Australians all encountered MP40s at some point or another on the African Continent and all of Western and Eastern Europe. The Russians encountered them. It was a very successful gun It was a The
that the warmark used, and it was built by Germany.
highly sophisticated sheet metal stamped firearm, and very highly sought after by collectors. Q. Okay. I think my question was: What's the difference
between the two receivers? A. The receiver utilized a tube that was stamped, it was a It was flat sheet of steel, and when they stamped
flat tube.
it it had all the ejection ports, the magazine ports, the seer slots already stamped in it. They stamped longitudinal ribs on
the exterior so when it was folded about a mandrel it appeared to have flutes milled on the outside, and actually proved to be a way for dirt and dust and debris to be collected inside the receiver, so the gun would not jam easy. Looking at the
outside of the receiver it had ribs on it, had a folding stock, a decent set of slights, a big light forearm, a separate magazine well that was attached. It was a very finely made
sophisticated sheet metal stamped firearm that was developed in the late '30s by the Germans, and it differed greatly from a Sten. A much more sophisticated firearm, more costly to
Erb - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 manufacture. Q. A. Q. A. The receiver of the MP40. Yes. How long was it? It was probably somewhere in the neighborhood of, I I don't recall what it is. I have a
624
think, 14, 15 inches. drawing on it. Q. A. Q.
Well, you manufactured and sold them, right? Yes, I did. Okay. And did you -- was that a tube or was it a flat
piece of metal that was folded? A. The tooling to replicate the MP40 would have been So the next best thing was to utilize a
extremely expensive.
piece of seamless mechanical tubing and use a concave cutter on a horizontal milling machine and mill the cuts in that receiver tube and polish it, and it would appear to have been a sheet metal stamping. Q. A. Is that what you did in those the tubes you sold? And I ground the cutters and made quite a few MP40s, MP40
receivers. Q. A. Q. Out of tubes? And built quite a few -- yes, utilizing tubing. All right. Now, the individual you were telling us about
earlier, Mr., is it Peter -- the ATF agent that you're familiar with, that's his name? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Erb - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. A. Q. He was Peter Rubis out of Pittsburg.
625
Mr. Kumiega was asking you earlier about if you had any Do
violations with the ATF over your manufacturing process. you recall that, sir? A. Q. Yes, sir. Okay.
And isn't it true, sir, that you have been cited
by the ATF on multiple occasions for creating tubes, Sten II tubes, with duplicate serial numbers? A. We all make mistakes, and I do not pose to be a perfect
manufacturer and there was -- I believe I duplicated a serial number. Q. A. Q. Well, more than one time? Yes, sir. As a matter of fact, you would have sold a tube and they
would, for example -MR. MARTIN: (By Mr. Martin) Okay. If during the inspection process the ATF would come out If I may approach, your Honor. I want to borrow an Exhibit 8 here.
and find a tube, and I'll use this just for hypothetical purposes, much like Government's Exhibit 8 with a serial number, this one happens to be E705 on it, and they could inspect their record and find a firearm with E705 serial number, your stamp was in possession of a lawfully licensed Class 3 or tax-paying individual; isn't that true, sir? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Erb - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. It happened. Yes, sir.
626
And it happened on many of the E600 series that were
manufactured during this April/May 1986 period; isn't that true, sir? A. There were mistakes in the manufacturing process before The old tube that was mismanufactured had the cuts We stored these tubes in a
May 19th.
in the wrong place, was discarded.
large shelving unit and they were stacked like scrolls, looked like the ancient library of Alexandria if you look at them. looked like scrolls and tubing on the shelf. Somehow, the It
discarded tubes, the damaged tubes were set out to be destroyed, usually just cut up or squashed them, cut them with an abrasive cut off saw and take them to the trash. Some got
set aside and ended up back on my shelf or back in the shop. So when the inspectors came out they say, hey, look at this, you got this tube. right here. I say, no, I sold that. Well, you have one
I say, oh, I'm sorry, I said, that was one my
damaged tubes or my secondary tubes, tubes that weren't any good that wouldn't make spec. Q. Well, the ATF actually claimed that those tubes were
machine guns and made you abandon them, didn't they, sir? A. them. Q. A. Yes, sir. And abandoned them, I willfully abandoned
I even cut a few of them up while they were there. The ones that they found you abandoned, correct? Yes, sir.
Erb - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q.
627
Now, when you talk about scrolls, you're talking about
shelves and shelves or racks and racks of tubes that had serial numbers on them that had already been sold to someone else in your shop? A. Not shelves and shelves, it was only a handful that they I admit to making a mistake.
picked up. Q.
Well, I didn't ask you if you made a mistake, sir, I
asked you if you had duplicate serial numbers. A. And I said yes to your -- yes. I'll answer yes. There
were duplicate serial numbers. Q. And as we've seen, you sold, at least one example we saw, Do you
I think it was 694, E694 with just one cut in it. recall that? A. Q. A.
Do you need me to pull the exhibit back up? Yes.
I remember the tube that you put up. And --
It could have had an oversized slot, I don't know why it
didn't make -Q. Let me ask you a question, sir, I didn't ask you why you
sold it. A. Q. Okay. As a matter of fact, the ATF would call you up because
they knew you so well and they would schedule an inspection, wouldn't they? A. Q. Sometimes they would. Yes.
So you knew when they were coming out, it isn't like they B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Erb - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 would show up unannounced? A. Q. No. They would show up unannounced.
628
But there were times where they would call you up and
say, hey, we're coming out, be ready. A. Q. They wanted to make sure I was there. Well, did -- that's what you would call scheduling,
right? A. Q. It was scheduling. All right. Yes.
And one of those duplicate tubes that they
took, would you agree, sir, was serial number E699, manufactured around this period of time? A. Q. I don't recall the number, sir. Let me ask you, sir: Do you recall whether or not you
had duplicate tubes for E777? A. Q. A. Q. A. Q. It's been 20 years. E780? I do not recall any numbers. E736? Again, I don't recall the numbers, the serial numbers. So if I read off 20 or 30 more numbers it won't help your I don't recall, sir.
memory at all? A. Q. No, sir. And you don't dispute that you had duplicate serial
numbers for at least that many, if not more? A. How do you want me to answer that? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Erb - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. A. Truthfully, sir. It's not a yes or no. I want you to answer it truthfully, please. I manufactured a lot of receivers.
629
It is true that some
did not make the dimensional measurement, they were discarded. A new receiver was made in its place and put on the shelf before May 19th of 1986. Q. A. Well, let me ask you -The discarded tube was my mistake. I should have
immediately destroyed them.
I had nothing to hide from the I admit,
federal government, they came in, they found them. jeez, I made a mistake, guys. still here. Q.
This is why, this is why it's
Have you ever made an MK -- let me rephrase it because I Have you ever made a Sten
don't know the proper terminology.
that was too long, the receiver tube was too long, sir? A. I made a couple of long ones with the intent of building
the Sten Mark II S model. Q. Well, Exhibit 3.16 has a longer tube, does it not, sir,
than the other two up there? A. Q. Yes, it does. As a matter of fact, you were cited for having tubes in
your possession that were too long? A. Q. And I explained to them why I had them. I said were you cited or not, sir, for having tubes -B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Erb - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. A. Q. I do not recall if I was cited or not for those. Do you recall two E777s, sir? No, sir. Nor E755 or E736? You don't recall those tubes, sir?
630
I don't recall the numbers. As a matter of fact, the tubes that -- during one of the
compliance inspections about these serial-numbered tubes, the ATF just got a great big box and put all the tubes and all the items that were in question in a box, didn't they, sir? A. I remember them assembling a -- they went around the shop
picking here and picking there and picking stuff up off the weld bench, off the manufacturing shop, off some of the workbenches. Q. A. Q. A. Q. They put them in a box? They put them in a box. Sealed the box, right? I remember them putting them in a box. And later an ATF agent came and took the box for
examination; isn't that true, sir? A. Q. I remember them taking the box away. And everything that was seized and in the box was
ultimately abandoned by you; isn't that true, sir? A. I said -- I told them they were scrap tubes, they can I cooperated with them and I surrendered them.
take them, yes. Q.
They were abandoned by you? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Erb - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. A. Q. Abandoned. Yes, sir.
631
I think that's terminology that was used. Okay. And many of the tubes that they seized were appropriate
for just completion into a machine gun; isn't that true, sir? MR. KUMIEGA: To which we object, your Honor, unless
Mr. Martin specifies the date and time these violations occurred. It might be outside the framework of the E series,
it might be something that's not -THE COURT: Objection will be sustained. Let me ask you something, sir: Are you
(By Mr. Martin)
-- E601, that would have been about the right time frame, wouldn't it? A. Q. 601. Yes, sir.
And you had sold that receiver and it turned into a
machine gun that somebody possessed, right? A. I have no idea what I -- did I sell it as a -- did it go I can't
as a receiver or did it go as a completed firearm. answer that right now. Q.
Well, in truth and fact, the ATF seized the tube E601,
said it was a machine gun waiting to be completed, didn't they, sir? MR. KUMIEGA: Same objection, your Honor, unless he
can specify the time and place and date. THE COURT: Will be overruled.
Erb - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 then. THE COURT: Q. A. Q. (By Mr. Martin) I don't recall. Didn't they seize 601 from you, sir?
632
You don't know how many or what numbers they seized, do
you, sir? A. I do not have those records if front of me, sir. It's
probably a matter of public information. them. THE COURT: our break for lunch. MR. MARTIN: Okay, your Honor.
Perhaps you have
Mr. Martin, I think we're going to take
I'm ready to quit
I mean, are you going to go -- I have a Are you going to go five
12:30 matter I have to take care of. minutes or 25 minutes? MR. MARTIN: Let me say this:
If we recess I might go
a lot quicker than we go on. down. THE COURT:
I might can cull some of this
Ladies and gentlemen, we'll take our I would again
luncheon recess and we'll reconvene at 1:30.
advise you to not discuss the case among yourselves or with others or reach any conclusions until you've heard all the evidence and I've instructed you on the law. We'll be recess until 1:30. (A recess was had, after which the following was had in chambers:) B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
633 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: (Witness sworn) LENNIS SAVAGE, called as a witness, having been duly sworn to tell the truth, the whole truth and nothing but the truth, testified as follows: THE COURT: the bottom. THE WITNESS: It would be three-quarter of an inch That's the only place it Let's see what is scratched. Let me see Raise your right hand to be sworn.
from this surface done on an anvil. can contact.
So when you measure a tube, you want to do it
accurately, you do a three-point contact like that. THE COURT: So you had it like this? And you do rock it slightly.
THE WITNESS: THE COURT:
You weren't doing this it with it? No, sir. I was doing this and working
THE WITNESS:
down the tube, and you do rock it slightly with a little bit of thumb pressure on it so you get an accurate measurement. THE COURT: How would that scratch it? It rubbed on this anvil right here, this
THE WITNESS:
raised polished surface. THE COURT: Looks like it's a broader mark. Like I said, your Honor, I measured it
THE WITNESS:
and I would move it over a little bit, measure it a little, move it over and I kept working on across the tube specifically B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
634 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 starting right here all the way across it. THE COURT: I don't see any marks this way. This is just from a slight rocking, just And you notice, I'll show you, if it And
THE WITNESS:
a placement of the anvil.
was done with the edges it would be a real fine scratch. it's not, it's broad.
And it was done -- basically it has to
be three-quarter of an inch from this surface down because the way the circle is from the diameter. THE COURT: MR. KUMIEGA: Any questions? First of all, I would like to have the I
record reflect that Mr. Savage has a caliper micrometer.
have a Dixie cup and I'm going to have him take the calipers of the micrometer to show the, I guess the -THE WITNESS: MR. KUMIEGA: THE WITNESS: MR. KUMIEGA: Position of it? Would you call this the -Diameter. My understanding is what you're telling
the Court is you rocked back and forth. THE WITNESS: MR. KUMIEGA: Not that far. Hang on for a second, sir. The number
is 683, and you're rocking back and forth -- let me finish. You're rocking back and forth, how do you make the line go lengthwise instead of this way? THE WITNESS: MR. KUMIEGA: Easy. Show us.
635 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE WITNESS: This is not a perfect tube. As you've
got it placed on there, and I was on my knees doing it at the table, I'm watching the readout of the micrometer. And I'm
moving it over about a half a jaw width, move it a little bit to make sure it's settled and a true measurement, moving it over, settle, moving it over, settled, and went all the way across. MR. KUMIEGA: Let met ask you, Mr. Savage, as you're
moving it across do you notice the lines being left on the number? THE WITNESS: to the readout. No, I did not. I was paying attention This has
That's the important part for me.
got a 90-degree edge, but I'm assuming that's what happened. This edge right here. MR. KUMIEGA: THE WITNESS: MR. KUMIEGA: THE WITNESS: This is flat. That's flat. How can you leave a mark if it's flat? Put your finger out. If I go -- did you
feel the edge starting to dig in? MR. KUMIEGA: THE WITNESS: MR. KUMIEGA: THE WITNESS: No. Now? No. You're kidding me. You can't feel that?
I can't take it off your finger, it's not digging in? MR. MARTIN: I think we've had --
636 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. KUMIEGA: MR. MARTIN: Can I have the witness testify? May I have a timeout for a second? I think there needs to be an It's
been explained, Judge. instruction.
We have a half day, their agent, we had a witness I don't believe that's necessary. I
there, we've got a video.
think there needs to be an instruction given to the jury appropriately. But -Judge, we do have a videotape, but I
MR. KUMIEGA:
think the agent can tell the Court what he observed and there was Tim Kelley, the agent -MR. MARTIN: MR. KUMIEGA: THE COURT: Are they not here? Yes, they are. Outside.
Just one of them, Ed. Yes, sir.
MR. KUMIEGA:
(Agent Knopp brought into chambers) THE COURT: (Witness sworn) MR. COURT: THE WITNESS: THE COURT: State your name, please. Delbert Knopp. Raise your right hand and be sworn.
You observed the inspection by the
defendant's expert witness on the gun in question; is that correct? THE WITNESS: THE COURT: Yes, I was standing next to him.
What was your observation, and my main
concern is this mark, what was your observation? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
637 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE WITNESS: He took that tool and was measuring the
exterior diameter of the tube, and he had, he had placed it right over the start of the serial number towards the end of the barrel, and then drug it along the serial number. THE COURT: So, Agent, can you explain using this as
the barrel and the -THE WITNESS: operate this. Okay. If I can figure out how to This would be the end of the And
There you go.
barrel, he had it like this, and drug it along like that.
I think it was more like that with the sharp edge, when it was over I saw some black paint on the sharp edge. THE COURT: MR. MARTIN: THE COURT: Okay. No. Any other questions? No, your Honor. Any questions?
MR. KUMIEGA:
Your Honor, one question for the Agent. Did you hear any noises coming from that experiment while he was doing that? THE WITNESS: I was watching him do it. Agent Kelley
was here to the doorway and he heard a scratching, and that's when he was the first one to speak up and we told him not to do it again. THE COURT: Okay. Thank you, Agent.
(The following was had in open court, with the jury present:) B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Erb - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: Is Mr. Erb in the courtroom?
638 Mr. Erb, if
you'll come forward and retake your seat, and the Court would remind you you're under the same oath you gave as you began your testimony. THE WITNESS: THE COURT: cross-examination. Q. (By Mr. Martin) Mr. Erb, when you first took the stand Yes, sir.
Mr. Martin, you may continue your
earlier, you were looking at some firearms and I don't believe you found on either Government's Exhibit No. 7 or Government's Exhibit No. 6 your manufacturer's mark, did you, sir? recall that? A. Q. I don't see them on here. I think you indicated, and I know it was an assumption, Do you
but you thought they had been polished off or some reason they weren't visible. A. Q. Yes. Okay. Have you ever known that to occur with a serial Do you recall that?
number? A. Q. sir. A. Understand, these firearms are to represent a gun that And for a Would you like a definitive answer? I would like a definitive answer to every question I ask,
was made by a government to defend their country.
GI, these guns only came into the country by our returning B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Erb - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 gun. troops.
639
There were a few importers after the second world war There were desirable When they ran out and It was very
that brought them into the country. because you had a piece of history.
became scarce, the value of them increased.
advantageous for manufacturers in this country to build them. Again, they were not classed as curio and relics. new firearms that represented an older gun. These were
If a dealer had an
original World War II bring-back, the gun would be definitely more valuable than one that Charles Erb would have manufactured. So you make the gun look as though it's a World War II These guns are 20 years old now, plus. They've got
polished, they've got sandblasted, my markings have gotten thin or eliminated. And yes, I would concur it would be possible to It may be very faint or gone altogether.
lose a serial number. Q.
What do you do when you have a gun that the serial number
is no longer visible? A. If the owner is intelligent enough, he would either send
it back to the manufacturer, say can you refurbish the marks on this, which I have done. I've had firearms sent to me on Form
5s and said can you please refurbish this firearm for me, and I've done that. I've sharpened the markings, I've rephosphated
them, make them look as new. Q. A. And have you ever known anyone to just restamp them? I don't know anyone -- no one would admit that to me. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Erb - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. All right.
640
Now, the birth document of this shows that
from you, between you and Mr. Friesen, E683 went through, including the two of you, apparently four or five different owners. A. Did you see that, sir? The government -- the bureau and the
Yes, sir.
prosecuting attorney showed me the documents that all the hands that have passed through. me. Q. It would be fair to say, would it not, sir, that these And I have the documents in front of
