Crimp asked Lorner to examine Russell's FAL rifle for possible federal firearms violations. Lorner eagerly did so and came to conclude that the rifle was an illegally assembled "assault weapon" under Title 18 of the US Code. Section 921(30)(B)(iv) of the 1994 Public Safety and Recreational Firearms Use Protection Act (commonly referred to as the "Crime Bill") prohibits a detachable magazine, semiautomatic rifle made in the US after 13 September 1994 to have more than one of the following features:
a folding or telescoping stock
a pistol grip that protrudes conspicuously beneath the action
a bayonet mount
a flash suppressor or threaded barrel designed to accommodate such
a grenade launcher
Russell's rifle was an Imbel FAL receiver (made in Brazil under license by FN of Belgium) imported after September 1994, and assembled with a sufficient number of American-made parts to qualify as a domestic rifle. It originally had a pistol grip stock as its one "evil feature," and a previous owner had affixed a muzzle brake. Although muzzle brakes were not prohibited on post-ban semi-autos, a flash suppressor counted as an illegal second feature. In the opinion of ATF Agent Lorner, the muzzle brake on Russell's FAL "significantly reduced" the rifle's muzzle flash, and thus functioned as a flash suppressor — even though it had been sold for years as a muzzle brake.
In short, a flash suppressor was anything the ATF said it was.
This was deemed sufficient to indict Russell on felony possession of a banned "assault weapon." His bail was set by the Honorable Henry T. Fleming at $25,000. Russell had to put up his home as bond.
Based on an interview with a local gun shop owner (who had been threatened with an investigation), the ATF sought and received a warrant to search Russell's home. Owning an illegally assembled "assault weapon" was one felony; having also assembled it was another. The gun shop owner thought that the FAL had been sold without the muzzle brake, but wasn't certain. Lorner wanted to search Russell's home for evidence that he had purchased and installed the brake himself, which would support a second charge of assembly. Also, with any luck, Lorner would discover other contraband during the search. He had nothing to lose by trying.
Anticipating a probable raid, Russell had days earlier moved his home computer, books, and personal records to the ranch of his boyhood friend Chet Garland. His guns (all of which were legal) he had sold to Chet for $21 in US silver coin3. Once he was acquitted, Chet would sell them back to Russell for the same coinage. Russell also cleaned out his two bank accounts and hid the cash with another friend.
Russell was not at home during the ATF raid, which found nothing. They were prepared to torch through his gun safe but Russell had left it open — and empty. Fuming, agents deliberately trashed his home, leaving the front door off its hinges — his tropical aquarium smashed. Russell returned home to find a soaked carpet and dead, desiccated rare fish.
A hastily scrawled note had been dropped on the living room floor. It read, "Nothing taken. ATF."
Russell had been prepared to represent himself, but a Wyoming libertarian defense attorney, Juliette Kramer, offered to defend him pro bono. Although only twenty-nine, she was already a renowned advocate in the tradition of Gerry Spence. She had lost only her first two cases. Her courtroom brilliance was enhanced by her striking Irish/Hungarian beauty, long brown hair and flashing ice-green eyes. Her cross-examinations were piercing; her closing arguments captivating. She had a fighter's instinct for weakness and sensed precisely when to go for the kill. To underestimate "J.K." in, or out of, court was a serious mistake. Coming from a wealthy oil family, she could afford to practice for principle and specialized in Bill of Rights abuse cases. She particularly loathed the IRS, DEA, FDA, and ATF. Didn't care much for the FBI either. She once whipped the US Forest Service on a bogus firearm discharge case and they quit harassing shooters ever since.
Explaining her most recent pro bono charity, Miss (not "Ms.") Kramer told the local TV news, "My client Bill Russell has harmed no one. He has done no wrong. His only offense was to exercise his natural rights as a peaceable American under the Constitution. For that he has been charged with a federal felony. The US Attorney's office chose to falsely and maliciously indict Bill Russell because they knew that he could not afford an attorney. Well, now he doesn't have to afford one. It is my honor to defend this victim of injustice, and to accept a penny for my efforts would be a collaboration with the US Attorney's office in their goal to disenfranchise all of us from our God-given liberties protected under our Bill of Rights."
