Title 26 of the United States Code has proven to be a powerful weapon for federal agents combating the proliferation of machine guns, preferred tools of the drug-trafficking trade. The law makes it a crime to possess or sell unregistered machine guns and calls for penalties of up to ten years in prison and $250,000 in fines for violators. And it permits the government to seize cash, along with boats, planes, cars, motorcycles -- all manner of vehicles used in the commission of machine gun-related crimes.
The war on automatic weapons, however, was far from Bill Avrich's mind in January 1991, as he drove his black, twin-turbo 1990 Nissan 300ZX to an acquaintance's North Miami home to drop off a World War II-era machine gun. Avrich, a collector of vintage and exotic firearms for more than a decade, sold the fully automatic 9mm Sten Mark II, along with ammunition clips and a camouflage carrying pouch for bullets, a British field manual, and an owner's manual, for $1000.
Seven months later federal agents from the U.S. Bureau of Alcohol, Tobacco, and Firearms (ATF) appeared at his house in Surfside, arrested him on a charge of possession of an unregistered firearm, and confiscated his Nissan on the grounds that the car had been used to deliver the gun.
It's been nearly a year since Avrich gunned the engine of his $36,000 pride and joy, and if federal agents can convince a civil court judge to adhere to the letter of the law, ATF agents will be given the go-ahead to keep the keys. "I wish someone would please explain this to me," a baffled Avrich implores. "I mean, at what point does justice step over the line of fairness? I admitted I screwed up. I am paying the price. But how far am I supposed to go? It seems to me the punishment here clearly and grossly outweighs the crime."
A 34-year-old former schoolteacher now working as a real estate salesman, Avrich says the debacle began in California back in 1984, when he made a trade with an ex-Los Angeles County deputy sheriff: a properly registered Uzi machine gun for the Sten. "He guaranteed it was registered and told me not to worry about it," Avrich recalls. "He said if anything ever happened, it would come up under his name. So I didn't even think about it when I decided to sell it."
What Avrich didn't know when he decided to sell the Sten was that the buyer, whom Avrich had met while working as a doorman at a Biscayne Boulevard strip club, was a confidential informant for ATF. "I'd already sold him a gun before," says Avrich, recounting a prior transaction that involved a 9mm handgun. "So it didn't seem like any big deal."
According to court records, however, it was a big deal. On January 25, 1991, the informant called ATF special agent John Meenaghan to inform him of Avrich's offer. Five days later Meenaghan gave the informant $1000 in government funds, and that night, when Avrich arrived at the informant's house, Meenaghan was secretly watching and tape recording the transaction. After Avrich left, Meenaghan confiscated the weapon.
Under Title 26, it is illegal to possess a machine gun without proper registration. To purchase and register a machine gun, a buyer must be photographed, fingerprinted, must pass an extensive background check, and must also receive approval from the Washington, D.C., office of ATF and from the top-ranking law enforcement official in the municipality in which the buyer lives. The seller also must send a sale application to ATF. (As of 1986, it is illegal to even possess a machine gun that was not registered with the federal government prior to that year.)
In August of last year, a federal grand jury indicted Avrich, whereupon he was arrested and his car was seized. On December 13, Avrich pleaded no contest to one count of possession of an unregistered firearm. According to court records, because no other criminal aspects (e.g., drugs or other weapons) were involved in the sale, and because Avrich had no prior criminal record, is undergoing psychiatric counseling for stress, and had possessed the weapon since 1984, U.S. District Judge Donald Graham allowed the indictment to be amended, at the request of attorneys for both sides. Instead of stating that Avrich possessed the weapon "on or about January 30, 1991," the indictment was changed to read "on or about October 1, 1990," when sentencing guidelines were more lenient. On February 28 of this year, Graham sentenced Avrich to three years probation with six months of house arrest -- he can leave his home only to work and eat -- and ordered him to continue psychiatric care.
In a separate, civil proceeding, the U.S. Attorney's Office filed suit to keep Avrich's car, stating that the Nissan was used to "transport, carry, conceal, and convey contraband articles, specifically an automatic machine gun."
Pure greed, responds Avrich, who has retained an attorney to help him win back his car. "What are they gaining, except enriching themselves?" he asks. "They are not seizing assets that were criminally obtained or used except for the fact that an unregistered gun happened to be in my car. That is not enforcement of justice. There would be more rationale in sending me to jail than keeping my car for this offense. If my crime was so great as to warrant taking my car, why did the judge give me probation? He obviously didn't think it was that serious."
In the eyes of the federal government, however, all machine gun-related crimes -- including those as seemingly innocuous as the failure to register a firearm -- are equally serious, says ATF spokesman Bruce Snyder. "Possessing and selling an unregistered machine gun is a crime of violence in itself," Snyder says. "It's no different than a drug trafficker. Just because the trafficker doesn't have drugs with him when he buys the machine guns to protect his next load doesn't make it any less serious a crime. Besides, the criminal side has nothing to do with this seizure, which is why they are tried separately. The law allows us to seize this property legally and rightfully just as if it had been narcotics involved."
The U.S. Attorney's Office, which will argue the government's seizure case in court, agrees. "The car we're talking about was seized by due process of law," says Andres Rivero, an assistant U.S. attorney. "What should happen with this property will be decided in a court of law."
Avrich's house arrest is scheduled to end late this month, after which he can come and go as he pleases, unfettered by "fascistic" probation officers who have required him to wear an electronic monitoring anklet even though the court did not require it. (Frank Schwartz, deputy chief of the U.S. Probation Office, says cases under supervision by his office are confidential, but electronic monitoring is required by policy in this district.) While he awaits a court date for his seizure case, Avrich is remodeling a house he bought in Miami Beach, working as a real estate agent, and driving around town in a comparatively sedate 1989 Honda Accord.
"You would never expect this type of thing to happen in the United States," he says of his battle with federal seizure statutes. "Maybe under a dictatorship, but not here. I guess the only thing we can do is shout loud enough and threaten some public outcry, and then maybe they will be a little more discriminatory about who they grab possessions from. But Lord knows how many people have already been had like this.
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