firearms are not inspected, or the receiver, whatever stage it's in when it's transferred, is not inspected by the ATF from transferor to transferee? A. Q. A. Q. A. Q. That's correct, sir. So when you transferred it to, I think it was R.J. Perry. Yes, sir. ATF didn't come out and look at it, did they, sir? No, sir. And when J.R. Perry got it ATF didn't come out and look
at it? MR. KUMIEGA: speculation. Objection, your Honor. That's
I don't think Mr. Erb would know what happened as
the machine gun went down the line. THE COURT: If he knows, he can testify to it; if he
doesn't, he can say I don't know. Q. (By Mr. Martin) That's not common occurrence, is it,
Erb - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 sir? A.
641
For the government to inspect the firearm as it is being
transferred from dealer to dealer or from dealer to individual, no, it's not a common occurrence. Q. A. As a matter of fact, have you ever known it to happen? Yes, I have. Several occasions they've inspected the
firearm, for what reason, I don't know. Q. All right, sir. But you don't know that to have happened
in this case for sure? A. Q. No, sir. Now, I believe you indicated that back in May of 1986 you
were trying to make as many of these as possible; is that correct? A. Q. That's correct. And you've characterized it you made some mistakes,
right? A. Q. Yes, sir. And as a matter of fact, ATF came out and did an
inspection on the 7th, 8th, and 9th of May of 1986, of your location, did they not, sir? A. Q. Yes, they did. And they were looking at in the neighborhood of 800 to a
thousand tubes during that inspection process? A. Q. That's correct. And of those tubes, 250 of them were series E501 through B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Erb - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 E760, weren't they, sir? A. Q. A. Q. In that serial number range. Okay. There were some in that range. Yes.
642
And after they left on the 9th, you were told that you
had many, many tubes that you had already registered, as a matter of fact, all 250 of those Sten tubes had to be redone, didn't they, sir? A. They had -- they had to have additional work performed on
them to meet with their standards. Q. A. Q. A. All -That's what they told me. All 250 of them? That's approximate. I don't know the exact number, but
it was a sizable block. Q. Actually, I think I said it wrong. Okay. And the ATF
then came back at a later date and did a spot inspection of some of your guns; isn't that true, sir? A. The ATF came back and they looked at them all. Peter
Rubis came back and looked at them, sir. Q. Well -MR. MARTIN: May I have a moment, your Honor? I'm
having a difficult time reading the document. THE COURT: (Brief pause) B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603 Yes.
Erb - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 him. Q. (By Mr. Martin) Q. A. Q. (By Mr. Martin)
643
In truth and fact, sir, on May 16th when
Peter Rubis came out, he found that there were 250 MK II tubes that were not completely manufactured, that's on May 16th, didn't he, sir? Do you recall that? May I approach? Yes. Okay. Do you recall that? I remember him coming out, but I
MR. MARTIN: THE COURT: THE WITNESS: (By Mr. Martin)
I don't recall that.
don't recall the exact date, sir. Q. Let me ask you this: If you need a magnifying glass
because this is a very bad document -- do you recognize that signature right there, sir? need it. A. Here's a magnifying glass if you
I've highlighted it for you. Yes. There's Charles Erb, owner, and then
Okay.
underneath that is, there's a signature, Peter Rubis. Q. A. Do you see the date on it right there? Yes, it's 5/16. MR. KUMIEGA: Your Honor, may the United States
inquire what document it is, or Bates stamp? MR. MARTIN: Let me borrow the document and show it to
What I'm referring to, sir, is that on
May 16th, you and Mr. Rubis, I'm looking at what it says, registered 250 Sten Mark II tubes, nine millimeter serial B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Erb - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
644
number 501 through 750 on ATF Form 2s dated 4/20/86, were not completely manufactured NFA firearms; is that right? A. Q. A. Q. That's true. I see that.
And the date is May 16th, 1986. Yes, sir. That was two days after you had already told us these
forms, these firearms had been inspected on May 14th, right? A. That was the date, May 14th was the date that I had
submitted my amended Form 2s. Q. Right. Two days prior to the report by Mr. Rubis, to the
ATF agent? A. Q. Okay. And you were not inspected again until 1988; isn't that
true, sir? A. I don't recall the dates. I recall Peter Rubis's words
which were -Q. A. work. Q. A. Q. Okay. Yes. And would you dispute the ATF records if they said your Do you recall him inspecting you in May of '86? Do you recall him inspecting you in May of '86? Yes. He said to me, sir, he said, Charles, finish the
next inspection wasn't until '88? A. He was back again, it wasn't an official inspection.
They came back and did an inventory, complete inventory in '88. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Erb - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. That's what I said.
645
Would you dispute the records if you
weren't inspected again, according to the records, until 1988? A. Q. For a full inspection, I believe it was 1988. Now, this series of firearms, E501 through 750, which
includes the serial number of Exhibit 3.1, has caused you, it's caused you a difficulty ever since these tubes have been made; isn't that true, sir? A. Q. I'm sorry. It's caused me difficulty?
You've had numerous violations over these same tubes over
and over and over again; isn't that true? A. Q. That's not true. In truth and fact, sir, in 1996, these same tubes, these
same numbered tubes, 501 through 760, you were cited for because the firearms and serial numbers were not legible; isn't that true, sir? Do you know that? I've got something to
refresh your memory if you need it. MR. KUMIEGA: Your Honor, can counsel show the
government the document they're referring to? THE COURT: Mr. Martin, if you would show Mr. Kumiega
before you approach the witness it would be helpful. MR. MARTIN: I've got 800 pages of report they've
provided me, your Honor. THE COURT: We don't need comments, but before you
approach the witness as a professional courtesy show the government what document you're questioning him about. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Erb - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. (By Mr. Martin)
646
Again, Mr. Erb, do you recognize that
signature right there? A. Q. Of course. That's yours truly's signature.
And you recognize this as being a Department of Treasury
ATF report of violation, do you not, sir? A. Q. A. Q. A. Q. Yes. And can you read the date, May 6, 1986? 1996. '96. Yes. And one of the violations is failure to properly mark NFA I apologize. Thank you.
firearms on machine guns Sten Mark II E555 or 565, serial number not legible, model designation missing on serial number E777, E780, E736, E765, E578, E555-565, E576, and I believe that's all the Stens; is that right? A. If you noticed under the corrective action, if I may,
said (reading) each manufacturer shall identify firearm manufactured by a serial number which may or not readily be removed, obliterated, or altered, the name of the manufacturer, caliber are required, the markings be placed so they are conspicuous regardless of the stage of completion. The markings on the firearms that are in question here were faint. They asked that I deepen the markings and make I agreed to that.
them clearly legible. Q.
At first I though you didn't even remember this event, B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Erb - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 and suddenly you remember it clearly? A.
647
It's just that they asked me to correct that, and under
Freedom of Information Act, anyone has access to these documents. Q. A. Do you recall this event in 1996? Yes. They asked me to clarify some of the markings. I
agreed to it. Q. And, well, they cited you for a violation, they didn't
ask you to clarify, they gave you a violation report; would you agree with that, sir? A. Q. A. A violation report. All right. And with that they said would you please comply with it, Yes, sir.
I agreed to it, that I would comply with their wishes. Q. Do you know the consequence of failure to comply with
their wishes, sir? A. Q. Yes, I do. Okay. I'm fully aware of it.
You would lose your license and you may be
indicted; isn't that true? A. Q. That's true. And if you make a mistake or made a mistakes on one of
these guns and ATF didn't catch it, like they caught so many of them, somebody else might get indicted, mightnt they, sir? MR. KUMIEGA: Objection, your Honor. Speculation, and
it's not a proper statement as to the law. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Erb - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. that. Q. the law. THE COURT: Q. THE COURT: Be overruled.
648
(By Mr. Martin)
If you made a mistake, sir, on one of
these guns and the ATF didn't catch it, somebody else might get indicted for your mistake; isn't that true, sir? A. I think you're being pretty hard on the Bureau of They have a lot of leeway,
Alcohol, Tobacco, and Firearms. sir. Q. I'm asking you, sir:
If you made a mistake and the ATF
didn't catch it, like they caught so many of yours, somebody might get indicted; isn't that true? MR. KUMIEGA: Objection, your Honor. Misstatement of
I don't know that he's qualified to answer
There's no foundation that he's qualified, Mr. Martin. (By Mr. Martin) MR. MARTIN: THE COURT: Now -May I have just a moment, your Honor? Yes.
(Brief pause) (By Mr. Martin) Mr. Erb, I think you testified that, I
want to make sure I understood it, that unless your recollection is better now, after the May 7th, 8th, and 9th inspection, the ATF came back and inspected this entire 250 series of Sten receivers? A. Yes, sir. Peter Rubis came out and looked at them, and
it was on or before the 19th. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Erb - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. And they approved every one of them? He said, you did a lot of work here, I can tell.
649
And he
looked at them. Q. them? A. Again, it's been 20 years. It's hard remembering exact And he -- my question was: He approved every one of
dates and figures and what transpired. Q. Well, you said Peter Rubis said you did real good work.
You remember that part? A. I came to know Peter Rubis because he was always the
agent that was inspecting me and head of the inspection department. It wasn't just Peter Rubis, there was several
people that he brought with him. Q. If that occurred, I'm going to ask you how on earth did
this pipe with one cut in it get approved by the ATF when they have to have a minimum of four? A. Yes. I can see the number. E694. Can you see the number?
Again, I've been to, just I toured the valley, When
came back two weeks ago, I was in Europe.
I toured the Gardone Valley Trompia, Beretta facility.
Beretta makes a mistake on a receiver, if it's not correctable they scrap it. been to Marlin. It goes in a big bin. I've been to Ruger, I've
When I was at Ruger I went through there
armorer's school and I saw receivers stacked up in a scrap bin, had numbers on them, and the guy conducting the tour, I said what are these? He said ones that didn't make the grade. I
Erb - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 said what will you do?
650
We'll make a replacement receiver and It's funny you
we'll reapply that number to that firearm.
should ask that, he said, because we keep our numbers consistent and we'll destroy these. Same thing happened to me. I made guns that didn't make
the grade that possibly had a cocking slot that was too wide, could never possibly work. Q. I cast it aside.
Is it your testimony that Peter Rubis approved that pipe
with one cut in it as a Sten, sir? A. No. Peter Rubis wouldn't do that. He wouldn't approve
that as a cut, as an approved gun. sir.
No, it's not my testimony,
The ATF went through my shop and picked up numerous
receivers that were damaged. Q. A. Q. A. Q. A. rack. Would you look at the monitor? Sure. You registered that? Okay. That piece of pipe with one cut in it right there? There's probably another one just like it in the good That was in the bone pile. Could possibly have been in
the bone pile. Q. A. Let me ask you a question, sir. I don't recall, sir. But I scrapped a lot of tubes that
were, just wouldn't make the grade. Q. This is the only 694 we've been provided in this case, B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Erb - Cross/Redirect 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Q. A. BY MR. KUMIEGA: Q. all right? A. Q. Okay. I believe your testimony on direct examination was we
651
never put the serial numbers on a tube until it's complete. That's not a complete tube, is it, sir? A. Q. Doesn't appear to be. You understand, you may think that's scrap, but that
picture is somebody's lawfully registered Sten today, sir. A. I can't argue, I can't put up an argument for that, sir. MR. MARTIN: (Brief pause) MR. MARTIN: THE COURT: Nothing further. Any redirect, Mr. Kumiega? Yes, your Honor. REDIRECT EXAMINATION One moment, your Honor.
MR. KUMIEGA:
This exhibit has your serial number on it; is that right,
Mr. Erb? A. Yes. MR. KUMIEGA: (By Mr. Kumiega) Yes. MR. KUMIEGA: (By Mr. Kumiega) And pull back a little bit. Let me ask you this: If that's the Focus on that serial number, please. E694; is that correct?
only cut on that tube, is this a functioning machine gun? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Erb - Redirect 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. Absolutely not. No.
652
It's not a functioning machine gun.
So this thing doesn't even work, it's not even a machine
gun; is that right? A. Q. A. Q. It's a receiver that's part way there. All right. Why would somebody have that then?
I have no idea. Okay. Now, let me ask you this: When you manufactured
your guns in '86 and went down the stream of commerce, you don't know what happened to the firearms, do you? A. Q. I had no control over them. For instance, let's look at Defendant's Exhibit 43, Now, you characterize that firearm as a particular
please.
brand of something; is that correct? A. It's a Sterling gun. MR. KUMIEGA: (By Mr. Kumiega) Next page, please. It's got a serial number; is that
correct? A. It's on the mag housing. MR. KUMIEGA: the next one. And go to the next one, please. Go to
Let's look at Defendant's Exhibit 44, please. Stop right there.
The next photograph, the next photograph. Could you blow that up, Bonnie, please? Q. A. Q. (By Mr. Kumiega) No, sir.
Is that your handiwork?
Did you put that on the machine gun back in '86, in May B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Erb - Redirect 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. please. Q. (By Mr. Kumiega) of '86? A. No. Again, I addressed Mr. Martin, looks like a It's just not consistent
653
billboard on the side of the gun. with my work.
But it's obvious that someone wanted to clearly
define the markings and the manufacturer. Q. Okay. MR. KUMIEGA: Let's look at Defendant's Exhibit 43,
Mr. Erb, this is marked as Defendant's Mr. Erb, if you
Exhibit 43 and the Bates stamp is FRI760.
could look at the R number, there's an R and some serial numbers to the right. MR. KUMIEGA: photograph justice. THE COURT: MR. MARTIN: MR. KUMIEGA: (By Mr. Kumiega) Your Honor, the screen is not doing the May I approach the witness, please? Yes. What's the Bates number? 0670. Remember --
Yes, we spoke of this. -- you spoke about that. And you were going over some of
the exhibits that defense was going to proffer for the case, and you noticed something that had the number DLO on it; is that correct? A. Q. Yes. Can you tell us about that? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Erb - Redirect 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A.
654
That's another manufacturer, and he is up in Connecticut, He's an old-timer as He's in
and I know this gentleman, I've met him. I am.
And "DLO" stands for Douglas Lawrence Offenger.
Stamford, Connecticut. guns over the years.
He's built numerous Sten guns, Browning He put
And he did mark the receivers.
his markings on the trigger assembly. Q. All right. The point is, is that your handiwork then in
that government's exhibit? A. Q. A. Q. On this? Yes. No. This belongs to Douglas Lawrence Offenger.
But somehow it's registered under you or is there some
type of confusion? A. I don't believe this was my gun. It's not my firearm. I
know it's not my firearm. Q. All right. And you said that the photograph in
Defendant's Exhibit 44, where it looked like a billboard, that's not your handiwork; is that correct? A. Q. No, sir. Okay. Now, Mr. Martin said that you were inspected in
1986, and the subsequent inspection was in 1988; is that correct? A. Q. A. Yes. So there's a two-year lag time; is that correct? Yes. They came-- they made an inspection just to ensure
Erb - Redirect 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that the firearms had been completed.
655 I don't think they made
a report, they didn't give me a report, but they came out and looked through the stacks of tubes. Q. Okay. When Mr. Martin cross-examined you about failure
to properly mark NFA firearms on numbers and mentioned the Sten machine guns, the Sten Mark E55 or 6 -- I mean 565. A. The markings were faint, and they considered them too
light, they should be deeper. Q. All right. Let me ask you this: These were firearms in
your shop; is that right? A. Q. Yes, sir. These are not firearms that went out in the stream of
commerce? A. Q. No, they did not enter commerce. During the course of your being inspected by ATF, has
there ever been a firearm that was bought by someone and the serial number was improperly placed or improper? A. Q. No. I made sure they were in there quite deep. So my point then, Mr. Erb, is that the
All right.
firearms that you submitted that went in the stream of commerce -A. Q. May I return this to you, sir? Yes. Give me a minute.
The numbers that you were flagged for were numbers that never left your shop; is that correct? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Erb - Redirect 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. A. That's correct.
656
If you notice on the document there were There's an
other firearms, other models besides Sten Mark IIs. M60 on there, I tell from the serial number. Q.
This is some ten years later on after you manufactured
the E series; is that correct? A. shop. They were still sitting in my racks, still sitting in the And they inspected them and said the serial numbers are
very light on these and not legible. Q. All right. MR. KUMIEGA: THE COURT: Your Honor, may I approach the witness? You may approach. For the rest of the story, Mr. Erb, can
(By Mr. Kumiega)
you read the regulation that you're supposed to fulfill on that document that you were cross-examined with? A. Q. A. Okay. How about to the left here also?
Start with the right first. All right. "Each manufacturer shall identify a firearm manufactured by a serial number which may not be readily removed, obliterated or altered by the name of the manufacturer, caliber and model. Required
markings must be placed so they are conspicuous regardless of the stage of completion." All right. That's the rule; is that correct?
That's correct, sir. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Erb - Redirect 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. And out of the hundreds, or the many hundreds, almost
657
thousands of firearms you manufactured, are they citing you for these, for maybe ten violations? A. Q. A. There's 25-odd firearms on there, various models. Why don't you read the whole statement into the record. "Failure to properly mark the NFA firearms on Sten Mark II," and a number "555, or not legible 565, not Legible, serial number not legible, Sten Mark II E705 or 706." They couldn't distinguish which one it was. (Reading) model designation, missing serial numbers E777, E780, E736, E765, E576, E555, E565, E576, 356E, and 356 was an MP40, 331E, an MP40, 470E is an MP40, 383 also is an MP40. 232E, 14886, I believe. That's a Browning gun. C92270 is M60.
s2200332 is an M250, and caliber information not visible on the C92270, 148876 and 4936. Q. Let me ask you this: One of your numbers was E705; is
that correct? A. Q. A. Q. Yes. Which is Government's Exhibit No. 8; is that right? 705, sir. They are citing you for Government's Exhibit No. 8
because the serial number is too faint; is that correct? A. Q. It's faint on there. And that's why you -- you, in fact, gave this to Agent B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Erb - Redirect 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Knopp as an example of your work; is that correct? A. Q. Yes, sir.