Lorner snaps off the TV. "Aww, shit! How'd that bitch hear about Russell?" turning to Assistant US Attorney (AUSA) Jack Krempler, whose office is in the Federal Building.
"Russell spread the word about his arrest to all of the gun-rights groups, and one of them must have called her," Krempler replies. "Their network has gotten pretty good these days. Our phones ring constantly."
"Yeah, thanks to the fuckin' Internet!" exclaims Lorner. "Whatever case we're working on, from Maine to Hawaii, it's as if it's happening right next door to some gun nut somewhere. Word breaks of a raid, and they're right there with their goddamned camcorders! Can't they be busted for interfering with federal officers in the performance of their duty?"
"Not unless they actually interfere. DEA got spanked pretty hard on this last year. A Circuit court ruled that since third-party recordings could be subpoenaed by the Government and defense alike they must be treated as evidence. To prevent an on-site recording is tampering with that evidence. If it happens during one of your raids, don't expect me to protect your dumb ass."
"Well that's great. Just fucking great."
"Watch yourself, Lorner. This case is a paper-thin beef already, and you know it. I didn't want this turd but Washington pissed and moaned that they haven't had a Wyoming ATF conviction in years and gave me the squeeze."
"Whaddaya mean 'turd'? It's a good case."
"Yeah, right. Flash suppressor, my ass. It's a muzzle brake."
"Hey, the law's the law, Krempler. If it 'significantly reduces' muzzle flash, then it's a goddamn flash suppressor. Russell's probably some militia dirtbag; I mean, who else would carry an assault rifle around in their fucking trunk? We're the ATF and we don't even have .308s! Those things are only good for armed insurrection. An example's gotta be made of these anti-government nuts. You're the prosecutor — you make it stick."
"Yeah, well, easier said than done. I'll tell you right now that voir dire will make or break this case. Muzzle brake, flash suppressor — they look about the same to me, and they're sure as hell going to look the same to John Q. Wyoming."
"Hey, have you been listening to me?," Lorner demands. "It doesn't matter what the damned things look like, only what they do. I don't give a shit what they say in their Shotgun News ads! If they significantly reduce muzzle flash, then they're flash suppressors."
"Yeah, and the 'significantly' part is real comforting. It's about as cutand-dried as 'reasonable.' What is 'significantly'? 10%? 25%? If I move to admit into evidence your nighttime firing video of his rifle with and without the device — and that's the only way this case can be won — Kramer will object on several excellent grounds."
"Well, that's your fucking problem. I catch 'em — you clean 'em. See ya in court, Krempler."
"Yes, and without that orange and brown tie this time. You looked like a carny. Stop by my office before court for a wardrobe check."
"Yeah, right. I'll wear one of my Armanis." Asshole.
Man must be penetrated in order to shape such tendencies [of obedience]. He must be made to live in a certain psychological climate.
[Propaganda] proceeds by psychological manipulations, by character modifications, by the creation of feelings or stereotypes useful when the time comes . . . . The two great routes that this propaganda takes are the conditioned reflex and the myth. (at 31)
— Jacques Ellul
Propaganda: The Formation of Men's Attitudes (1965)
It i
s not only the juror's right, but his duty to find the verdict according to his own understanding, judgment and conscience, though in direct opposition to the instruction of the court.
— John Adams, 1771
Casper, Wyoming
Federal District Court
September 1995
The concrete Richard Cheney Federal Building loomed over downtown Casper with the personality of a bomb-shelter. A gray, steady drizzle gave the four-story outpost of Occupation a particularly gloomy tone. Next week commences the trial of The United States v. William Olsen Russell. Middle names were apparently invented to let you know when you were thoroughly in trouble.
