DOBBS: A gun owner, tonight, is awaiting sentencing from a federal judge. David Olofson was convicted of, "transferring a machine gun," end quote, after he loaned a neighbor his 20-year-old AR-15. The semiautomatic rifle malfunctioned on the firing range, firing two bursts of rounds of three shots. It jammed each time. And the constitutional rights of gun owners are at risk in this country, and particularly in Wisconsin. For one man who deserves, it appears, far better. We'll have his story next.
Stay with us. We're coming right back.
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DOBBS: A gun owner, tonight, is awaiting sentencing from a federal judge. David Olofson was convicted of, "transferring a machine gun," end quote, after he loaned a neighbor his 20-year-old AR-15. The semiautomatic rifle malfunctioned on the firing range, firing two bursts of rounds of three shots. It jammed each time.
Olofson's sentencing has now been delayed because the court is now considering a new motion from the defense.
Bill Tucker has the very important story on the Second Amendment and truth in justice in America from Berlin, Wisconsin.
BILL TUCKER, CNN CORRESPONDENT (voice-over): The government has a letter that the defense wants it to share with the court. The letter is from the Bureau of Alcohol, Tobacco and Firearms to the manufacturer of Olofson's rifle. It could be the bombshell that he needs to gain himself a trial.
According to those who say they've read the letter, it acknowledges that the AR-15-style rifle made by Olympic Arms SGW and owned by Olofson occasionally is prone to a malfunction that results in multiple burst fires.
LEN SAVAGE, HISTORIC ARMS, LLC: It shows us that the firearm can accidentally go full auto without the user being aware and that the parts needed to be replaced under recall. A government-mandated recall on Mr. Olofson's rifle.
TUCKER: The only copy of the letter is in ATF files. The company's document was lost in a fire. The ATF successfully kept it out of Olofson's trial, arguing that it contained privileged tax information.
But a separate internal ATF memo written in the '80s from the then-general counsel's office that was obtained by Olofson's attorneys appears to show that the letter is not and should not be considered a tax document.
Olofson's lawyers and Olofson himself are hopeful of a judge- reversed decision.
DAVID OLOFSON, GUN OWNER: I'm glad he announced the delay. It shows that he's taking the information that we brought forward to him in a very serious light.
TUCKER: The prosecution remains silent, as they have throughout the trial, saying they will have no comment until the trial ends with Olofson's sentencing.
TUCKER: Now it was here at the Berlin Conservation Club, Lou, that the rifle owned by Olofson misfired the couple of rounds, jamming as it did. The club has a strict anti-automatic weapon policy, so when that malfunction happened, it drew attention and the police were notified. That's how this case came to the attention of the ATF.
Now, there are three motions currently pending before this judge, Lou. The first one by the defense is for an outright acquittal. The second is for the disclosure of this letter. And the third is for a new trial.
It's not likely, Lou, I'm told by lawyers, that this judge will throw the case out, because they don't like to do that in jury trials. But they do say it's possible that this judge takes a good look at this letter might decide that a new trial is in order -- Lou.
DOBBS: How did this new letter surface?
TUCKER: This was done through discovery. A number of the sources in this case, Lou, talked about the fact that this letter existed. And in fact, some time back I spoke with the owner of Sheetz (ph) and Gunworks who told me he had read the letter. He had a copy at one point. He remembered the general...
DOBBS: We're talking about a man facing a felony conviction here and sentencing...
DOBBS: ... for years of his life. And these attorneys, this judge, are playing games over the content of that letter, which absolutely absolves him?
TUCKER: The U.S. attorney told the judge they could not share the memo with him or with the court because it contains privileged tax information. This new internal memo that Olofson's attorneys have found indicate, Lou, that's just not a fact, that he should have seen that letter and it apparently should have been introduced into trial. But the judge did not allow it the first time around.
DOBBS: Well, the judge didn't allow it. At this point, it was like there's reason for a very wide-ranging investigation into why a man who has served in the United States Army reserves, served his country, and done so with an honorable discharge.
I mean, the treatment by ATF and this judge and these prosecutors and, frankly, the absolute lack of energy and vigor on the part of the defense attorneys. And where in the world has been the National Rifle Association?
TUCKER: The National Rifle Association, Lou, has been watching the case from a distance. They've been waiting to be invited in. They have at this point been invited into the case, and they're waiting for the sentencing phase. If there's a new trial or if there's an appeal, there are indications that they could become actively involved in the case. They don't like to thrust themselves into cases unless asked.