658
So, in fact, in truth and fact, this serial number has to
be like 682 and 685? A. Q. Has to be deepened before it goes out the door. They rejected this because of the faintness; is that
correct? A. Yes. Until I chalked it for them. When I chalked it, it
became visible, sir. Q.
Sir, your documents.
How would you make Government's Exhibit No. 8 better?
What would you do? A. I would use this set of dies that I have here and I would
deepen the numbers. Q. Let me ask you this: You never sent out any duplicate
serial numbers in the stream of commerce; is that correct? A. Q. Absolutely not. Did you ever send out a machine without a serial number
at all? A. Q. No. How come they waited two years to inspect you, from 1986
to 1988, if you know? A. When I spoke to them, and Terry Cates, I went to visit
Terry Cates in DC, and he said, Charles, you're good to go. MR. MARTIN: to say, Judge. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603 I'll object to anything Terry Cates had
Erb - Redirect 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Q. THE COURT: disregard. THE WITNESS: (By Mr. Kumiega) MR. KUMIEGA: 1.5, please. Q. (By Mr. Kumiega) 683 is going to be the gun you I was instructed by the ATF -Mr. Erb, please. That will be sustained. The jury will
659
Now, going back to Form No. 2 in Exhibit
manufactured; is that correct? A. Q. Yes, sir. All right. There's a listing on it. And you manufactured it as Mark II Sten or
Sten Mark II according to the column? A. Q. Yes. Government's Exhibit 3.16, the thing that looks somewhat
like a Mark III. MR. KUMIEGA: (By Mr. Kumiega) Can you pull that up again, please. Is there any doubt in your mind that
you did not manufacture that gun? A. Number one, the serial numbers are not my serial numbers. They are
I would not use a large serial number that size.
applied extremely cockeyed, crooked, by an amateur who didn't know how to use a hand stamp. The mag housing is not the mag It's a -He didn't
housing that I would have attached. MR. MARTIN:
Your Honor, I object to that.
make the gun, he made the Sten, now he's talking about the manufacture of the firearm. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Erb - Redirect 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. MR. KUMIEGA: He's a fact witness. He can decide
660
whether or not that's his handiwork. THE COURT: MR. MARTIN: THE COURT: That's overruled. He's talking about the receiver. Objection will be overruled. Continue, Mr. Erb.
(By Mr. Kumiega)
The mag well opening was done with a saw, we never cut The welds are extremely crude, which if
mag wells with a saw.
I sold a receiver it was up to the secondary manufacturer, he could weld it any way he would like, so that's not an issue. But it is the fact that this mag well was cut with a hacksaw or power saw. Not consistent with any receiver that I've ever
manufactured. Q. Let me ask you this, sir: Regarding a transfer of a
firearm, there's been testimony almost replete that the government will collect data and keep each NFA weapon separate by themselves, each serial number is like the DNA for each firearm; is that correct? A. Q. And it's -- it is unique to that particular firearm. Have you ever been called by ATF, by, I guess the
licensing people in Washington or wherever and say there is two E numbers or any duplicate Erb firearms out there in the stream of commerce? A. No, sir. MR. KUMIEGA: If I may have a moment.
Erb - Redirect 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Honor. MR. KUMIEGA: THE COURT: MR. MARTIN: I have nothing further, your Honor. Any recross? Q. Q. THE COURT: (Brief pause) MR. KUMIEGA: THE COURT: Your Honor, may I approach? Yes. Sir -Just a minute, sir. E682 and E685. Yes.
661
THE WITNESS: (By Mr. Kumiega) MR. KUMIEGA: (By Mr. Kumiega)
If we can put that back up. E682 and E685 is your handiwork; is
that correct? A. Q. Yes. And E705, part of the department's notice or report of
violation, again, is your handiwork; is that correct? Government's Exhibit No. 8. A. This is my receiver. This is Exhibit 8. Yes. This is
my receiver. Q. All right. The point is, Mr. Erb, you made all these and
these were approved by inspectors from Pittsburg; is that correct? A. Q. Yes, sir. Is there any doubt in your mind that E683 is your gun? MR. MARTIN: He's already testified to that once, your
All right. Yes, sir.
Erb - Recross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. A. Q. BY MR. MARTIN: Q. RECROSS-EXAMINATION
662
Were you aware that the ATF in many reports wrote that
the presence of duplicate firearms and a number of firearms sold by Mr. Erb then transferred back to him make them wonder whether or not he's making more than one firearm with the same serial number. A. Q. No. We were talking about the fact that -MR. MARTIN: (By Mr. Martin) Yes. What's the serial number on Government's Exhibit No. 8? It's faint. Okay. I chalked it so I could read it. E705. If I may approach. May I see Exhibit 8. Are you aware of that, sir?
Is that your tube, sir, this one here?
The report Mr. Kumiega just had you read a while
ago led me to believe that this was the tube that was referred to in that report. A. Q. A. Q. May I? Is that what it led you to believe, sir? I don't have the report in front of me to refer to, sir. All right. Well, let me show you. The report that you Is that what it led you to believe?
read a while ago says that, "failure to properly work NFA -mark NFA firearms on numerous occasions, Sten MK E555 or E565, serial number not legible, Sten MK II, E705," but it goes on, or 706. "Serial number not legible."
Erb - Recross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 No. 43. Q. (By Mr. Martin) A. We don't have an E706 up here, do we, sir?
663
Not to the best of my knowledge we don't have one here.
The 5 on there has a flat top on it. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. This talks about 705 or 706. We don't know which one?
They were confused, sir, when they looked at it. I'm asking you about the report. Okay. You signed this report? Yes. All right. Yes, sir. Now, we don't know which one that is, do we, sir? I know. You know? Yes. I see. Let me ask you, sir -If we can put up Defendant's Exhibit It also talks about a 706, right?
MR. MARTIN:
I think it's still in front of you, the Exhibit No. 43.
one Mr. Kumiega showed you.
Do you remember Mr. Kumiega showed you a picture of that firearm, and in particular, in particular I showed you a three-page document I think you have in front of you. see that, sir? Do you
Do you see a document that looks like this, a
picture, a black and white picture? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Erb - Recross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. Yes. I have that.
664
Mr. Kumiega showed that to you and you gave a little
speech about how this DLO stood for a particular manufacturer who was a friend of yours that put the serial number on the trigger guard or trigger cover, right? A. Q. Yes, I did. Yes. Do you recall that?
You know that you cannot put a serial number on a trigger
guard, it has to be on the receiver, don't you, sir? A. Q. According to regulations, should be on the receiver. And that wouldn't be appropriate, would it, sir? That
wouldn't be appropriate, would it, sir? A. Q. A. It would be more appropriate to be on the receiver. By law you had to put it on the receiver? I'm not seeing a number, if this is, in fact, the serial Is that the serial --
number underneath the selector button. we don't know. Q. A.
We haven't established that.
You testified about a DLO, that's the only number on it. Yes, sir. We're talking about the DLO markings on the
side of the trigger housing, not on the receiver. Q. Right. MR. MARTIN: (By Mr. Martin) Now, if we could put 43 back up. You said that's not your gun. Do you
recall that? A. The DLO, Stamford, Connecticut. It doesn't appear to be
my gun.
I cannot identify it from the picture that I've been
Erb - Recross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. Q. Q. shown. Q. You know that the ATF went all over the United States
665
taking pictures of your E series -MR. KUMIEGA: THE COURT: MR. KUMIEGA: Objection, your Honor.
What's the objection? The objection is, your Honor, that
government went around the country as for investigative reports. THE COURT: MR. KUMIEGA: testimony. Honor. THE COURT: Objection will be overruled. Do you know that the ATF went all over Excuse me. Go ahead.
Not for the purpose of forensic
That's the same objection we had before, your
(By Mr. Martin)
the country finding all the E number guns, sir? A. Q. That's their prerogative, I believe. And do you know that -MR. MARTIN: (By Mr. Martin) If we can go to the next picture. -- that this is a picture of the same
gun and the right -MR. MARTIN: (By Mr. Martin) Yes, sir, I do. And as a matter of fact, that's one of the guns that you If we can zoom in on the E688. Do you see the E688?
registered on May 14, 1986, isn't it, sir? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Erb - Recross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Could very well be. And that would make it your gun, wouldn't it, sir? Would be a receiver that I had manufactured, sir, to
666
correct your statement. Q. Well, let me correct it then. That would be your
receiver then, wouldn't it, sir? A. Without having it in my hand to identify it, it would
appear to be my receiver. Q. Well, didn't you tell the jury that you're the only
person that can use those E688 or E numbers? A. No. I said I utilized that E number to identify my
firearms. Q. Now, the E705 that we talked about earlier, or 607,
whatever the number is, you testified that that -- you testified that there were at least 25 violations of guns that were inappropriately marked or something on that form in 1996; is that right, sir? A. I've recounted. It was probably 22, 23. We're close.
We're in that particular ball park. Q.
The markings were faint.
And of those guns, sir, those were just guns you had in
your possession, that's not the guns you had sold, right? A. These were receivers, unfinished firearms. These were
receivers that they had picked out and instructed me to mark them deeper and more legibly. Q. Those were just the receivers you had in your possession, B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Erb - Recross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
667
not those that you had -- not those that you had already sold, the hundreds had hundreds you had already sold? A. Q. These were receivers that were in my possession. And was it your testimony on direct examination that
today your receivers are worth 3,500 to $5,000? A. Q. A. No, I did not say that. How much are your receivers worth today, sir? I said the completed firearms, completed firearms were Completed firearm.
worth between 3,500 to $5,000. Q. A. Q. A. Q. My question is -How much is a receiver --
-- how much is a receiver worth today, sir? A receiver would be worth somewhat less than that. Well, how much would you sell me one today for, sir,
right now? A. A Mark II receiver, you would spend 2,500, $3,000 for a
receiver. Q. A. Q. 2,500 to 3,000? Yes. Okay, sir. And you said the unique thing that tells you
why 6 -- excuse me -- Exhibit 3.16 is not yours, one of the unique factors is the mag well cut, right? A. Q. That's correct. That's because, sir -MR. MARTIN: Could we see that 45 exhibit I had you Is that right, sir?
Erb - Recross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Q. put up earlier? Q. (By Mr. Martin) That's because, sir, E694 that I can
668
purchase for 2,500 to $3,000, you didn't even cut a mag well in that one, did you, sir? A. Q. How did you come by this? You didn't tell me.
Sir, I believe the ATF went all over the United States
looking for all your E series, and that is a photograph they provided me. MR. KUMIEGA: foundation. THE COURT: Overruled. And somebody has that registered to them Same objection, your Honor. No proper
(By Mr. Martin)
as one of your receivers and it doesn't have a mag well cut in it, does it, sir? A. From here I can't tell that it has a mag well cut. MR. MARTIN: MR. KUMIEGA: MR. MARTIN: (By Mr. Martin) Are there any other pictures of that? No. That's just the serial number. Those are the only pictures that have But it's pretty obvious a mag
been provided to me, those two.
well cut, this is the cut we see, isn't it, right here (indicating)? A. Q. A. Is that the mag well right there? The left side.
Yes, it is.
Pretty obvious? The right side is the ejection port. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Erb - Recross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Q. A. Q. This is the mag well? Mag well is on the left. All right.
669
Doesn't have an ejection port on it either,
does it? A. Q. A. Q. That's true. Doesn't have a -That's just the safety notch. The safety. If I own that tube and I want to make it or
manufacture it into a complete firearm, I can cut a magazine well out with a hacksaw and weld it on there as crudely as I want, and it's still E694 just like that one, and it's your tube, isn't it? A. Q. How could you account for the overall length of the tube? It's your tube, isn't it, sir? MR. KUMIEGA: THE WITNESS: (By Mr. Martin) Objection, your Honor. It's not my tube, sir. That one right there, if I cut a mag
well out with a hacksaw and weld a magazine on there, that is still your tube, isn't it? A. Without having that in my hand, I cannot identify that as
my tube. Q. If that is your tube and I want to manufacture it into a
Sten II, I can take the hacksaw and cut it and weld it just like 3.16, can't I, sir? A. How would you explain the length, sir? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Erb - Recross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. I asked you if I can do something.
670 Could you just answer
my question? A. Q. A. Q. A. Are you a manufacturer? Do you want to assume I am? If I were to assume you are. Sure. You can be a manufacturer, and you would have the
prerogative to do that. Q. A. Q. And weld it just like 3.16? You could do that, but how do you explain the length? When you become a lawyer you can ask questions, when I
become a manufacturer, I'll make guns. MR. KUMIEGA: THE COURT: Objection, your Honor. Argumentative.
The witness needs to answer the questions
and not ask questions. THE WITNESS: MR. MARTIN: (By Mr. Martin) Yes, sir. Could we see E694 again? Sir, is a Sten tube 11 1/2 inches long? I don't know. I don't have
We're getting close to it.
my measuring stick with me.
I'm not privy to my original
prints and drawings that I worked off of. Q. And you've had tubes, Sten tubes seized by the ATF that
were too long; isn't that true, sir? A. Q. That were too long? Yes, sir. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Erb - Recross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603 A. Q. I don't recall.
671
Are you familiar with Sten tube E777 and given to the ATF
because it was too long, longer than all the others? A. To the best of my recollection, I don't remember the
exact serial number and why it was seized. Q. But it would be fair to say you've had so many seized and
abandoned so many you don't know all the violations you committed? MR. KUMIEGA: Objection, your Honor. I would like to
have the Bates stamp number. THE COURT: MR. MARTIN: THE COURT: Will be sustained. 3002. Nothing further.
Sir, you may be excused, and I would
advise you you're not to discuss the testimony you've given here today with other persons who may be a witnesses in this matter. THE WITNESS: THE COURT: Thank you, sir.
You may be excused.
Call your next witness. MR. KUMIEGA: Grant Kemmerer. The United States would like to call
Kemmerer - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. KUMIEGA: Q. Sir, can you introduce yourself to the jury and spell GRANT KEMMERER, called as a witness, having been duly sworn, testifies as follows: DIRECT EXAMINATION
672
your last name for the record, please? A. Q. A. Q. My name is Grant L. Kemmerer, Jr., K-E-M-M-E-R-E-R. Sir, how are you employed? I'm employed by a construction company in Miami. And is that currently -- what type of construction
company are you employed by, please? A. Q. A. Swimming pools. How long have you been in that business, please? I've been in that business with this company ten years,
and the construction industry probably thirty-five years. Q. Is there some point in your professional business you
were a licensed firearms dealer? A. Q. A. Yes, sir. Can you tell the jury about that, please? For approximately ten years I was a licenses Class 3 I dealt in firearms like the ones in front of me. I
dealer.
bought and sold, we had a license through Alcohol, Tobacco & Firearms. At one point in time I lost interest in it, so to
speak, and I dropped my license. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Kemmerer - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. What time frame, sir, did you sell machine guns? Probably mid-'80s to late '90s. All right.
673
And let me -- where was your office located?
Did you have a shop or something? A. Q. No. It was in the house. And what did you do with the guns that you
All right.
brokered, please? A. Q. A. Q. A. Q. I'm sorry. I missed part of it.
Did you manufacture firearms? No, sir. I just bought and sold.
You were a broker; is that correct? Yes. And were you -- what level of firearms transactions did
you engage in? A. Volume level was, you know, low level. I wasn't, you
know, I -- I probably in all the years I was in the business maybe 450 transfers. Q. A. Q. All right. Maybe like 30, 40 a year. Okay. And you said you officed out of your house; is
that correct? A. Q. Yes. Did you -- once you got a machine gun, did you ever add
or subtract anything from the machine gun? A. No, sir. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Kemmerer - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. gun. Q. All right. And if you flip through that document, is Q. A. News. What would you basically do then, please?
674
Basically, I ran an ad in a trade paper called Shotgun People would call me up and say this is what I have, I
had a business, so I looked at, you know, whether I would make money or not. I was wasn't going to buy something for a
thousand and sell it for 800, but if the gun seemed okay, you know, which is just verbal over the phone because you don't get to see the pieces, I would go ahead and we would start the paperwork and I would buy the piece. Sometimes I had, you
know, I had someone to sell it to right away; other times it would go in inventory and maybe be is there a week, a month, six months. MR. KUMIEGA: Your Honor, may I approach the witness
with Government's Exhibit 45? THE COURT: You may approach. Sir, do you know what this is, please?
(By Mr. Kumiega)
It's documentation on a particular subgun, submachine
your name on any of the pages in that document, please? A. Q. A. Yes. Yes. Yes, it is.
And what is that document detail, please? The document details that I purchased a particular gun,
which is a submachine gun nine millimeter, serial number 683, from a gentleman named R.J. Perry & Associates in Parkridge, B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Kemmerer - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Illinois. I think Mr. Perry is now deceased.
675 It came, it was
transferred into my inventory, and from my inventory -- came into my inventory in October of '92, and it went out of my inventory in November of '92 to John Guy Walker, which really was Birmingham Pistol Wholesale. Q. All right. I want you also to also look at Government's
Exhibit 1.4 and 1.6. MR. KUMIEGA: Your Honor, may I approach and find
those documents for him? THE COURT: Yes. I'm handing you, sir, Government's Can you see if your name appears on both
(By Mr. Kumiega)
Exhibits 1.6 and 1.4.
of those government's exhibits, please. A. Yes, it does. It appears in two places: One when I
acquired the particular piece, and one when the piece was removed from my inventory. Q. A. Q. A. That's in both Exhibits 1.4 and 1.6; is that correct? Let me look in the second one. Yes, sir. Yes. My name appears twice: Once when it came to me,
and once when it left. Q. All right. At one time you purchased three, more than
three machine guns from a Mr. Perry from Chicago; is that correct? A. Yes, sir. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Kemmerer - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. Do you remember those transactions? Yes. And the E numbers that are in front of you, just to
676
verify it, is that E683, E682, and E685? A. Q. A. Q. A. Yes, sir, it is. Mr. Kemmerer, did you buy these firearms in lots? Yes. About how many machine guns did you purchase, please? These particular guns I bought in a lot, but there were There was probably 50