Some seventy jury summonses had been mailed out for the Russell trial, and 44 prospective jurors were being interviewed in what is called voir dire. A jury means 12 peers, and courts used to simply dragoon 12 random people off the street. One of whom could have been your mother, another a lifelong personal enemy. Twelve peers meant just that: twelve . . . peers.
Twelve seemingly average citizens.
Now Americans are no longer judged by their peers. Voir dire is a carefully crafted process which favors the Government by weeding out potentially sympathetic or independent-thinking jurors. Libertarian columnist Vin Suprynowicz bitterly referred to voir dire as "French for jury tampering." In income tax evasion cases, for example, the Government makes sure that every juror is a "Yes, sir!" Social Security card-carrying, Form 1040 filer who cannot fathom the proposition that the 16th Amendment was never duly ratified or that private-sector wages are not taxable "income" under Title 26 Internal Revenue Code.
ATF cases are notoriously weak in both law and in fact, and cannot withstand jurors who might be sympathetic, much less empathetic, to the accused. The ideal juror is one who has little or no experience with guns, viewing them as unnecessary — if not vaguely frightening — objects.
AUSA Krempler and the Honorable Henry T. Fleming spent the entire morning sifting through the lives of the 44 prospective jurors. Were they members of the NRA or any other gun-rights organization? Did they agree that the Second Amendment protected only the national guard? Had they or any of their friends or relatives ever been prosecuted for a federal firearms violation? Had they ever heard of FIJA4? Had they ever been a member of a militia? Did they own any firearms? If so, any "assault weapons"? Did they have any bumper stickers on their cars? Did they homeschool? What did they read at night?
At last it was Juliette Kramer's turn to question the jury pool. After thoroughly explaining the concept and history of "presumption of innocence" and "reasonable doubt" to 44 men and women, she notices a thin, nervous fellow who seemed distracted all morning.
"Mr. Urdang, if you had to render a verdict in this case right now, before trial, what would it be?" asks Juliette.
Thomas Urdang, a life insurance salesman, ventures an answer. "Uh, well, I couldn't really say. I haven't heard the evidence yet."
"But didn't you earlier agree that a defendant is innocent until proven guilty?"
"Uh, yes, I did."
"Well, if you believe that, then your verdict must be 'Not Guilty,' would it not?"
Urdang squirms in his seat, his face reddening. "Uh, yes, I guess it would."
"You guess it would?"
"Well, no — I mean yes. I, I mean if I had to, uh, render a verdict right now, it would have to be 'Not Guilty'."
"I see. Thank you, Mr. Urdang for coming downtown this morning," Juliette says evenly. "Your Honor?"
Judge Fleming nods to Urdang and says, "You're excused, sir. Please see the court clerk on the way out to receive your juror compensation. Thank you for your service today."
Thomas Urdang self-consciously rises and stiffly walks out.
Turning to the pool of jurors, Juliette carefully explains her point. "Ladies and gentlemen, you'll recall that I earlier mentioned the danger of platitudes. Platitudes are truths which have become familiar. Too familiar. That doesn't make them any less true — just less poignant. And so they pass through the mind undigested, like a pebble through a chicken. The vital truth to remember here is that in America, one is presumed innocent unless and until one is proven guilty beyond a reasonable doubt. Sadly, that truth called 'presumption of innocence' has become a platitude. It was a platitude for Mr. Urdang, else he wouldn't have answered the way he did.
Several members unconsciously nod at this.
"Now, I did not single out Mr. Urdang to embarrass him. On the contrary. I'd have preferred that he had said, 'Why, Not Guilty, of course!' I'd have preferred that 'presumption of innocence' was a living, breathing truth to him, as it must be with all of you. Ladies and gentlemen, we cannot 'go through the motions' here, floating on platitudes. An innocent man's future is at stake during this trial, and you hold it in your hands. So, I will ask you all, if you had to render a verdict right now, what would it be?"
"Not Guilty," the pool answers in unison.
Juliette scans the faces for any who somehow found this difficult. She has only a few peremptory strikes left and needs to use them wisely. "Thank you, ladies and gentlemen," she beams.
"Your Honor, I have no more questions for this panel," she says.
