21668 EXTENSIONS OF REMARKS August 2, 1996 EXTENSIONS OF REMARKS INSTITUTIONAL PERJURY So the information on the 728,000 weapons ies, memoranda, correspondence, et cetera, that are in the data base has to be 100 per­ admiring the problem. The only thing missing cent accurate. Like I told you before, we tes­ was any attempt to correct the problem, or to HON. DAVID RJNDERBURK tify in court and, of course, our certifi­ OF NORTH CAROLINA cations testify to that, too, when we're not reveal it to anyone outside the agency.s IN THE HOUSE OF REPRESENTATIVES physically there to testify, that we are 100 Justice has now commenced the painful Friday, August 2, 1996 percent accurate. chore of advising every NF A defendant in the How bad was the error rate in the country of the situation. It did this with a re­ Mr. FUNDERBURK. Mr. Speaker, on Octo­ NFR&TR? Busey again: cent mass mailing by U.S. attorneys to de­ ber 18, 1995, Thomas A. Busey, then Chief of When I first came in a year ago, our error fense lawyers and def end ants of relevant the National Firearms Act Branch of the Bu­ rate was between 49 and 50 percent, so you BA TF documents, including the Busey tran­ reau of Alcohol, Tobacco and Firearms-here­ can imagine what the accuracy of the script. after BATF-made a videotaped training pres­ NFRTR could be, if your error rate's 49 to 50 The direct consequences of this institutional entation to BATF headquarters personnel dur­ percent. perjury are just now beginning to occur. In ing a rollcall training session. Rollcall training Does anyone recall the phrase, "Hey, close Newport News, VA, on May 21, 1996, U.S. is weekly or periodic in-house training for enough for government work"? District Judge John A. MacKenzie, after re­ BA TF officials-a routine show and tell where­ Consider this matter in its starkest terms: a viewing the Busey transcript, promptly dis­ by bureaucrats learn about each other's duties senior BATF official lecturing other senior missed five counts of an indictment charging and functions. BA TF officials at BA TF national headquarters John D. Leasure with possession of machine­ Busey's National Firearms Act Branch ad­ in Washington, DC, declares openly and with­ guns not registered to him.6 Leasure, a Class ministers the National Firearms Act of 1934,* out apparent embarrassment or hesitation that II NFA manufacturer, had received BATF the taxation and regulatory scheme governing BATF officers testifying under oath in Fed­ transfer approval for the five guns, but then machineguns, silencers, short-barreled rifles eral-and State-courts have routinely per­ decided to void the transfers and keep the and shotguns, destructive devices, and so jured themselves about the accuracy ·of official guns, as he was legally permitted to do. He forth. In his capacity of NFA Branch, Chief government records in order to send gun-own­ promptly faxed the voided forms 3 to NFA Busey was the official custodian of the Na­ ing citizens to prison and/or deprive them of Branch.8 tional Firearms Registration and Transfer their property. Just who is the criminal in these BATF subsequently raided Leasure and Record-hereafter NFR&TR-mandated by 26 cases? charged him with illegally possessing the five u.s.c. § 5841. All this was too brazen for even some BATF NFA firearms which, according to the Busey's presentation was anything but nor­ officials to stomach. Acting on tips from sev­ NFR&TR, were registered to someone else. mal, routine, or customary. In describing the eral BA TF officials-there are honest men and The Government ignored the fact that on the NFR&TR, Busey made the startling revelation women in government, even in BATF-1 date Lea Sure said he voided the transfers that officials under his supervision routinely promptly filed a Freedom of Information Act 4 there was a 21-minute call on his toll records perjure themselves when testifying in court demand precisely describing the Busey tape. from his fax number to NFA Branch's fax num­ about the accuracy of the NFR&TR. The first reaction was predictable. After re­ ber-at a time when he could have had no Every prosecution and forfeiture action viewing the incriminating tape, BATF officials idea he would one day be prosecuted for con­ brought by the United States and involving an discussed whether they could get away with tinuing to possess the guns. Rather, the pros­ allegedly unregistered NFA firearm requires destroying it. Wiser heads prevailed; obviously ecution produced NFA Branch firearms spe­ testimony under oath by a duly authorized any outsider who knew of the tape probably cialist Gary Schaible to testify as custodian of custodian of the NFR&TR that after a diligent would learn of its destruction-and