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March 5, 1992


The opinion of the court was delivered by: Baker, District Judge.


Superseding Indictment

Each of the counts in the indictment relates to the defendants' plans and efforts to purchase Steyr AUG-SA assault rifles from Gun South, Inc. (GSI) of Trussville, Alabama, an importer and seller of weapons, and to resell these assault rifles. During the time period covered in the indictment, each defendant held a position which is relevant to their attempts to obtain the assault rifles: Nevius was an officer in the Illinois Army National Guard (Guard); Hales was both an officer in the Guard and a federal firearms licensee; McCabe was a member of the Guard; F.J. Vollmer was a federal firearms licensee; and Robert Vollmer worked for F.J. Vollmer at its gun store. The superseding indictment charges the defendants with conspiracy to defraud the United States under 18 U.S.C. § 371 and 372, making false statements to BATF under 18 U.S.C. § 1001, and mail fraud under 18 U.S.C. § 1341 and 1342.

Specifically, count one charges that all the defendants, except Hales, violated 18 U.S.C. § 371 and 372 by conspiring to defraud the United States and the Bureau of Alcohol, Tobacco and Firearms (BATF) by providing false and fraudulent documents to BATF in an effort to obtain the Steyr AUG-SA assault rifles. Counts two through eight contain separate charges against McCabe, Hales, and Nevius for knowingly and willfully making false statements to the director of BATF that Steyr AUG-SA rifles were being purchased for official use of members of the Guard and not for resale. Under counts nine through thirteen, Hales and Nevius are indicted for mail fraud; the indictment states that Hales and Nevius caused GSI to use the mails to send checks to them as part of a scheme to defraud GSI. Finally, counts fourteen through eighteen charge Nevius, F.J. Vollmer, and Robert Vollmer with mail fraud, alleging that, in executing a scheme to defraud the BATF for the purpose of obtaining Steyr AUG-SA rifles by false and fraudulent pretenses, they submitted orders to GSI through the mail.


The Steyr AUG-SA assault rifles which the defendants sought to obtain have been the subject of actions by the Secretary of the Treasury, the BATF, and the federal courts. In making the false statements charged in the indictment, the defendants were attempting to avoid restrictions on the importation and sale of these rifles resulting from a ban by the Secretary of the Treasury and from litigation in the Northern District of Alabama. The restrictions on Steyr AUG-SA assault rifles originated on March 14, 1989, when the Secretary of the Treasury Nicholas Brady imposed a temporary ban on the importation of several makes of semiautomatic assault weapons, including the Steyr AUG-SA rifles. The Secretary enacted this temporary ban pending a decision whether the weapons continued to be importable under section 925(d)(3) of the Gun Control Act (GCA), 18 U.S.C. § 925(d)(3), which allows the importation of firearms that are "recognized as particularly suitable for . . . sporting purposes."*fn1 On the same day, the BATF suspended action on pending applications for the importation of the temporarily banned weapons.

Prior to the ban, the BATF had approved two permits for GSI to import Steyr AUG-SA semiautomatic rifles, and GSI had ordered 800 rifles. Once the BATF imposed the temporary ban, GSI asked BATF whether the ban included imports under previously approved permits. Although the BATF responded to GSI's inquiries by stating that the ban did not apply to firearms purchased under preexisting permits, the Customs Service interdicted GSI's shipment of rifles. The government refused to give custody of the guns to GSI unless GSI posted a bond guaranteeing that it would not resell the guns. See Gun South, Inc. v. Brady, 877 F.2d 858, 859-609 (11th Cir. 1989) (for more detailed account of GSI's situation).

On March 30, 1989, GSI brought a suit against the Secretary of the Treasury in the Northern District of Alabama seeking to enjoin the government from interfering with the delivery of firearms imported under permits which BATF approved prior to the suspension. The district court issued a permanent injunction preventing the government from withholding the Steyr AUG-SA rifles from GSI. Gun South, Inc. v. Brady, 711 F. Supp. 1054 (N.D.Ala. 1989). According to the district court, the government failed to demonstrate that the Steyr AUG-SA rifles were not particularly suitable for sporting purposes under section 925(d)(3). The court concluded that the rifles were importable under section 925(d)(3) and, therefore, that the Gun Control Act precluded the temporary ban. On appeal, the appellate court reversed the district court's decision, finding that the ban was within the authority of the BATF. Gun South, Inc. v. Brady, 877 F.2d 858, 869 (11th Cir. 1989).

After the appellate decision, on October 13, 1989, the Director of the BATF determined that the Steyr AUG-SA assault rifles were not suitable for sporting purposes and, therefore, were not importable under any provision of section 925(d). This decision made the ban on Steyr AUG-SA rifles permanent. On November 9, 1989, the Northern District of Alabama entered a Stipulation and Order (Stipulation) dismissing the Guns South case. (See docket # 29, exhibit 2) This Stipulation allows GSI to import the Steyr AUG-SA assault rifles under the previously approved permits with certain restrictive conditions. The Stipulation specifically provides that GSI only can take possession of the rifles under the conditions stated in paragraph five of the stipulation or under any other means of lawful importation.

Under the conditions in paragraph five, GSI can transfer or sell the firearms to either: (i) a federal, state, or local law enforcement agency which certifies that the guns will be used in official duties; or (ii) an officer of a federal, state, or local law enforcement agency who certifies that he or she will use the gun in official duties. Individual law enforcement officers' purchase orders must also include a supervisor's certification, stating that the officer is authorized to carry a gun and is purchasing the Steyr AUG-SA for use in official duties. Attached to the Stipulation are sample certification forms and purchase orders for the purchasers to submit to the BATF.

The Stipulation also states that the BATF will either approve the sale or notify GSI that the sale does not comply with "the requirements of 18 U.S.C. § 925(a)(1) and/or the terms or this Stipulation. . . ." Section 925(a)(1) provides that the prohibitions of the Gun Control Act:

  shall not apply with respect to the transportation,
  shipment, receipt, possession, or importation of any
  firearm or ammunition imported for, sold or shipped
  to, or issued for the use of, the United States or
  any department or agency thereof or any State or any
  department, agency, or political subdivision thereof.

18 U.S.C. ยง 925(a)(1). As the government points out in its brief, once the BATF prohibited the importation of Steyr AUG-SA assault rifles under section 925(d)(3), section 925(a)(1) was the only provision under ...

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