DOBBS: Why in the world -- why in the world would anybody be waiting here when a man's freedom and his rights hang in the balance? This is absurd.
TUCKER: It is a terrific question, Lou. It's great. Remember, this is not a man with any prior criminal convictions. It's not a man with a history of violence. This is, as you point out, an honorably discharged man of the U.S. Army.
DOBBS: And a man with a family sitting there in a small town in Wisconsin, being treated like an international gun runner. Somebody -- somebody had better get their heads on straight. But at least -- at least appears this judge may be awakening to the need to serve justice in his case.
We thank you very much, Bill Tucker, from Berlin, Wisconsin. Appreciate it.
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DOBBS: (continues) - The Law Enforcement Alliance of America says now that any sentence for Olofson would be too severe. The Law Enforcement Alliance said Olofson did, in fact, not commit a crime.
Ted Deeds is the national spokesman for the alliance. And the alliance, by the way, is normally on the side of law enforcement and the prosecutors. So his statements, the alliance's statements here on behalf of Mr. Olofson are significant.
Joining us from Washington, we appreciate it. Tell them. I mean, I -- as I hear what is going on in this case, I'm getting furious. I don't know about you.
TED DEEDS, LAW ENFORCEMENT ALLIANCE OF AMERICA: Lou, you should be getting mad. And just a moment to give kudos to you. Your programming is the only program that's covering this story. And the reporting you've done with Bill Tucker deserves to be held out, highlighted. And good job. Thankfully, I hope other people in the media follow your lead.
DOBBS: Well, I appreciate that. We're used to being alone here. Sometimes it just takes a while for folks who are away from them.
The reality is the Second Amendment in this country is precious. All of our constitutional rights are.
But this case with Olofson, I mean, this is a man who served his country. He has a family and is being treated like some sort of sinister a thug. And we could not find any evidence that this man has ever bent a blade of grass in the wrong direction.
DEEDS: Normally, Lou, as you know, people in law enforcement look at either the actor or the act. And if the actor is a clean person who's not a gang-banger, rapist, pedophile, and the act that he is alleged to do. You look at it and try to balance it.
Prosecution decisions are based on, usually, bad actors or bad acts or both, such that the public policy, the public safety concern is addressed by the prosecution.
What it seems to me, that when you look at the Bureau of Alcohol, Tobacco and Firearms, they've had a long history, 30 years plus, of having problems, it seems, with agents that can't kind of keep it between the lines.
In this case, you had an agent who was supervised by two levels of supervisors. So the agent didn't apparently use their discretion, didn't apparently use common sense and didn't have, it seems from our perspective, decent supervision. Two supervisors within that chain of command let this case go forward.
And then, as you know, the ultimate check and balance is the independent United States attorney's office. They're supposed to review the case, see if it merits prosecution, see if the public interest is served by spending the time and energy to bring the full weight of the U.S. government down on the individual.
Normally, you know, we cheer when they bring it down on a drug dealer or rapist or what have you. In this case, none of those facts are present. And I think there needs to be some grown-up leadership at the BATF. You know, there is no leader currently. As I understand it, the nomination is before Congress.
Congress has bills before it that they could pass to send a message. They could change the law. They could also cut funding or do other things. The leadership needs to step up to the plate here and there needs to be a grown-up in charge.
DOBBS: Has your organization suggested to any of the law enforcement agencies, the prosecutors that, for crying out loud, somebody assert adult, responsible leadership here?
DEEDS: Lou, police in America cannot police effectively without the trust and support of the communities they serve. Most of the police departments and agencies in this country are relatively small.
Here you have a national agency that's had a reputation of spotty performance over three decades. And they come in, and they get the local cops to kind of do their dirty work, do the SWAT service, do the dynamic entry when, from all reports, this gentlemen voluntarily presented himself to a local chief of police.
I mean, what's going on? The locals are going to follow the federal agency's lead, because they trust them and they should. But if that federal agency demonstrates that they can't be trusted, they're undermining all of the public support.
Anybody out there in this country that supports the Second Amendment that has one of these guns has to be sitting at home saying, "This isn't the first case." There's another case that came out of the Ninth Circuit. And so they've proven that they...
DOBBS: And reversed. And reversed.
DEEDS: And reversed on appeal. But Lou, just like you've been saying, they took the time to bring the full weight of the federal government down on innocent people. And people should be concerned. They should be up in arms, and they should be demanding some reforms.
DOBBS: Ted Deeds of Law Enforcement Alliance, we thank you for being with us. We appreciate it.
DEEDS: Thanks for having us on, Lou.