times I did, you know, single purchases. or 60 pieces in the lot, sir. Q. date? A. Q. Yes.
Did you buy 682, 685, and 683 from Mr. Perry on the same
And did you in turn sell those same firearms, E682, E685,
and E683 to a shop in, I think, Birmingham, Alabama? A. Q. Yes. All right. Now, you testified you didn't do anything to
the firearms; is that correct? A. No. THE COURT: Excuse me, Counsel. Yes, your Honor.
I don't know when he says no, no, that's
not correct or no, he didn't do anything to them. THE WITNESS: No, I didn't do anything to them. Now,
Kemmerer - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
677
the only thing I did was to move it from one, from my inventory to Birmingham Pistol Parlor there has to be the appropriate paperwork. I can't just send them off. There has -- the
paperwork has to go to Washington, it has to approved and has to come back. Once that's done, then the gun moves from myself
to the next person, which would be Birmingham. Q. (By Mr. Kumiega) The lot that you bought from Mr. Perry,
were they associate with a particular manufacturer of machine gun? A. Erb. Q. A. Q. A. And have you dealt with Erb firearms in the past? Yes. Oh, yes. Is -- is Mr. Erb known in the industry? Yes. Everything was through a gentleman named Charles
All right. Yes.
He's, you know, he's a, sort of a legend in the Everybody knows Charlie Erb, he's a manufacturer.
industry.
If you have a question about a particular gun or something like that you can speak to him. community. Q. A. Q. Are you familiar with Mr. Erb's work? Yes. Can you look at Government's Exhibit No. 6. I think it's He's quite prominent in the
tagged. MR. KUMIEGA: Kemmerer? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603 Your Honor, may the agent help Mr.
Kemmerer - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. THE COURT: THE WITNESS: (By Mr. Kumiega) Yes. Okay. I'm looking at 6.
678
And will you also look at Government's
Exhibit No. 7? A. Q. A. Got it right in front of me. Do you recognize those type of automatic weapons? Yes. Those are the weapons, they are Sten Mark IIs that
came from Charlie Erb to R.J. Perry to myself, and then on to Birmingham Pistol Parlor. Q. A. How do you know that, sir? Well, it's not that I know the particular piece, but I The E means Erb, I would assume, There were a number of them.
know the sequence of numbers.
and then they were a 600 series.
They all came through in the same configuration, which is, you know, these first two. They were Mark IIs, the magazine goes
in the side, there's a little button that releases it, rolls it around as a dust-hider. Mr. Erb usually has his name somewhere I mean, the guns kind of
on the back with the serial number.
all look alike, but they were all the same thing, they are Sten Mark IIs. Q. Did you receive the guns from Mr. Perry in what
configuration, please, if you remember? A. They were -- some were assembled and some were what they
refer to as a tube gun, which is just the receiver. Q. All right. And that would be that tube in front of you,
Kemmerer - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Government's Exhibit No. 8? A. Q. Yes.
679
That's the type -- some of those you received would look
in that configuration; is that correct? A. Right. Some of them came in this configuration, and then
some of them came assembled, it was about a 60-40 mix, 60 being approximate number -- 60 percent being the number of tubes, 40 percent being the number of finished pieces. Q. Okay. MR. KUMIEGA: Exhibit 3.16, please. THE WITNESS: (By Mr. Kumiega) Thank you, sir. Sir, can you take your time and take a Can you hand Mr. Kemmerer Government's
look at that firearm, please. A. Q. A. Sten. I've looked at it. How would you describe Government's Exhibit 3.16, please? Well, this is a Sten, but there's different models of The two that I have in front of me here are Mark IIs. The receiver on the Mark III is
This is a Mark III.
appreciably longer than the ones on the Mark II by, probably, about five inches. Q. All right. And do you notice anything about the serial
number on Government's Exhibit 3.16, the Mark III? A. Yes. It's -- it's larger, it's sort of amateurish. Okay. It says 683. I
can't -- I can't really -- yes.
The 3 is
Kemmerer - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. spread apart from the other -- the other numbers. Q. A.
680
How would you compare that to an Erb machine gun, please? Well, first of all, it's not the same gun, because as you
can see, this is the receiver of this gun, and the receiver for this gun is appreciably longer. gun. So it wouldn't be the same I mean,
Now, the workmanship on it is not that great.
it's, excuse the expression, it's rough-looking. Q. A. Q. All right. No. Did you pass that gun through to Alabama, to Birmingham, Is that typical of Mr. Erb's work?
Alabama, when you received it from Chicago? A. Q. A. Are you talking about this? Yes. No. It's not a Mark II. Your Honor, if I may have a moment. Yes.
MR. KUMIEGA: THE COURT: (Brief pause) (By Mr. Kumiega)
Mr. Kemmerer, when you passed on the
firearms, did you actually do a physical inventory of each gun that you sent, that you received from Perry and shipped to Alabama? A. Yes. When a gun comes to you, even if it's one gun, you
have to make sure that the paperwork matches the particular firearm. Q. All right. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Kemmerer - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A.
681
If the number would be different, there are, you know, as
you know, there are severe penalties having one number and another on a piece of paper. When these particular items came
in they came in in boxes, I had to physically sit down on the floor and go match the paper with the tube. And I mean,
literally the paper on the floor, the tube on top of the paper. Q. Would you have passed Government's Exhibit 3.16 to
Alabama? A. No. And the other thing is, when these go back out it's When you have multiple pieces you can't just You've
the same thing.
reach in and grab one and put a piece of paper with it. got to make sure A matches B. Q. Have you ever seen a gun quite like that in your
experience? A. No. I would have never bought a gun like this, because in the Class 3 community, we deal a lot with other
in this --
dealers, we also deal with individuals, and you can't take something like this and you can't resell it. To me, it's
misrepresentation, and in the business, you won't last very long because people will say, you know, he handles shoddy material. So if anything like this would come it would have to
be reworked. Q. A. How long were you in the machine gun business then? Probably -- it easy over ten years. MR. KUMIEGA: Nothing further, your Honor.
Kemmerer - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. BY MR. MARTIN: Q. THE COURT: You may cross-examine. CROSS-EXAMINATION
682
Mr. Kemmerer, I believe you testified that you got 50 or
60 receivers and/or guns from R.J. Perry; is that right? A. Q. Yes, sir. And the distinction I'm trying to draw is, a receiver -MR. MARTIN: (By Mr. Martin) If I might approach, your Honor. -- is Government's Exhibit No. 8; is
that right? A. Q. Yes, sir. And when you refer to a gun, you're referring to
something like one of these, correct? A. Q. Yes. All right. And so 60 percent of what you got were items
like Government's Exhibit No. 8, the receiver, and the other 40 percent, if there were, say, whatever -- however many guns that is, were they completely finished, partially finished? A. Some were -- most of them -- there were some that were
completely finished, which is the 40 percent, there were some that had parts kits with them that had never been, you know, finished the assembly. But it was about a 60-40 mix, and when
I say one was a tube, the 60 percent was tubes, the 40 percent were finished pieces. In other words, you could actually take
them out and fire them. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Kemmerer - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. All right. No, sir.
683
And you don't know which was what, do you?
I'm not intent on sitting here and say I
remember exactly which gun was which. Q. You don't know if, for example, Government's Exhibit No.
7 was like this or was just a tube like this, do you, sir? A. Q. A. Q. Correct. And the same with Government's Exhibit No. 8? Yes, sir. So you don't know if you got a firearm that was in a
partially completed state more than a tube, you don't know who did that work, do you, sir? A. Well, when the tube comes to me -- I think I'm Can you give it to me again?
misunderstanding the question. Q. I'll try to.
When you get a partially completed tube,
something more like this, when it gets here you don't know who has done the work to put it in this condition from the condition of a tube, is my question? A. That's not true, sir. What has to happen is if you get,
if you buy -- if you bought the tube personally you cannot put it together. I mean, I guess you could try, but you know, you
would probably wind up with what you have here as the other exhibit. But normally this would have to go off to a
manufacturer who is someone who is licensed to complete the piece. Now, you can't just send it to them, you have to notify
ATF that you want to take piece number XYZ and send it to, you B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Kemmerer - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 know, gun -- a machine gun manufacturer, you know. Then
684
they'll come back and say, okay, you can move the piece to this particular person, he'll do whatever work you want, and there's paperwork that has to come back. So to answer your question, when you have a gun, you can paper-trail it back and see who physically did the work. But
if it was done in a garage, then you can't find it anywhere. Q. Okay. You've got the paper in front of you. Tell me,
who -- the ones that you have, who completed them, Mr. Erb? R.J. Perry? A. Who completed those that you received?
They could have -- on any of these it could have been
R.J. Perry, and if someone else completed them after they went to Birmingham Pistol Parlor, that it would be a paper trail record there. Q. Okay. Now, that, I couldn't answer. When you got
You don't know -- my question is:
those firearms, you don't know who had done the work, if any had been done, on any of the tubes? A. The answer to that is no, but the tubes came out of
Charlie Erb as just tube only and they went to R.J. Perry, I believe was a manufacturer. So when they came to me I
assumed that he had finished them. Q. So your assumption is anything that was finished, R.J.
Perry had done? A. Q. Yes. Anything that wasn't finished, just came as a wholesale B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Kemmerer - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. lot to you then? A. Q. Right.
685
In other words, I didn't do anything to those.
And you bought, I think you said, 682, 685, I think part
of that you said you think you had 683, correct? A. Q. Yes. I believe so. Do you know whether or not you had 694 out of
All right.
that E series, E694? A. Q. A. No, sir. I would have to check my paperwork.
All right. I do know the serial numbers of all the pieces I got in
that lot. Q. A. Do you have that paperwork with you? No. Not with me, sir. May I have just a moment? Yes.
MR. MARTIN: THE COURT: (Brief pause) (By Mr. Martin)
Let me ask you this, sir:
I'm going to
show you what's been introduced, I think this is Government's Exhibit 1, or 1.01, or 1.1. I'm sorry. 1.5. I'm sorry. 1.5.
Are you familiar with that document, sir? A. Not really, sir. That would be the document that I I would not be privy to
believe Charles Erb would send to ATF. that type of document. Q.
Well, it's contained in the paperwork that you looked at
that shows that you actually were one of the owners in the B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Kemmerer - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 chain of custody of the firearm, right? A. Right.
686
But this is the beginning of the chain; I'm in
the middle. Q. A. Q. You don't see the documents before you, sir? Oh, I'm sorry. I think you've got Exhibit 1.6 and 1.4 in front of you
that show that you're in that chain. A. Q. Yes. Yes.
And if you look at that, does it appear that by looking
at these 25 series of guns that these are completed firearms, sir? A. Barrel length eight inches? That would imply -- to me, that would imply, I'm not the
ATF, but to me, that would imply that the gun was completed. Q. In other words, if I might borrow this, if the only thing
we have is this tube, it has no barrel, does it, sir? A. Q. A. Q. No, it doesn't. And it doesn't have an overall length, does it, sir? No. And the representation is that this is a Sten Mark II
with a barrel length of eight inches and an overall length of 31 inches, which would imply that these are completed firearms; would you not agree, sir? A. Q. I would agree. You said, sir, that you were familiar with the work of
Mr. Erb, and seen his product in the past, sir? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Kemmerer - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Q. A. Q. Yes. However, you don't remember whether or not you've
687
purchased E694; is that right? A. Q. Yes. Okay. MR. MARTIN: (By Mr. Martin) If we could see Exhibit 45, please. You can see it on the monitor in front I always assumed the E meant Erb.
of you too. A. Q. Yes, sir. Could you see -- can you make out the serial number E694
on that, sir? A. Q. A. Q. Yeah. Okay. Yes. Okay. Now, if we'll go back out. I'll represent to you, Barely, but I can see it. The next picture I think is -- does that help you?
sir, that this is Erb gun E694 that's registered on this piece of paper here that I just showed you. MR. KUMIEGA: -- objection. Objection, your Honor. I think Mr. Erb
Mr. Erb could not positively identify, I So there is some problems with that.
believe, the photograph. THE COURT:
Objection will be sustained. Let me ask you, sir: Does that tube,
(By Mr. Martin)
based on the photograph, have all the appropriate cutouts for a Sten II? A. I couldn't tell you, sir. I can see the picture, but
Kemmerer - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 there's a number of cutouts on the tube.
688 As to whether they
are in the correct positions or not, I don't know. Q. What is that -- can you see the one slot in the picture Do you see the one slot?
right here? A. Q. A. Q. Yes. Okay. Yes.
Do you know what a magazine well is?
Does it appear that it's got the appropriate -- I've Does it appear it's I'm talking
probably got it turned around backwards.
got all the appropriate cuts in that tube, sir? about the one in picture -A. Q. A. Q. A. Yes. I would say so.
Is there a cut right there? Yes. On this picture. Oh, the picture? I'm talking about the picture. I don't know. It's -- it doesn't
appear to have the cut. Q. Okay, sir. I wasn't referring -- all my questions were
referring to the picture. A. Q. A. Q. Sorry. I apologize. That's all right. I think your testimony was, I wrote down at least, and if
I wrote it down wrong I want you to correct me, that you don't specifically recall the particular pieces that you received, B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Kemmerer - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
689
but you know the sequence of numbers that you received; is that right? A. I don't know the sequence of numbers. It's written down
on the piece of paper. and 60 numbers. don't. Q. But --
There's probably -- there's between 50 No, sir, I
Do I know those numbers by heart?
Are they sequential, one right after the other or
something? A. As I remember, yes and no. I think there were numbers
missing in there, but I'm not sure. Q. All right, sir. And I'm going to show you, this has been Do you see that,
introduced as Government's Exhibit's 3.16. sir? A. Q. Yes.
I'm going to ask you to visualize something a little
different than what I have in my hand here, just the tube. Okay. Not any of the magazine, not the stock, not the trigger
mounting, just the tube, which appears to be I guess from here to here (indicating). A. Q. Yes, sir. Okay. That, sir, is what I'm asking you. Is there Do you see that, sir?
anything about that tube that makes it different or not part of the potential lot you got, sir? A. Q. It's considerably -- it's longer, sir. Okay. Other than the length?
Kemmerer - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Other than the length? Sure. Can I pick it up?
690
Two things I can -- well, two things I can see, but there This is
again, I think I'm getting away from your question. welded on, whereas on these particular guns -Q. A. I'm limiting it to the tube, sir. Okay.
I would say, with the exception of the length,
it's the same. Q. All right. And that's not how you would have received a
firearm, in that configuration, from R.J. Perry, is it, sir? A. IIs. Q. All right. I'm talking about a gun, excuse me, a No. Because they were all the same -- they were Mark
completed gun you would not have got from R.J. Perry in that condition; is that correct? A. Q. A. In that condition? With welds. No. No. This piece is, you now, completely different I mean, the welds, I mean, the weld just holds
than the lot.
it together, but the weld also has to look good aesthetically and, you know, these welds are not. exactly following you. Q. Well, my question is: The firearm in the configuration I'm not sure if I'm
it would have -A. Would have stood out. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Kemmerer - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. Would have stood out. Yes. The tube was longer, or appears to be longer than the Thank you.
691
other tubes; is that correct? A. Q. Yes. Considerably. During your ten years, approximately
And let me ask you:
ten-year period of time that you were involved in, as a licensed firearms dealer, did the ATF ever come out and inspect your receipts? A. Q. A. Yes, sir. Did they inspect this receipt, sir? No. Because they would have had to -- I had this in my
inventory, if you'll notice the dates, maybe a month to month and a half. It would have been a real coincidence they did an But if they did, yes, they
inspection at that particular time. would have look at it. Q.
As a matter of fact, you got this gun on looks like You had it a
October 8th, and you got rid of it November 25th. little less than 50 days. A. Q. A. Q. Right. Did you sell the whole lot then?
Probably 90 percent of the lot went to Birmingham. So if there was 60 guns, you would have sold maybe --
well, 90 percent of 60 guns, whatever that is? A. Fifty-something. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Kemmerer - Cross/Redirect 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. KUMIEGA: Q. Q. Okay. All right.
692
And this process that took a little
less than 50 days, the ATF didn't come out and inspect it before it left you either, did they? A. No. They do a yearly inspection but you don't know when That's the whole idea behind the
they are going to come. inspection. Q. come? A.
You at least never got notice when they were going to
Well, they'll call up and say we want to come look at They want to -- I mean, usually what they'll But if I was at work and I
your inventory.
do is come knock on the door.
couldn't do it, then I would call the person back and we would arrange, and what I would do is I would have all the pieces out with the appropriate paperwork. Q. All right, sir. MR. MARTIN: THE COURT: (Brief pause) MR. MARTIN: THE COURT: Nothing further. Any redirect? Briefly, your Honor. REDIRECT EXAMINATION May I have a moment, your Honor? Yes.
MR. KUMIEGA:
Mr. Kemmerer, looking at Government's Exhibit 3.16, does
the welds on 3.16 stand out? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Kemmerer - Redirect 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Yes, sir, they do. Does the serial number stand out similarly? Yeah.
693
The serial number sort of jumps right out at you. It's
There again, it just sort of goes along with the gun. kind of amateurish. Q. All right.
If that serial number was on the tube, would
that be considered Erb's work from your experience? A. To be honest with you, if these came through with all the
rest of them and all being the same, I would have had to ask the particular question, you know, why is this one different. I mean, if he did 50 or 60 at the same time why is this one -I would have been smart enough to just raise my hand and say, hold on a second, can we take a second look at this. Q. All right. And you're saying that the guns you received
from Perry were all Sten Mark IIs? A. Q. Yes. And this -- the tube is considerably longer; is that
correct? A. Yes. It's considerably longer, and by the way the rest
of the gun is welded together, if somebody would have attached a piece onto it, it would have been extremely visible, and it's not. MR. KUMIEGA: THE COURT: MR. MARTIN: I have nothing further, your Honor.
