Here is some more news on the court case about the bump stock. Read the background articles first to get an idea of what happened for the Defendant to get everyone's attention in the articles below:
Ajay Dhingra drew the authorities’ focus after he sent an email asking former President George W. Bush to “send one of your boys to come murder me,” records show.
www.nytimes.com
A federal grand jury has indicted a 43-year-old Houston man on four counts of firearms violations including possession of a machine gun, specifically, a bump stock
www.justice.gov
WASHINGTON (AP) — A Texas man is the first person to be charged under a federal ban on bump stocks, devices that allow a semi-automatic firearm to fire rapidly like a machine gun, the Justice...
apnews.com
Here is a video on the latest development. Someone needs to tell this guy to clean up his on-screen image. Nevertheless, the content of his video is an excellent segue for more information.
Like him and the rest of you, I get aggravated when someone cannot cite source material. So I downloaded some documents from the Federal Court's website.
On August 17, 2019, a complaint was filed in the US District Court for Southern Texas. The complaint alleges that he violated the statutes which prohibit the possession of firearms by a person adjudicated as mentally defective and unlawful possession of a machine gun (bump stock).
There was the usual pre-trial activities and pleadings but I didn't bother to download all that because it costs me money and I wanted to get to the crux of the matter.
On November 17, 2020 the Court's Docket has an entry which states:
"Minute Entry for proceedings held before Judge Gray H Miller: Stipulated BENCH TRIAL as to Ajay Dhingra held on 11/17/2020. Waiver of jury trial executed Opening statement by Government. Oral motion to dismiss Count 1 is GRANTED. Government's exhibits 1-7 ADMITTED. Joint stipulation executed as to Counts 2-4. Government's witness: Krishan Dhingra. Government rest. Defendant's closing argument. Defendant rests. Defendant found guilty on Counts 2-4. Defendant request expedited presentence report. Order for presentence investigation to be entered. Appearances: Ralph Edward Imperato, Thomas S Berg.(Court Reporter: D.Smith) Deft remanded to Custody, filed.(rkonieczny, 4) (Entered: 11/18/2020)"
On that same date the next entry was made:
"DISMISSAL OF COUNTS on Government Motion as to Ajay Dhingra. Ajay Dhingra (1) Count 1 (rkonieczny, 4) (Entered: 11/18/2020)"
I could not find anything on the site which would indicate why the Government decided to dismiss count 1; illegal possession of a machine gun (bump stock).
According to this article it appears that the attorneys for both sides met outside the courtroom or in the Judge's chambers. The Prosecution knew that a retired ATF Agent was prepared to testify that the bump stock was not a machine gun. Retired Agent Vasquez already had a reputation that preceded him because of his testimony in other cases.
In Houston just yesterday, a federal prosecutor appears to have gotten cold feet. Right before the trial began, in the face of an ATF expert prepared to testify that bump stocks do not a machine gun make, the prosecutor withdrew the bump stock possession charge, proceeding only with charges...
www.thetruthaboutguns.com
I'm not an attorney but play one on the internet. One thing that I've learned is that Prosecutors throw spaghetti against the wall to see what sticks in a court case. The Defendant in this case, waived a trial by Jury.
IMHO, that changes the dynamics of a trial. Sometimes, attorneys on either side can get away with arguments based on sensation or emotion in front of Juries. Judges aren't immune from that but are supposed to weigh the evidence and testimony in an objective manner.
Even though they throw spaghetti against the wall, they always want to try a case that is open & shut for them. They don't like getting embarrassed in the courtroom either. Not wanting to be the first attorney to fumble the first case on a bump stock ban, it's my guess that the Prosecutor decided to dismiss count one of the charges.
He still had three of the original four charges in the bag and could go home at the end of the day to declare victory.
On November 17, 2020, the Defendant was found guilty of counts 2-4. He sentenced on January 19, 2021 to five years of probation. Attached is the best "source material" that I can come up with.
Everyone can draw their own conclusions but I will offer my opinion. I'm not a lawyer and have to say that.
IMHO, this would have been the best case to try a person on the bump stock ban. The material evidence was there. The testimony linking the evidence to the Defendant was solid. The facts of were undisputed.
What was going to be disputed was whether or not the bump stock fit the legal definition of a machine gun as congress had written in the NFA. That is what the case hinges on. What does the law say? The ATF cannot make law.
The Defendant had a strong witness in Retired Agent Vasquez. The weight of his testimony to settle two material questions of fact before the court would have been significant. Remember that in a criminal trial it is not the "preponderance" of evidence that is essential for the Trier of Fact decide upon but the "clear and convincing" evidence presented.
The expert witness would have been able to testify that the bump stock was not a machine gun but merely an accessory. By itself the bump stock is merely a part of a bigger piece of equipment.
When it is attached to the firearm that's when an argument could be made that the entire firearm with bump stock attached could be defined as a machine gun. The expert witness, would have been able to explain to the court that the bump stock and the entire firearm was not a machine gun as fully automatic fire could not be attained with a single pull of the trigger.
On the question of law, the expert witness would be able to show the court that an ATF regulation is not law but meant to promulgate rules for enforcing the NFA. That's something that should be obvious to any Judge but the expert witness would be able to clear up any confusion or questions in the Court's mind.
So what am I getting at? IMHO, if you got the money to retain Retired Agent Vasquez as your witness, go shoot your bump stock equipped rifle. Go shoot it if you feel lucky and don't mind risking the prison time to be a test case for the bump stock ban.
www.houstonchronicle.com