Jack Krempler leans over to whisper in his assistant's ear. "What'd I tell you? She got the entire panel to say 'Not Guilty' and there wasn't a damn thing I could do about it."
"Pretty shrewd," admits the assistant. "How's her trial work?"
"Very solid. Excellent prep, really good use of discovery — almost intuitive."
"Sounds pretty thorough."
"Yeah, she doesn't miss much during trial."
"Where's her weakness?"
"She doesn't like curveballs thrown at her. In Feldman we finally located a hostile witness and got him to testify on our last day, and it really threw her for a loop. Her cross was pretty weak."
"Oh, right!" recalls the assistant. " She still got him off, though."
"Yeah . . . she did," Krempler agrees.
"Any curveballs for her this time?"
"No, just a fastball," says Krempler with a wink.
US v. Russell
Day One
"Trooper Holgate, why did you search Mr. Russell's trunk?"
"Because the DEA K-9 unit alerted to the presence of drugs."
"Were any drugs found in Mr. Russell's trunk?" asks Juliette.
"No, ma'am."
"Were any drugs found in his car at all?"
"No."
"So, the DEA's drug-sniffing dog made a mistake?"
"It happens sometimes," Holgate allows.
"Yes, I'm sure it does," Juliette says, facing the jury. "So, if Mr. Russell had no drugs in his car, then why did you arrest him?"
"Because his rifle was listed in the NCIC database as 'stolen'."
"Had it been stolen?"
"Uh, no, ma'am. I made a mistake on the serial number when I radioed in for the NCIC check."
"Oh, so now you made a mistake. I see. Well, we're all human. The dog, too, I guess."
Hearty laughter circulates through the court, causing Holgate to frown. Juliette continues, "I'm curious though — what other mistakes did you make that afternoon?"
"Objection!" Krempler says.
Before Fleming can respond Juliette quickly interjects, "I withdraw the question, Your Honor."
Frowning, Fleming says, "Very well. Continue, Miss Kramer."
"Trooper Holgate, did you arrest the defendant for any other reason besides the alleged possession of stolen property?" Juliette asks.
"No, ma'am."
"So, you did not arrest Mr. Russell for violation of federal gun laws?"
"No."
"Then — aside from your mistake on the serial number — to the best of your knowledge on the afternoon of 24 May, his rifle was perfectly legal, was it not?"
"To the best of my knowledge, yes," he says, shifting uncomfortably. "So, if you had radioed in the correct serial number and properly ascertained that Mr. Russell's rifle was not stolen, then h
e wouldn't have been arrested at all, is that not true, Trooper Holgate?"
The young officer nervously glances at Krempler, who barely shakes his head. "Uh, that's right."
" . . . and none of us would be here today," Juliette concludes. "I've no further questions, Your Honor."
"Redirect, Mr. Krempler?" asks Fleming.
"No, Your Honor."
"Trooper Holgate, you may step down. You're excused, sir."
By the afternoon, however, things turn poorly for the defense.
Despite Juliette Kramer's objections over the video of Russell's rifle being test fired, it was shown in open court. A Technical Branch ATF agent had been flown in from Washington to explain the footage. The courtroom was darkened, and a TV/VCR was turned on. In a split screen, the rifle was fired simultaneously without and with the muzzle brake. The muzzle braked rifle had a much smaller flash plume, about half the size of the bare barrel plume. It was clearly a "significant reduction" of flash. When the lights came back on, Agent Lorner was wearing a very satisfied smirk.
Juliette Kramer, for the first time, looked worried.
Her cross-examination of the Washington ATF agent yielded nothing. While he admitted that individual rounds of ammunition varied slightly in powder weight, he would not allow that such was responsible for the greater muzzle flash of the bare barreled rifle. The comparison test had apparently been performed fairly, but something about the video disturbed Juliette. She sensed some kind of trick, but couldn't nail it down.
After a redirect of the witness, Krempler rests the Government's case. He sits down, confident that J.K. was going to lose this one.
Molon Labe! Page 4