Anything further? One minute.
694 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 know? THE CLERK: THE COURT: Cathy might know. Why don't you ask Ms. Moy downstairs when (Brief pause) MR. MARTIN: THE COURT: No questions, your Honor. Okay. Mr. Kemmerer, you may be excused,
and I would advise you you're not to discuss the testimony you've given here today with other person who may be a witness in this matter. THE WITNESS: THE COURT: Yes, sir, your Honor.
You may be excused.
Ladies and gentlemen of the jury, we'll take our recess for this afternoon. I would anticipate that we're going to Anybody have a problem with
work a little later tonight. working until about six?
Anybody have a parking problem where Mr. Swanson, Ms.
they have to be out of their lot at six? Davis. JUROR DAVIS:
If we park in that garage across the way
are we okay after 5:30? THE COURT: I have no idea. Ms. Youngberg, do you
you take your break and see if there is -- which lots create -have a parking problem or not. sure. I don't think so, but I'm not
But ask her, she'll know, she knows everything. All rise
We'll take our recess for about 20 minutes. while the jury exits.
695 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 (The jury exits the courtroom, after which the following was had in open court:) THE COURT: you have? MR. KUMIEGA: Judge, I think we have about five more. Mr. Kumiega, how many more witnesses do
We have Mr. Mark -- Michael Davenport is the next witness. He's the person who received the firearms from Mr. Kemmerer, and then sold it to Mr. Friesen. And then we have a series of
witnesses, employees regarding possession of machine guns in the Armor vault. THE COURT: So can we finish all those this evening? I believe so. Yes, sir. I think we
MR. KUMIEGA:
might run out of witnesses around five o'clock. MR. MARTIN: Judge, the elderly gentleman in the I don't know if he
front, the black gentleman raised his hand. had a conflict. THE COURT: MR. MARTIN: his hand. THE COURT: MR. MARTIN: THE COURT: About a parking problem. Okay. Mr. Swanson? Yes, sir.
I don't know, but he raised
He's going to ask Ms. Moy.
And so then
your only witness left would be -MR. KUMIEGA: Judge, I think, one of the things we can
do if the Court wants to recess, we have Sarah Walbridge here B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
696 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Honor. THE COURT: She's not going to be a witness? Not today. Well, we couldn't make it witness? MR. KUMIEGA: She's not going to be a witness, your regarding the Daubert hearing. We're ready to do that if we
can have a recess I can talk to her and prepare for that. She's in the victim/witness room. I think we're getting pretty
close to ending the government's presentation. THE COURT: So would Ms. Walbridge be your last
MR. KUMIEGA: today, your Honor.
My understanding is Mr. Martin wants a
hearing regarding her expertise in paint, but she's here and ready to go. THE COURT: today, right? MR. KUMIEGA: Yes, sir. The witnesses I have left are So if we got her on you can be through
Michael Davenport, Joseph Newell, Annette Johnson, Catherine Long, Julie White. If the Court wants, I can do Debra
Davenport, your Honor. MR. MARTIN: MR. KUMIEGA: MR. MARTIN: MR. KUMIEGA: Maybe tomorrow. THE COURT: So are these all the witnesses you have But you're not going to rest today? Oh, no. He's not ready to rest, Judge. I'm not going to rest, your Honor.
697 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 her? left? MR. KUMIEGA: No, sir. No. I have Terri LeMaster, I
have Donald Ladd, I have Elizabeth Gillis. THE COURT: do you have left. MR. KUMIEGA: Oh, I thought for today. I'm sorry. I did not know That's what I asked is how many witnesses
for the whole trial, your Honor. MR. MARTIN:
I misunderstood.
Judge, we indicated Friday that they
would put on their expert on Tuesday to give me more time to review this stuff. I'm not complaining too much, but I just
wanted to remind the Court. THE COURT: So do we still need a Daubert hearing on
Is that who you wanted to have the Daubert hearing on,
Ms. Walbridge? MR. MARTIN: THE COURT: MR. MARTIN: THE COURT: That would be their expert, yes. So we can do that this afternoon? Yes, sir. She's here? Yes, sir. How long do you anticipate those
MR. KUMIEGA: THE COURT: other witnesses? MR. KUMIEGA:
Okay.
Judge, I think they are going to be They are going to be relatively
maybe ten or 15 minutes. brief. THE COURT:
So you could rest by noon tomorrow?
698 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. KUMIEGA: I'm not sure about that, your Honor. We
do have Terri LeMaster, or Terri Dennis, and you have to address the use immunity. THE COURT: have no motion. MR. KUMIEGA: day, your Honor. THE COURT: anticipate -MR. MARTIN: Our case? Your Honor, day and a half. I So what -- Mr. Martin, how long do you Okay. I will file one at the end of the I don't have anything to address yet; I
would try to keep it as brief as possible, but there is a lot of issues to address here. THE COURT: Monday then. Sounds to me like we're going to go into
By the time we have instructions and figure that So we're not going to finish
out, closing and all that.
Wednesday, doesn't sound like, does it to you, Mr. Kumiega? MR. KUMIEGA: No, sir. I thought the government's
presentation would be about five to seven days. THE COURT: another 15 minutes. (A recess was had, after which the following was had in open court:) THE COURT: Call your next witness. Yes, your Honor. The United States Okay. We'll be in recess for about
MR. KUMIEGA:
would like to call Mike Davenport. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Davenport - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. KUMIEGA: Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Sir, can you introduce yourself to the jury, please? I'm Mike Davenport. And where do you live at, please? Birmingham, Alabama. What do you for a living? I own a retail gun shop. Are you in, I guess you're in the gun business? Yes. For how long, please? Over 20 years now. MIKE DAVENPORT, called as a witness, having been duly sworn, testifies as follows: DIRECT EXAMINATION
699
And what type of guns have you sold in the past, please? I've sold -- if it shoots, we've sold it. Machine guns,
suppressors, mostly nowadays just modern handguns and shotguns. Q. All right. Are you currently licensed to sell automatic
weapons? A. Q. A. Q. Yes. How long have you had that license, sir? The same, over 20 years. Now, your place of business, you said is in where,
please? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Davenport - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. Birmingham, Alabama. Did you ever work for a person named Guy Walker? Yes.
700
And can you tell the jury the nature of the relationship
with Mr. Guy Walker, please? A. I was buyer and seller mostly on the Class 3 weapons. I
bought and sold, pretty much manager in that. Q. A. Excuse me? Pretty much manager on that, as far as buying and selling We sold a lot of other products, but Class
the Class 3 items.
3 was my corner, what I done. Q. All right. And where did you -- where was your place of
business when you were selling those firearms for Mr. Walker, please? A. Worked for Birmingham Pistol Wholesale, which is in
Trussville. Q. A. Q. A. Q. A. Q. A. Trussville, Alabama? Correct. How long did you work for Mr. Walker? Three years, four years. And did your wife also work for Mr. Walker? Yes, she did too, same time frame. What was her duties regarding the -She was secretary. She answered the phone, she done a
lot of the transfer paperwork, and whatever duties needed to be B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Davenport - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 done. Q. A. Q. A. Are you familiar with Erb machine guns? Yes. And what -- how are you familiar with that, please? That I bought a quantity of them, mostly from Grant
701
Kemmerer, that we bought and sold, you know, machine guns, tubes, partial tubes, full guns. Q. All right. Several pieces from Grant. Can you look at
And let me ask you this:
Government's Exhibits 1.4, 1.5, and 1.6. MR. KUMIEGA: And, Agent, if you can assist Mr.
Davenport with those documents, please. Q. (By Mr. Kumiega) Sir, what exhibit do you have in front
of you? A. I have a transfer from -- you're talking about government
document 1.4? Q. A. Q. A. Q. 1.4. Uh-huh. And what serial number is registered to 1.4, please? E682. And during the course of that document, does your name
appear in it, please? A. Q. A. Q. No. Yes. This is John Guy Walker. But you are his employee, or one of his agents? At the time I was his employee.
That's correct. All right.
Are you familiar with E682 in that document?
Davenport - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. A. Q. A. Q. A. Pretty much. All right. Okay. Again, does your name appear in that, please? No. Does Mr. Walker's name appear in that? No. This is from Perry to Grant Kemmerer. Yes.
702
And let's look at Government's Exhibit 1.6.
Let's look at the next page. Okay. I'm sorry. Yes. This is from Grant Kemmerer to
John Guy Walker. Q. A. Q. A. Q. All right. Serial number E685. It's from Grant Kemmerer to John Guy Walker? Uh-huh. Correct.
Is there certain names that are -- that validate the
transfer? A. Q. I'm sorry. Are there any names on that document that validate the
transfer? A. Q. A. Q. A. Q. That -- are you talking about the Walker to Bedford? Yes. Hang on. Let's see here. We've got Erb to Perry?
Right. Then we have Perry to Kemmerer? Correct. Then we have Kemmerer to Walker? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Davenport - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. A. Q. Right. And you're John Guy Walker's representative? I represent him, correct. Is that correct? Correct. Let's go down on the document.
703
Whose picture, excuse me,
whose name appears there, please? A. Q. A. That's Debbie Davenport. Okay. That's my wife.
And was she involved in some of these transfers? She actually done the
She done the paperwork on them.
secretary work on them. Q. A. Q. A. Q. A. Q. All right. So she's Debbie Davenport, secretary?
That's correct. And there's a date on that; is that correct? Correct. 12/7/92.
And this is for a gun E685; is that correct? Gun E685. Let's go back to Government's Exhibit 1.4. Same here.
Goes from Erb to Perry; is that correct? A. Q. A. Q. A. Q. That's correct. Then Perry to Kemmerer? Correct. And Kemmerer to John Guy Walker? That's correct. And you're working at Birmingham Pistol; is that correct? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Davenport - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. A. Q. A. Q. That's correct. And this is Walker to a person named -To James Dukes. Okay. Right. Let's go to Government's Exhibit 1.5, please. number are talking about there, please? What That's correct.
704
And Debbie Davenport's signature appears on that?
serial A. Q. A. Q. A. Q. A. Q.
1.5 will be serial number E683. All right. From Perry to Erb. Erb to Perry? Correct. From Perry to Kemmerer? Correct. And Kemmerer to John Guy Walker, doing business as
Birmingham Pistol Wholesale? A. Correct. MR. KUMIEGA: (By Mr. Kumiega) Flash the whole thing. And then from John Guy Walker to Larry
Douglas Friesen, Lobo Arms, here in Oklahoma City; is that correct? A. Q. Correct. And, again, transfer is done by Debbie Davenport; is that
right? A. Right. She sent it out on the 1st the 18th of '96.
Davenport - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Is this transfer, is the firearm going to Mr. Friesen
705
back in February 22, 1996? A. Q. That's correct. Let me get the chart here. I have a date on the chart as
February 26, 1996.
Is there a date when Mr. Friesen, when you
sent Mr. Friesen the documents, please, Government's Exhibit 1.5? A. Okay. I was just kind of -- yeah, that's correct.
Showed a transfer February 22nd of '96. Q. A. Q. A. Q. A. it. Q. Okay. Let's go back to the first part. You receive, To who, please? I'm sorry? From who to who, please? Shows from John Guy Walker to Larry Douglas Friesen. And the date again, please? February 22nd, '96, is when the ATF would have approved
John Guy Walker doing business as Birmingham Pistol, received machine gun 683 from Mr. Kemmerer on what date, please? A. Q. A. Received it from who? From Mr. Kemmerer. I'm sorry.
When did you receive the machine gun?
It came from Kemmerer, John Guy Walker to Grant Kemmerer,
would have been approved to ship to us November 25, '92, so I presume a couple days after that. Q. Okay. And that's -- what number are you looking at now?
Davenport - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Am I looking at the wrong number?
706 I'm looking at 683,
Exhibit 1.5. Q. Let's look at Exhibit 1.4. When did you get the machine
guns from Kemmerer for E682, please? A. Q. A. You say Exhibit 1.4? Yes, sir. All right. They would have came from Grant Kemmerer to
John Guy Walker November 25th, 1992. Q. Okay. And let's look at 1.6. When did you receive E685
from Mr. Kemmerer, please? A. From Grant Kemmerer to John Guy Walker, the date was
November 25th, 1992. Q. So are all the guns sent basically from Kemmerer to you
on or about the same day? A. Q. A. Q. A. Q. I believe so. Yes.
So you got them in a lot; is that right? Yes. Do you're buying Erb machine guns from Mr. Kemmerer? Yes. Okay. When you get -- what do you do in your business What did you do when you
when you're working for Mr. Walker?
got the lot from Mr. Kemmerer, please? A. I would, of course, unbox them, put them in the safe, log
them into the books, you know, and at that point we would put them in a storage safe. Of course, when I sold them I would
Davenport - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 put them into a separate safe as sold merchandise with the
707
invoice, and then when the transfer came through I would pull them and verify the serial number and make sure it matched the invoice, make sure it matched the paperwork, and at that point we shipped them. Q. All right. Mr. Davenport, how would somebody know that
you're in the business to sell automatic weapons? A. Q. A. that. Q. A. We ran an ad in the Machine Gun News, buy and sell. What's the name of it? Machine Gun News. Shotgun News. You would advertise in that? Shotgun News. Yeah. We ran an ad every ten days, and we And we had a lot of other I'm sorry, I'm telling you wrong on
list a -- we ran machine guns in it. guns that we sold. Q.
When you got the firearms from Mr. Kemmerer, did you add
or subtract anything from the machine gun itself? A. No. We don't do any -- no repairs, no manufacturing, no
warranty, no -- just buy them, bring them in and resell them. Q. A. Q. All right. So you just pass it through; is that correct? Yeah.
Just pass through. Okay.
Do you remember the Erb shipment that you bought
from Mr. Kemmerer back in November of -- I guess was it 1992; is that correct? A. I do vaguely remember the shipment. Yes.
Davenport - Direct/Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. MARTIN: Q. witness. THE COURT: You may cross-examine. CROSS-EXAMINATION Q. A. Q. Okay. Yes. All right. What is his work like, please, from your And are you familiar somewhat with Erb's work?
708
experience in this business? A. Erb does good work. He's -- he's been around a long As good as anybody out
time, so he's a -- he does good work. there. Q. All right.
Are you telling the jury that -- let me ask
you this then:
When you received the firearms from Mr.
Kemmerer and it was in, according to Government's Exhibit 1.5, it was sold to Mr. Friesen, did you alter the firearm in any way? A. Q. No. Okay. MR. KUMIEGA: THE COURT: (Brief pause) MR. KUMIEGA: I have no further questions of this Your Honor, if I may have a moment. Yes.
I understand, Mr. Davenport, that during this period of
time you were selling approximately a thousand machine guns or Class 3 weapons a month; is that right? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Davenport - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. No, that's not correct. A thousand a year? I know discovery says that or whatever, I saw that. A thousand a year.
709
But
I explained to these guys, that's not -Q. A. So this report that I've got is mistaken? Well, on that incident, that's correct. We sold
approximately a thousand machine guns on a good year. Q. A. Q. A. Q. Okay. So you saw where it said a month?
I did see that. Okay. Yeah. Okay. And this is back in -- you got this approximately Kind of jumped out at me too.
in 1992; is that right? A. Q. Correct. And you were shown, you were interviewed by some ATF
agents early on, were you not, sir, a couple of times? A. Q. Yes. And you were shown some tubes, were you not, that you
were told were Erb's tubes, right? A. Q. Actually, to my knowledge, I was showed this gun here. Okay. Do you not recall them showing you a tube, this
tube right here? A. Nope. I do not recall them showing me this tube here. I was not
Now, I was showed this tube a couple of days ago. showed this tube early on.
Davenport - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q.
710
When you say a couple of days ago, would you say as far
as back as February 13th, 2007, about 18 months ago? A. Q. A. Q. Nope. I wasn't showed that tube.
They gave you all your reports to read, didn't they, sir? No. Well, you knew you didn't sell a thousand a month. May I
ask, let me ask if this refreshes your memory. underlined it for you there. A. Q. A. Q.
I've actually
I don't ever remember seeing that tube gun. Okay. So you don't remember being shown that tube?
I don't remember being shown that tube. And telling them that that tube had smaller lettering
than the gun that you just talked about? A. You know, I do remember telling them they had smaller
lettering than this gun here. Q. A. Right. But that's off of Erb receivers that I've sold, not, not Just off Erb receivers that I had out of
this one, you know. that collection. Q. Okay.
And you -- let me ask you:
You have looked at
State's [sic] Exhibit Nos. 6 and 7, which are the two other firearms up there, right, sir? A. Q. Yes. And you don't know when you received them in what
condition they were in, do you, sir? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Davenport - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. I do not. You don't know if they were tubes, if they were
711
completely put-together firearms or what? A. That's right. I don't know if they were tubes or
complete guns. Q. A. Q. A. I didn't hear the last. I don't know if they were tubes or complete guns. Okay. Sir, now, do you know a guy named R.J. Perry?
I'm not sure if I have done business with R.J. Perry.
Somewhere down the line pretty much everybody in the machine gun business at one time I actually done business with. Q. A. With him? With pretty much everybody. I don't know on R.J. Perry,
I actually don't know. Q. A. Okay. Only way I could, you know, have to go through all the
records of all the guns I sold and see if R.J. Perry's name was on there somewhere. Q. Well, I'll represent to you that his name is on the
paperwork for Government's Exhibit 6, Government's Exhibit 7, serial number E683, and at least those three receivers, sir. A. Q. Right. That's correct.
So would you have done business with him in this sense if
he were involved in the transfer of those firearms? A. Huh-uh. I done business with Grant Kemmerer, not Perry.
Davenport - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q.
712
I had no idea who he was getting them from. I have no access to that. Q. Well, does Perry, to your knowledge, manufacture
firearms? A. Q. A. Q. A. I don't know. Okay. No. You just don't know?
I don't know Perry.
Okay. What I was trying to say is I might have done business
with him, I might have sold or bought a gun from him somewhere through the whole time I was selling guns, but not -- didn't have anything to do with this. I had no idea -- Grant was
apparently buying them and making a profit on them, that's the whole idea. Q. All right, sir. MR. MARTIN: THE COURT: (Brief pause) (By Mr. Martin) Now, do you know a Guy name John May I have just a moment, your Honor? Yes.
Brannum? A. Q. I don't think so. I'm going to show you what I have marked for
identification purposes as Defendant's Exhibit 105, and ask you, sir, without -- do you know what kind of form that is? A. Sure. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Davenport - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. A. Q. What is that? That's a -- that's a Class 3 transfer. Form 2 or Form 3. ATF Form 3. Okay. Down at the bottom, I think?
713
And can you tell us by looking at that form what
firearm that form relates to? A. It's gun number E683, it's a Sten or tube, whether it's a
Sten tube or gun, I can't tell. Q. All right, sir. And is there a signature on there that
you recognize? A. Q. A. Q. Yeah. Debbie Davenport.
That's your wife, correct? That's true. And she sought the approval of the sale of that firearm