I would the NFR&TR that the Government's official search of the official records of which he/she have. Or perhaps all the official shredders records did not show any voided transfers and . is custodian, no record of the registration of were on the loan to the White House. the firearm in question was found-or was therefore Leasure was in illegal possession of After much toeing and froing with a dis­ 9 found but showed a different registrant than mayed Department of Justice a transcript of the guns. the person being prosecuted.2 An alternative the Busey tape was sent to me in February In essence Schaible was testifying that "We method of proving the same facts is by admis­ 1996. The Department of Justice was dis­ can't find an official record and therefore the sion into evidence of a certified copy under of­ mayed because the Busey tape was clearly defendant is guilty." What we now know is ficial Treasury Department seal of a similar Brady material. Every defense lawyer knows that Schaible should have testified that "We written declaration by the custodian.3 This is a that under the Supreme Court's 1963 decision can't find half our records-even when we critical element of the Government's proof, in Brady v. Maryland, 373 U.S. 83, the govern­ know they're there-and therefore we're not and, according to Busey, occurred 880 times ment is required in all criminal prosecutions to sure if anyone is guilty." in 1995 alone, presumably fiscal year 1995. provide the defense, in advance of trial, with The Government's case was not aided Busey began his rollcall presentation by ac­ any evidence tending to show the defendant's when Schaible was forced to admit on cross­ knowledging that "Our first and main respon­ innocence. Failure to do so can result in dis­ examination that two NFA Branch examiners sibility is to make accurate entries and to missal of an indictment, reversal of a convic­ were recently transferred because they had maintain accuracy of the NFRTR." Moments tion, or other sanctions. Willful failure to been caught shredding NFA registration docu­ later Busey makes the astonishing statement produce Brady material can constitute con­ ments in order to avoid having to work on that "when we testify in court, we testify that tempt of court, professional misconduct or them.10 Note that they were transferred. Not the data base is 100 percent accurate. That's even a crime. disciplined. Not fired. Not prosecuted. Not de­ what we testify to, and we will always testify The Busey tape was clearly exculpatory and stroyed in place. Transferred. Just who is the to that. As you probably well know, that may clearly implicated every National Firearms Act criminal in these cases? not be 100 percent true." prosecution and forfeiture in living memory. It is too early to predict how many new Busey then goes on for several minutes de­ Worse yet, Busey was only the tip of the ice­ trials, appeals and habeas corpus actions will scribing the types of errors which creep into berg. When the fog had cleared Justice result from this affair. Also of importance is the the NFR&TR and then repeats his damning learned that the NFR&TR inaccuracy problem number of convicted felons presently suffering admission: had been the subject of internal BA TF discus­ legal disabilities 11 from flawed firearms con­ sion since at least 1979. BATF's files were re­ victions and what effect the Busey disclosures *Footnotes at end of article. plete with minutes of meetings, statistical stud- will have on their situation. e This "bullet" symbol identifies statements or insertions which are not spoken by a Member of the Senate on the floor. Matter set in this typeface indicates words inserted or appended, rather than spoken, by a Member of the House on the floor. August 2, 1996 EXTENSIONS OF REMARKS 21669 The indirect consequences of BA TF's con­ some impressive sticker prices, are also forfeit 1f SUB-ACUTE CARE AT NURSING used in any violation of the NFA. See 26 U.S.C. duct will not be so readily apparent but are po­ §5872. HOMES tentially devastating. All across the country as­ io We are left to conjecture where the NFA Branch sistant U.S. attorneys, U.S. district judges, and shredder is located in relation to its fax machine. HON. ELIOT L. ENGEL other Federal and local law enforcement offi­ 11 In addition to the loss of civil rights imposed on OF NEW YORK cials are going to learn what most defense convicted felons by the laws of most States. felons permanently lose the right under federal law to pos­ IN THE HOUSE OF REPRESENTATIVES lawyers and gun dealers have known for years sess firearms, as well as being potentially debarred and what the aftermath of Waco and Ruby from service in the armed forces.