to a particular person; is that right? A. Q. A. him. Q. A. Q. A. Q. A. That's correct. She filled out the paperwork.
Who was that sold to, sir? That's sold to John Brannum, but it doesn't mean I know It means he could have mailed in an order. All right. Or made a phone order. All right. And was that approved?
It was approved. And when would that have been? February 2nd, '93. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Davenport - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Okay. And that's the same firearm that I believe you
714
testified you also sold to Mr. Friesen? A. Q. A. Q. A. Q. I'm sorry. The numbers kind of --
Do you want me to bring the number back up there? Let me see. Yes, sir. That's correct. And this document, for whatever reason, is not in the 683?
pedigree of that firearm; would you agree, sir? A. Q. Yes, sir. Did you all manufacture, make any changes to firearms, or
were you just pass-through on everything? A. Q. A. Q. We were pass-through on everything. So however you got it is how you sold it? That's correct. If you got it fully assembled, that's how you sold it;
partially assembled, that's how you sold it; if it was just a tube, that's how you sold it? A. That's correct. MR. MARTIN: THE COURT: MR. MARTIN: May I have just a minute, your Honor? Sure. I need to look at one exhibit. Let me
borrow an exhibit here. (Brief pause) MR. MARTIN: Nothing further.
Davenport - Redirect 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. BY MR. KUMIEGA: Q. 13.1. Mr. Davenport, here's Government's Exhibit No. 13 and Let's start with 13. This is a document -- can you THE COURT: MR. KUMIEGA: approach the witness? THE COURT: Yes. REDIRECT EXAMINATION Any redirect? Yes, your Honor. Your Honor, may I
715
identify that, please? A. Yeah. Of course, this is the one from John Guy Walker to
John Brannum. Q. A. Q. A. Q. That's basically you to Mr. Brannum; is that correct? That's correct. Are you familiar with that document? I am now. Okay. MR. KUMIEGA: Your Honor, at this time the United
States would move for introduction of Government's Exhibit 13 into evidence. MR. MARTIN: THE COURT: No objection. Will be admitted. Okay. Now, that says that you people
(By Mr. Kumiega)
sold E683 to Mr. Brannum; is that correct? A. Q. That's how we transferred it to him. And 1.5, the certificate copy, does not include that B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Davenport - Redirect 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 transaction; is that correct? A. Q. A. Q. A. In 1.5. Yes. Let me look at that. If you can look at that, please.
716
This shows it going from Grant Kemmerer -- from Perry to
Kemmerer, from Kemmerer to Walker, and Walker to Larry Douglas Friesen. Q. A. Q. A. Q. What date, please? To Friesen? Yes. February 22nd, '96. And the date on Government's Exhibit No. 13, the
purported transaction -A. Q. February 2nd, '93. Okay. Let's look at Government's Exhibit 13.1. Are you
familiar with that document? A. I'm familiar -- not this particular one. I mean, just --
but I'm familiar with what it says. Q. All right. Take a look at it, take your time. Here is
the serial number, and there's an explanation. document, please? A. This is a void.
What is that
This is where -- a void transfer, when
you transfer a gun out and the guy changes his mind or doesn't pay for it, or whatever you, void it and then transfer to B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Davenport - Redirect 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. whoever does buy it. Q. A. And are you familiar with that signature? It's Debbie Davenport. MR. KUMIEGA: Your Honor, at this time the United
717
States would move for introduction of Exhibit 13.1. MR. MARTIN: THE COURT: No objection. Will be admitted. So my question then is: Mr. Brannum
(By Mr. Kumiega)
never received E683, did he? A. Q. A. Q. A. Apparently not. So this Government's Exhibit No. 13 is voided, right? It's voided. And this is a copy of why it was voided? That's why it was voided. That's a request to void it
and why it's voided. Q. A. Q. Because, what's the notation? Said he changed his mind. So Mr. Friesen is the person you sold the gun to, not Mr.
Brannum; is that right? A. Q. That's correct. Now, you stated that you don't remember the tube E705 if
you ever saw it until just the other day; is that correct? A. Q. A. Which one? Yes. This one?
Uh-huh.
I don't remember. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Davenport - Redirect 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. MR. KUMIEGA: THE COURT:
718
Your Honor, may I approach the witness? You may approach. Mr. Davenport, what I have here is
(By Mr. Kumiega)
report of interview that you did with the ATF back in 2007. And if you can silently read 6, 7, 8, and 9, please. A. Q. A. Okay. Does that refresh your recollection? You know, I remember -- I remember everything on there
except I don't -- I may have seen it, I just don't remember it. Q. But let me ask you this: Does that refresh your
recollection when you met with ATF back in 2007? A. I remember making a comment about the screws and the
price range and things on it. Q. A. Q. Okay. But did I remember everything in detail? I understand. No. I mean --
But Government's Exhibit 3.16, you
remember being shown that firearm? A. I remember looking at this gun and noting some things I This was all new to me.
had never seen. Q. A.
Can you show the jury what was new to you? I had never seen one actually assembled without welding That's kind of -- this is
it, you know, with doing set screws.
what I'm used to looking at, and I had never seen anybody split a mag well and just kind of force it in there and weld it like that. I'm sure it's been done, but I hadn't seen that before.
Davenport - Cross/Redirect 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. MARTIN: Q. Q. This is in your years of selling firearms; is that
719
correct? A. Yeah. I've never seen that done, and I've never seen one I didn't know you could do that.
screwed together. Q.
And you said, according to this report, you were familiar
with Erb's work and his serial numbers; is that correct? A. Q. Pretty much. Yes.
And when you flip this firearm over it has a serial
number, can you read that into the record, please? A. Q. That's E683. All right. And, in fact, you suggested to the government
about using bookend serial numbers to prove the case; is that correct? A. Q. That's correct. From your familiarity -- you being familiar with Mr.
Friesen -- excuse me -- Mr. Erb's work, does that serial number appear to be his work, his handiwork? A. It does not. MR. KUMIEGA: No other questions. RECROSS-EXAMINATION
Bookend machine guns would be 682 and 684, wouldn't they?
We don't have a 684 up there, do we, sir? MR. KUMIEGA: approach the bench. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603 Objection, your Honor. I would like to
Davenport - Recross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Martin.
720
(The following was had at the bench, out of the hearing of the jury:) THE COURT: MR. MARTIN: 682 and 684. objected. MR. KUMIEGA: The reason I objected, your Honor, Mr. What was your question again? I said a bookend serial number would be
And we don't have a 684 up there, and Ed
Martin was informed Government's Exhibit 684 was either destroyed or lost by a gentleman in Kentucky. want to have an inference out there. gone, it's destroyed or whatever. 685. So I just don't
We tried to get 684, it's
The next bookend gun was
I don't want to have the jury be misled about that. MR. MARTIN: I just asked him, I asked him what the I don't think there's If he wants to put somebody
next number was and it isn't there. anything inappropriate about that. on to explain that, that's fine. bookends, not me. THE COURT: explain that? MR. KUMIEGA:
But he brought up the
I didn't bring up bookends. Have you got somebody you can put on and
Through hearsay.
I don't have the Mr. Martin
documents here, but that's exactly what happened. was informed of that. THE COURT:
I don't see where it's applicable, Mr.
You don't question that's -MR. MARTIN: I don't question it, but he brought up
Davenport - Recross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. bookends, and I was going to cross-examine him about it. MR. KUMIEGA: it's missing.
721
It isn't a bookend of the other because
To have that out there -I'll sustain the objection.
THE COURT:
(The following was had in open court:) (By Mr. Martin) Mr. Davenport, my review of the records
on E682, I think that's Government's Exhibit 1.4, reflects that you got that gun in November of '92, or it was approved for you all to sell in November of '92, and you all sold it in August of '93. A. Do you see that, sir?
Grant Kemmerer, John Guy Walker, and John Guy Walker to
James Dukes, E682 on August of '93. Q. A. Q. Okay. And you got it in November of '92, approximately?
Yes, that's true. Okay. And the same thing kind of like on E685, which is You got that in November of '92 and
Government's Exhibit 1.6.
you sold it in December of '92, right? A. Q. A. Q. To Beckford. Yes, sir. That's correct. And as a matter of fact, you obtained 682, 683, and 685 Wouldn't that be
all on the same date in November 1992. correct? A. Q. Yeah. That's correct.
But you were unable to sell E683 until February of 1996, B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Davenport - Recross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 were you, sir, 3 1/2 years later? A. Q. I presume. That's what the paper says.
722
That's correct.
All right, sir.
When you received these three items, and
I assume you received more than three from Mr. Kemmerer, you received quite a few, as I understand? A. Q. Yes. Were they all boxed up individually, together, or how did
they come in normally? A. They came in -- they came in in different batches, and
they would come in one box all together. Q. And would you be the person that would inventory those
when they came in, or would various people inventory them? A. Q. A. I inventoried them. Okay. Just you, never anyone else? It's possible somebody
Not normally, just normally me.
else could, but no.
Actually, it was not possible because
Class 3 stuff would come to me to put it in a certain -- we kept all the Class 3 stuff in safes. Everything else was
stored in the warehouse except Class 3 items, and they were put in safes. Q. So you would have been the individual that inspected or
at least taken the boxes and put them in the safe? A. That's correct. MR. MARTIN: MR. KUMIEGA: Nothing further. Nothing further, your Honor.
White - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. KUMIEGA: Q. A. Q. A. THE COURT:
723
Mr. Davenport, you may be excused, and I
would advise you you're not to discuss the testimony given here today with other person who may be a witness in this matter. Call your next witness. MR. KUMIEGA: Yes, your Honor. The United States
would like to call Julie White. JULIE WHITE, called as a witness, having been duly sworn, testifies as follows: DIRECT EXAMINATION
Ma'am, could you introduce yourself to the jury, please? My name is Julie White. And how are you employed, please? Currently I work for the Health Research Institute in I'm the director of clinical research. Okay.
Oklahoma City. Q.
Can you pull that microphone closer to you, ma'am.
And can you tell the -- first of all, you said you're director of clinical research; is that correct? A. Q. A. That's correct. And what does that entail, please? I run clinical trials for pharmaceutical companies who
are testing new drugs. Q. A. And where do you office out of? 1044 Southwest 44th in Oklahoma City. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
White - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. A. Q. And how long have you been working there, please? Since May of this year. May of 2008? Yes, that is correct. And can you tell the jury something about your
724
educational background, please? A. Sure. I have an associate's degree in psychology, I have
a bachelor's degree in marketing with a minor in psychology, and I have a master's of business, MBA. Q. A. Q. From what universities, please? University of Central Oklahoma. Okay. And at one time -- at a time in your life, ma'am,
were you employed by Mr. Friesen? A. Q. I was. And can you tell the jury the dates of your employment,
please? A. It was November of 2002 until the -- it was, like, end of
January, beginning of February of 2004. Q. All right. So you said November of 2002 to January of
2004; is that correct? A. Q. I'm sorry. Yes. Okay. I can't see. Yes.
And what duties did you have with the
Friesen law firm? A. Q. I was the director of operations. Excuse me. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
White - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. A. Q. A. Q. A. I was the director of operations. What did that entail, please? Pretty much just running the office. All right. Just like a glorified office manager, pretty well. How many employees did he have, please? I think seven. Seven employees? Around six or seven. I can go ahead and -- that is
725
correct. Q. A. Q. Seven employees? Yes. And you said that you kind of were like the Girl Friday
then for the office? A. Well, yeah, glorified -- yeah. Office, glorified office
manager, if you will. Q. Okay. Were you aware, ma'am, of a -- of the law library
on the first floor? A. Q. Yes, I was. And was there anything peculiar about that law library,
please? A. The -- just the room that was behind the law library.
That was the only -Q. A. Tell us about the room behind it. There was a room, there was the law library and a B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
White - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 conference room.
726
And in between those two walls there were, it
was just a pretty small room that had a safe and some artwork in it. Q. A. Q. Excuse me? Had a safe and some artwork in it. All right. And were you familiar -- first of all, how
would someone gain access to that area, please? A. I never entered the location, I never opened it myself,
but there was, like, a remote control device that opened it. Q. A. Q. A. Q. All right. You were never in that room itself?
I was in the room, but I never opened it myself. Okay. Never opened what, please?
The entry to the secret room. Okay. Are you familiar with what type of things were
inside that room? A. Q. Yes. All right. Let's look at Government's Exhibit 2.1,
please. A. Q.
Are you familiar with that?
Yes. Okay. Can you look at Government's Exhibit 2.2. Are you
familiar with the interior of that exhibit? A. Q. Yes. Would you look at Government's Exhibit 2.3. Are you
familiar with that? A. Yes. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
White - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A.
727
And Government's Exhibit 2.4, are you familiar with that? I -- I don't remember seeing that or paying attention to
it, walking in there. Q. We're going to play a video clip for you, 2.0.1. What is
that, please? A. Q. A. Q. That's the law offices of Doug Friesen. Okay. The exterior. That's the exterior. Okay. This is a clip, right?
What's that, please? A. That's the law library, and that's the entry to what I
will call the secret room. Q. Okay. Are you familiar yourself now with the exhibit
that you couldn't identify, 2.4? A. I'm sorry. Could you repeat that? If we can go back and start on the Go back.
MR. KUMIEGA: second part. Q. A.
Stop right there.
(By Mr. Kumiega)
Does that look familiar? I don't
I mean, the entire room is familiar.
specifically remember what was on top of the -Q. A. Q. Okay. -- the safe. Now, you were employed on February 19, 2003 as the office
manager for Mr. Friesen; is that correct? A. It was November of 2002. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
White - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. A. When, please? November of 2002. When you did what? When I was employed as the director of operations for
728
Doug Friesen. Q. A. Q. 2003? A. Q. A. Q. Yes. Okay. Oh, I'm sorry. You were working there in 2003. And do you know what was And when did you leave his employment? It was end of January, beginning of February, 2004. Okay. 2004. So you were working there in February of
stored in that vault? A. Q. A. Q. Sure. Guns.
How do you know that? Well, I saw them there. All right. And did Mr. Friesen make any comments about
the guns stored in that vault? A. Q. room? A. Occasionally he would have, maybe once a week he would He just showed them to me one day. All right. And was there much traffic inside that secret
have someone visit the office and would show them -- I'm not sure what he was showing them, but they would go into the room, B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
White - Direct/Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. MARTIN: Q. Honor. THE COURT: You may cross-examine. CROSS-EXAMINATION
729
and I just assumed he was showing them a new gun or something, because he was very proud of them. Q. A. Q. Proud of his guns? Uh-huh. Okay. MR. KUMIEGA: Nothing further from this witness, your
You were familiar with the fact, were you not, Ms. White,
that Mr. Friesen was involved in teaching firearms classes, were you not? A. Q. Yes, I was aware of that. Concealed carry and other types of classes involving the
use of firearms? A. Q. Correct. Okay. And I believe you actually worked, as I recall, in
a house that would be just south of the office that you identified a while ago; is that right? A. Correct. During the, like, first year that I was there
it was in the main house, and then we moved over into the house next door after about a year. Q. Okay. So if you started in November of 2002, you're
saying in, like, November of 2003, approximately that time B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
White - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
730
frame, you left the office and went into another building that would be immediately south? A. Q. A. Q. A. Q. A. Q. A. Q. Correct. All right. Of course, I'm not sure of the dates. Okay. Okay. I just added a year to November, okay? Okay. And you were there up until February of 2004, correct? Yes. And Mr. Kumiega showed you photographs of a safe and some Do you recall that? And I'm not trying to pin you down.
photographs of the inside of the safe. A. Q. Yes. Okay.
Are you yourself personally familiar with
firearms, ma'am? A. Q. I am not. Okay. It would be fair to say then, would it not, that
you don't remember any particular firearm in that safe, do you, ma'am? A. Q. That would be correct. Okay. You remember seeing what you've classified as
firearms, but you can't say what type, model, make or anything like that? A. Correct. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
White - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Honor. THE COURT: Q. Okay. And -Nothing further. Anything further?
731
MR. MARTIN: THE COURT: MR. KUMIEGA:
Nothing further from this witness, your
Ms. White, you may be excused, and I would
advise you you're not to discuss your testimony with other persons who may be a witness in this case. Call your next witness. MR. KUMIEGA: THE COURT: Your Honor, may I approach, your Honor? Yes.
(The following was had at the bench, out of the hearing of the jury:) MR. KUMIEGA: Judge, I apologize. I've run out of
bodies, no one else here. THE COURT: Is anybody trying to come in? One woman, her baby is sick. We had the
MR. KUMIEGA:
woman sitting here a long, long time trying to accommodate the out-of-state witnesses. THE COURT: MR. MARTIN: MR. KUMIEGA: Then we have a witness who is --
What was the purpose of the last witness? We don't have any more witnesses? We have a series -- we can make that
real, real quick for two -THE COURT: What was the purpose of that witness? To show for Count 2, that he stored guns
MR. KUMIEGA:
732 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 o'clock. THE COURT: And you can't -- you've got four or five here. Kumiega? MR. KUMIEGA: THE COURT: the hearing? MR. KUMIEGA: I was mistaken, Sarah Walbridge is not No. constantly in the safe during that period of time. THE COURT: So we don't have any more witnesses, Mr.
Do we have your expert here so we can have
She'll be here at five o'clock. THE COURT: She'll be here in the courthouse at five? No. She'll be landing tonight at five
MR. KUMIEGA:
of these other witnesses and you can't get any of them here? MR. KUMIEGA: I can find Ms. Gillis, who is an expert, She flew
but I haven't talked to her regarding her testimony. in this morning. THE COURT: MR. KUMIEGA: Where is she?
She's downstairs in the witness room.
She got here a little while ago. THE COURT: MR. KUMIEGA: Let's put her on. Can I have a five-minute break to talk
to her about her testimony before I put her on? THE COURT: MR. MARTIN: There is no challenge. I'll stipulate to her testimony. She's
going to say it's a machine gun. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Gillis - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. KUMIEGA: Q. A. Q. A. Q. A. Good afternoon. Good afternoon. Can you introduce yourself to the jury? Good afternoon. My name is Elizabeth Ann Gillis. please. (Witness sworn) ELIZABETH ANN GILLIS, called as a witness, having been duly sworn, testifies as follows: DIRECT EXAMINATION THE COURT: So we'll just stand at ease for five
733
minutes while you go get her. MR. KUMIEGA: Yes, your Honor.
(The following was had in open court, within the hearing of the jury:) THE COURT: Ladies and gentlemen, we're going to stand
at ease for about five minutes while we go get another witness who is in the basement. So if you want to stand and stretch
and visit quietly among yourselves, you may do, as long as you don't talk about the case. (Brief pause) THE COURT: Come up here and be sworn by the clerk, We'll just be at ease.
And how are you employed? Pardon? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Gillis - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. How are you employed, please? I'm employed with the Bureau of Alcohol, Tobacco,
734
Firearms & Explosives. Q. A. Q. A. Q. And currently in what capacity? Currently, I'm an industry operations specialist. What does that mean? I write regulations both in firearms and explosives. Prior to -- well, when did you start doing that line of
work, please? A. Q. A. Q. A. Approximately three years ago. Prior to doing that, you also had a job with ATF? Yes. What was that, please? I worked as a firearms enforcement officer in the
firearms technology branch. Q. A. Q. A. And how long did you do that? A little under four years. What did that entail, please? That entailed examining firearms that were submitted by
special agents as well as manufacturers and importers of firearms to determine classification, origin, and identification of the firearms and/or ammunition. Also
testifying in court and maintaining a firearms reference collection of over 6,000 firearms. Q. All right. Were you in charge of maintaining that
Gillis - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 collection? A. Q. I was one of, yes, one of many people. All right.
735
During the course of your experience, have
you testified as an expert witness around the country? A. Q. A. Yes, I have. Specifically, in what capacity? As a firearms enforcement officer, and also prior to that
job I spent 11 1/2 years in the ATF laboratory as a firearms and toolmark examiner examining bullets and cartridge cases to determine if they were fired from a particular firearm to the exclusion of all others, restoring serial numbers on firearms, as well as doing crime scene reconstruction and gunshot, gun powder residue testing on victims' clothing. Q. Did you get a specialized line of training for that type
of work? A. Q. A. Yes, I did. Tell the jury about, please. My training at laboratory consisted of a 2 1/2 year
on-the-job training program where I worked under senior firearms and toolmark examiners and learning the discipline, as well as traveling to different firearms manufacturers to see how the firearms are made. I also spent time in, when I was at
the laboratory in the firearms technology branch just to learn about machine guns, how they functioned, silencers, things of that nature. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Gillis - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. In the course of this investigation, did you have the
736
opportunity to look at Government's Exhibit 3.16, that's going to be the farthest gun from you, I think. A. Q. Yes, I did. All right. And first of all, can you tell the jury what Yes.
the federal definition of a machine gun is, please. A. Well, it's a weapon that will shoot in -- it's a weapon
that will shoot full automatic basically with the single -sorry -- with a single function of the trigger, it will fire more than one round. of a machine gun. Q. All right. And let me ask you this: What's in front of It also consists of the frame or receiver
you as -- to the right of government's exhibit, to the right by the water, yes, is a tube, Government's Exhibit No. 8. would you consider that? What
I know I haven't had time to show you
that today, but what is that, please? A. It appears to be a tube that's been -- that's been cut in
a configuration, basically, I guess considered a -- I'm sorry, a machine gun according to federal law, because it's a tube that's been cut in certain locations in order to accept machine gun parts. Q. All right. The government's exhibit that you looked at,
3.16, the one with the tag, is this a machine gun? A. Q. Yes, it is. And did you do certain testing to validate that, please? B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Gillis - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. I did.
737
I test-fired it in our range and determined not
only would it fire in the semi-automatic mode, but when the selector is pushed to the automatic mode it would fire more than one round with a single function of a trigger. Q. And the definition of a machine gun is found in Title 18
of United States Code; is that correct? A. Q. That's correct. Okay. Now, in particular, did you make an analysis of
what type of machine gun you examined? A. Q. I had called it a Sten type machine gun. All right. And did you get more -- did you get a more
narrow definition of what type of Sten type machine gun? A. Q. Not within my report, I just called it a Sten type. Okay. So are you saying that -- what type of weapon is
it, do you know? A. Q. A. It is a -- it actually is a Sten type Mark III. All right. But I did not put that in my report. I just listed it as
Sten type submachine gun. Q. And why do you make -- why do you couch it in the Sten Tell the jury about that, please.
type Mark frame? A.
Well, when they made the Sten they basically made several They were typically cosmetic changes. It
different types.
might have been because of the stock itself, it might have been because of the barrel, the -- just cosmetic designs of the B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Gillis - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 different weapons. Q. All right.
738
Is the tube of the firearm important to make
a determination between a Sten II and Sten III, the receiver? A. Q. A. Yes. All right. Tell us about that, please?
Well, the tube on the Sten III is going to be, it's
typically sheet metal that's welded together along with the barrel, so basically the barrel cannot be removed. And it's
typically welded or -- typically welded or riveted together as one complete unit, basically it's integral, both the barrel and the jacket itself, or the tube. Q. All right. Do machine guns, according to your
understanding, or any firearm here in the United States, do they need serial numbers? A. Q. A. Yes, they do. All right. And why is that, please?
For identification purposes, inventory, when inspectors
go out and inventory them to identify them to a particular weapon. Q. All right. And you looked at the serial number on, the
purported serial number on Government's Exhibit 3.16; is that correct? A. There were multiple numbers when I had examined it. I
had identified it by a number that I found on the magazine housing. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Gillis - Direct/Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. MARTIN: Q. Q. Q. A. Okay. Yes. And then is there a number below that, please?
739
There's a number that's on the bottom side of the
bottom portion of the tube. Q. All right. From your understanding of federal law, do
the serial numbers always need to be displayed? A. Yes. MR. KUMIEGA: THE COURT: (Brief pause) (By Mr. Kumiega) So the serial number has to be where, Your Honor, if I may have a moment. Yes.
please, on that -- on all machine guns? A. Q. It has to be on the frame or receiver of the machine gun. And is someone allowed to remove a serial number from a
firearm? A. No. MR. KUMIEGA: THE COURT: Nothing further, your Honor.
You may cross-examine. CROSS-EXAMINATION
The purpose of your examination, was it not, ma'am, or
Agent Gillis, was to determine whether or not this was a firearm -- excuse me -- a machine gun, right? A. Q. A. Correct. Did you perform any other tests other than that on it? No, I did not. Just a physical examination as well as a
Gillis - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 test firing. Q. Okay.
740
Now, you were talking about the serial numbers a
minute, Mr. Kumiega asked you some questions about the serial numbers. correct? A. On the frame or the receiver, which is part of, yes, part The serial number has to be on the tube; isn't that
of the tube. Q. A. Q. A. Q. A. Q. Okay. It's considered. And there is a number on the tube, is there not, ma'am? Yes, there is. The E683? Yes, there is. Okay. And I believe you said now you're writing
regulations; is that right? A. Q. That's correct. Okay. And you're familiar with the regulation that came
into effect in 2002 about the size and the depth of the serial numbers, are you not? A. Q. Yes, I am. And you knew that was because serial numbers before that,
they didn't have any depth or size and they could rub off or be -- virtually become invisible? A. I would not say they would just rub off. Typically, the
manufacturers when they stamp, stamp engrave cast the serial B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Gillis - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 numbers.
741
We found, actually, I was part of the testing when we
were trying to determine the depth of the characters and the size that it should be for the regulations, I worked in the laboratory at that time. And we found that the majority of the
manufacturers went beyond that three-thousandths depth, and typically serial numbers you can't just rub them off. Q. true? A. Q. That's correct. I could take a paperclip and etch serial numbers in the Prior to 2002, there was no depth requirement; isn't that
side of a tube, and that would meet the requirements of the rules at that time prior to 2002? A. Q. A. It would have to be engraved, stamped, impressed. Well, if I can engrave with a paper clip, let's say. I'm not sure that that would be considered under the
regulations as being correct. Q. A. Q. Okay. But there was no depth requirement?
That's correct. All right. Now, you talked about this being a Sten IIII.
You actually called it a Sten type, right? A. Q. That's correct. All right. And then today for the first time you've You're
mentioned you kind of got a Sten III type, I guess.
familiar with that a Sten III was a flat piece of metal that was rolled around I believe it's called a mandrel, are you not, B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Gillis - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ma'am? A. Q. Yes.
742
And that is not what Government's Exhibit 3.16 is, is it,
ma'am? A. It has been. It's a piece of metal that has been formed
together with a barrel. Q. Okay. But it's not -- it wasn't a flat piece of metal,
it's a tube, isn't it? A. Q. Well, it's -- when you bring it together it forms a tube. Right. Well, and it's welded. Is that one welded at the
top where they bring it together? A. It can be. There is also -- it can be riveted as well,
which this one does contain rivets. Q. This is a flat piece of metal, a mandrel is a long round A piece of metal is bent around the mandrel. Do you
piece.
agree with that? A. Q. It can be. That's what Sten III, that's how they are made, isn't it,
ma'am? A. Q. A. Some of them might have been made that way. Are you familiar with how Sten IIIs are made, ma'am? I know that some of them -- I know that they are made
with the barrel and the barrel jacket or shroud all as one piece together, and the barrel is not removable. integral. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603 It's
Gillis - Cross/Redirect 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. KUMIEGA: Q. A. Q. I'm talking about the tube portion.
743 It's welded at the
top, is it not, ma'am? A. Q. A. Q. Yes.
Are you familiar with that?
Is it welded at the top, a typical class -- Sten III? Yes. That gun, 3.1, is not welded at the top, it is a tube, is
it not, ma'am? A. Q. Yes. Okay. It's a tube. So the classic Sten III characteristic of it being
a flat piece of metal rolled and welded at the top is missing from that firearm; wouldn't you agree? A. Q. It is not welded at the top, that's correct. And prior to 2002, there were no depth requirements on
serial numbers; is that right, ma'am? A. Q. That's correct. So if we have a tube manufactured in 1986, there is no
depth requirements on the serial number on that tube at that time, right? A. That's correct. MR. MARTIN: MR. KUMIEGA: Nothing further. Just follow-up, your Honor. REDIRECT EXAMINATION
Ma'am, you said this is a Sten type gun; is that right? That's correct. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
Gillis - Redirect 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603 Q. A. Q. So would you say it's a hybrid something? I'm not sure I understand your question.
744
It's got characteristics of Stens, but it's not really a
Sten III? A. It's characteristics of a Sten. It's typical of a Sten
III in the sense of its physical characteristics. Q. A. tube. Q. you? A. That it's -- it's an after -- it's, I would think, like Correct. And in your experience, what does that tell But it's lacking something; is that correct? It's lacking the weld at the top along the top of the
an after-market type, if you will. Q. A. What do you mean by that? That it's not -- it wasn't manufactured, it wasn't
manufactured in World War II, and it wasn't remanufactured in the sense of having been originally a Sten III. Q. A. Okay. So it's like a copy of, if you will, or something very
similar to a Sten type III. Q. A. Q. This is not a replication of anything then? Correct. Okay. MR. KUMIEGA: Nothing further, your Honor.
Gillis - Recross/Redirect 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. KUMIEGA: Q. BY MR. MARTIN: Q. I believe you told Mr. Kumiega that a machine gun was Do you recall that, ma'am? RECROSS-EXAMINATION
745
defined in Title 18. A. Q. A. Q. A.
Defined in Title 18? Right. I -If you don't know, you can just -I don't know. I mean, I don't know if -- he had asked me The definition of a machine gun.
if it was in Title 18. Q. All right. Are you familiar with Title 26 and the
definition found in Section 5845? A. Q. Yes. And that's where a machine gun is defined, is it not,
ma'am? A. That's correct. MR. MARTIN: MR. KUMIEGA: Nothing further. Just follow-up. REDIRECT EXAMINATION
It's still a machine gun either under Title 18 or Title
26; is that right? A. It is a machine gun under Title 26 and a machine gun is It's not defined but --
named under I believe Title 18. MR. KUMIEGA:
Nothing further, your Honor.
746 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: Ms. Gillis, you may be excused. Thank you.
THE WITNESS:
Government may call their next witness. MR. KUMIEGA: Your Honor, at this time we have no
other witnesses to call for today. THE COURT: Counsel approach.
(The following was had at the bench, out of the hearing of the jury:) THE COURT: I know what Judge Daugherty would do, you
would be resting right now. MR. KUMIEGA: Don't do that, your Honor. I apologize.
I ran out of witnesses. THE COURT: I hoped to work late these days and finish How long do you
this before Wednesday for the jury's sake.
anticipate that the Daubert hearing is tomorrow? MR. MARTIN: Well, as I understand, Mr. Kumiega has
the burden of establishing there is scientific basis for his witness's testimony, your Honor. can do it within 20 or 30 minutes. THE COURT: What's she an expert on? She's an expert on paint. She's going I think -- I'm assuming he
MR. KUMIEGA:
to say when she analyzed Government's Exhibit 3.16 there is only one layer of paint. THE COURT: very long. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603 Shouldn't take -- her testimony won't take
747 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 noon. B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603 MR. KUMIEGA: I don't believe it would. I believe
that's the crux of her testimony. THE COURT: Okay. I'm going to have the jury come in We'll
at 10:00, and we're going to have that hearing at 9:30. be finished by 10:00 with the hearing. MR. MARTIN:
You have her, LeMaster, Ladd, and are you
going to have some more employees? MR. KUMIEGA: I've got three more employees. Nelson
is the first one, Nelson; Annette Johnson sold him some guns, or he had some guns in the vault; Ms. Long, who is another employee. So I've got some work to do because I want to
interview Ladd in the morning and file a motion for LeMaster. I'm getting really close to wrapping it up. I just need a
little time because of the -- Mr. Ladd is in the transfer station. stand. We need to bring him here so we can put him on the
And Ms. LeMaster is represented by Mr. Byers, so we
need to get ahold of them, but we're close to finishing. MR. MARTIN: My concern is he might finish at four, he
might finish at six, and I don't want to get in trouble with you, Judge. If he finishes at four, I need to know if you need
me to be ready to jump and run, or if we're going to start early maybe Wednesday morning, or how you want to -THE COURT: MR. MARTIN: Jump and run. Okay. So we should have some idea by
748 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. KUMIEGA: THE COURT: MR. MARTIN: Yes, sir.
Okay. Out of an abundance of caution, Judge,
should we advise the jury if it goes we may not be here Thursday, so they can make plans? (The following was had in open court, within the hearing of the jury:) THE COURT: Ladies and gentlemen of the jury, it
appears we're not going to work until six today; we have no more witnesses available. It had been my goal, and I told you
that we would be finished I thought by the end of last week or certainly no later than a day or two this week. It appears
that because of the delay that we had unforeseen by myself when I told you that, and the complications with the, some of the evidentiary matters that we had that we certainly went into this week, and I had hoped we would be through this week. But
it looks like we may be back Monday of next week in that I have something that we cannot have court on Thursday and Friday that I cannot change, another matter. And I apologize to all of you, but I would just let you know that we will not be meeting Thursday and Friday. I'm
hoping that we will have almost all of the evidence, if not all the evidence, completed by Wednesday. And it would be my
intention, and I will instruct the parties to not run out of witnesses the next two days, because it will be my intention to B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603
749 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 work as long as we can, and I had hoped we could tonight. But
Ms. Grayson, I see that you're disappointed that we got the air conditioner working, and I think you share that with Ms. Youngberg. But it was a little warm for the rest of us, so
bring your jacket tomorrow. I hope that doesn't work any undue hardship on anybody, but you will have Thursday and Friday off, and we will have to come back next Monday, and I do have a trial starting next Tuesday, another trial. So I would just tell counsel that
we're going to do whatever it takes to finish up by Monday, and we will work this week to see that we can achieve that goal. With that, I again would advise you do not discuss the case with anyone or allow anyone to discuss it with you. not do any research or anything on your own regarding the matters involved in this case or persons involved. you'll leave your notebooks. Now, we do have one matter to take up with counsel at 9:30 in the morning, the jury -- on an evidentiary issues that we've got to work before -- so the jury will need to be here at 10:00 and we'll start promptly at 10 a.m. Leave your notebooks in your chair, and with that, we'll be in recess until 10 a.m. in the morning. (The jury exits the courtroom, after which the following was had in open court:) THE COURT: I would tell counsel that I do intend on Also if Do
750 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 B. JEANNE RING, RDR UNITED STATES COURT REPORTER 200 NW 4th Street, Suite 3011E Oklahoma City, OK 73102 jeanne_ring@okwd.uscourts.gov - ph (405) 609-5603 I hereby certify that the aforegoing is a correct transcript from the record of the proceedings in the above-entitled matter. __________________________ B. Jeanne Ring, RDR starting at 10:00, so make your -- be ready for that hearing promptly at 9:30. MR. KUMIEGA: THE COURT: Yes, sir.
We'll be in recess until then. For
(Court stood in recess until September 23rd, 2008. further transcription, see Volumes V through VII of this transcript.) * * * * * REPORTER'S CERTIFICATE

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1 2 3 4 5

UNITED STATES OF AMERICA, Plaintiff,

vs. LARRY DOUGLAS FRIESEN,

Case No. CR-08-41-L

this transcript.) THE COURT: Well, I understand instead of solving

What are they? On Friday Mr. Savage, the expert witness

Specifically, the serial And then we

That's the serial number in question.

That's the, I guess he was

But if I might respond, Judge,

This scratch now has been

I think it's appropriate for an instruction to the jury

paint samples taken from the serial number.

For the life of me

The caliper, I don't understand how that would

want I can bring him in here. THE COURT: What else?

I mean, that's my -- my problem is I don't

550 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 failed to do. A couple of things. One, there's a deferred

MR. KUMIEGA: THE COURT:

so that's off the table.

into the Canadian smuggling, that's off the table.

But I think these other violations all sound

It's got a thumbnail

I can show the Court the tool, that's no problem.

THE WITNESS: THE COURT: THE WITNESS: specifically. MR. MARTIN:

Judge, I don't think, it occurred, we

MR. KUMIEGA: THE COURT:

America versus Larry Douglas Friesen.

before that. Q. '79? A.

In '79 I was -- well, before '79 I was doing a lot of

In 1980, I secured a license from the federal

and World War I aircraft. niche.

So I wanted to do something, and it was fun, and was

Erb - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 enjoyable. Something I really liked doing.

558 So if you enjoy

doing something it's not work anymore.

correct? A. No. In 1980. My license took effect in 1980, I started

much interested in them.

museums and put a lot of this stuff in museums.

At a certain time then your

course, the parts slowly filtered into the U.S.

Tell the jury what a

operating components of the firearm.

correct? A. Yes. In some cases it would be a cylindrical tube. The

British and the German both used a tube.

The Russians were a But

(By Mr. Kumiega)

Erb - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 No. 8.

and it is a Sten Mark II.

So the name was given

became the Sten gun.

The British made them at the time they

and they were easily dismantled.

Erb - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Let me ask you this:

The parts that were coming into the

There's an ejection port, and entry port, there's a

made fun of them.

Erb - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 receivers out of a flat piece of sheet metal.

564 And they would

excuse me, to a round tube.

Now, this is definitely your handiwork; is that

the heat numbers are still on it.