SHIPLEY LEGAL DEFENSE

Guilty in El Paso?

We have tried and tried to write an update to John Shipley’s website but pain has stood in our way. We have always believed in our country and its’ legal system, so it is very hard to find the words when we know that the jury was intentionally misled.

Do you own more than 27 firearms? Have you ever sold a firearm and made a profit? Have you bought more than one gun per month? Do you collect military style or sniper rifles? If you answered yes to any of the above questions, you may be next.

The ATF took 28 firearms from John’s house. One rifle was a friend’s that John was going to sight in. Nine of the firearms were his Grandpa’s guns that were handed down to him. One pistol was a gift John gave to his wife. That means that of the 28 firearms seized by the ATF, John had 17 firearms in his collection. An ATF agent testified at the trial that John’s Grandpa’s guns could be part of a collection, but the military style rifles and 1911 pistols weren’t part of a collection. Do you collect military style rifles? Do you collect 1911 pistols? You should be outraged that the ATF is now trying to dictate what a collection is and what is not.

We have read the Rules and Regulations of the Bureau of Alcohol, Tobacco, and Firearms (ATF) and see no way that our son could be found guilty of the charges against him. A jury in El Paso found him guilty on all six charges. We believed that a person was innocent until proven guilty but not in El Paso. The Assistant United States Attorney’s (AUSA’s) office didn’t even produce an accounting of the $118,000 in “gross receipts” and when a retired Internal Revenue Service special agent who had been acknowledge for his exemplary service by the same AUSA’s office showed an actual loss in funds in John’s purchases, the AUSA could only respond by attacking the character of the IRS agent. The ATF agents testified that they did not take notes when they met and spoke with John about an official investigation into a gun that was recovered in Mexico. The testimony of the ATF agents had several conflicts and inconsistencies.

John Shipley was found guilty on all six counts.

Count 1—Dealing firearms without a license. According to the ATF Rules and Regulations, a dealer is defined:

“(c) Dealer in firearms other than a gunsmith or a pawnbroker. A person who devotes time, attention, and labor to dealing in firearms as a regular course of trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms, but such a term shall not include a person who makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of his personal collection of firearms.”

John Shipley was employed by the Federal Bureau of Investigation and made approximately $115,000 a year. The Assistant United States Attorney figured he made $118,000 “gross receipts” in 3 years. That means that all of the guns sold in 3 years were worth $118,000 without considering the original cost of the weapon. For instance, if a gun cost $5,000 and you sold it for $5,200 then according to the AUSA, you “made” $5,200. John kept his funds for his hobby of collecting guns completely separate from his household funds. He also enjoyed target shooting, hunting and collecting guns and his love of firearms was a hobby that also benefited him in his profession.

John’s attorneys computed a purchase and sale summary based upon the information provided by the government for 2003 to 2008. Here is the yearly breakdown:

Year Purchases Sales Gain/Loss
2003 120- $ 7,455.00
2004 61- $ 4,505.00
2005 1618+ $ 2,224.40
2006 1815- $ 287.27
2007 2324+ $ 6,434.00
2008 68+ $ 8,690.89
Totals81 Purchases66 Sales+ $4,937.02

Do the math. $4,937.02 divided by 6 years = $ 822.84 per year. Does this sound like his livelihood or do you think his livelihood was the $115,000 per year he made as a FBI agent? Remember that in order to be a dealer as defined by the ATF, you must buy and sell firearms with the principle objective of livelihood and profit. It is not merely that you made a profit.

John and his wife adopted their daughter in September of 2004. They adopted their son in August of 2005. That is why John started selling more guns in 2005. In January of 2005, John sold 14 firearms to raise money for adoption related expenses. This is allowable by law and the ATF agent testified that this was legal even though those 14 firearms were included in the indictment period. When they had two incomes and no kids, John didn’t have to sell a gun to buy another. That all changed when they adopted their kids. Instead of John taking money out of his kids’ college funds and savings accounts, he would sell a gun to buy a new gun. That’s why you see the sales and purchases are very close in 2005, 2006, 2007 and 2008.

Count 2—Causing a Federal Firearms Licensee (FFL) to maintain a false record. The allegation is that John was not the “actual buyer” of the firearm. There is a clear example on the BATF form 4473 that illustrates who the actual buyer is:

“Mr. Smith asks Mr. Jones to purchase a firearm for Mr. Smith. Mr. Smith gives Mr. Jones the money for the firearm. Mr. Jones is NOT the actual buyer of the firearm and must answer “no” to question 11a.”

Using the criteria set above and on the BATF form 4473, there are three elements of this crime:

  1. Someone must ask you to buy a firearm for them.
  2. Someone must give you the money to buy the firearm.
  3. You must buy the firearm and give it to them.

Count 2 involved John selling a firearm in a legal face-to-face sale in Texas to a member of the Deputy Sheriff‘s Office who testified on the stand that he did not ask John to buy the gun for him. The Deputy also testified that he never gave John money to buy the firearm. John ordered the gun and paid for it. Once John bought the firearm, the Deputy offered John more than what he had paid and John sold the gun to him. Besides the Deputy being a law enforcement officer, he also had a concealed handgun license.

Count 3—Causing a FFL to maintain a false record. John sold another firearm to the same Deputy who again testified that he had not asked John to buy a gun for him. The Deputy also testified that he never gave John money to buy the firearm. John ordered the gun and paid for it. Once John bought the firearm, the Deputy offered John more than what he had paid and John sold the gun to him. Besides the Deputy being a law enforcement officer, he also had a concealed handgun license.

Count 4—Causing a FFL to maintain a false record. John sold a weapon to a private security contractor whom John knew had a concealed handgun license. John bought the gun on the internet and according to the rules of the GunBroker, John was the official purchaser when he won the bid. John sent off a cashier’s check from his bank account for the purchase. John was scheduled to attend the Barrett sniper school when the contractor repeatedly begged John to sell him the weapon. He supposedly wanted to attend the same course with John. He gave a check to John for the amount (he shorted him $300). Because the weapon was a fairly rare weapon, John informed the contractor that he would not sell the weapon. Two days before John filled out the ATF form 4473, John called the contractor and told him that he was keeping the gun. John took delivery of the weapon and signed the 4473 form. Two days after signing the 4473, John tried to write him a check for the amount but he refused to take it. John relented and gave him the weapon because he convinced himself he was being selfish and John wanted him to attend the school with John. To this day, the gun has not been paid for in full and the contractor never attended the course.

Count 5—Causing a FFL to maintain a false record. John had discussed with the same private security contractor that he wanted to purchase a Larry Vickers Nighthawk tactical pistol. The contractor had seen one listed on the Internet and e-mailed John with a site that had one for sale. John went online and found the firearm and discovered that this was a prototype weapon that was sent to Ken Hackathorn for testing and evaluation. Included with the gun was a letter signed by Ken Hackathorn about the pistol being a prototype pistol that he used for evaluation purposes. Ken Hackathorn has trained US Military Special Operations forces, Marine FAST and SOTG units and is a contract small arms trainer to FBI SWAT and HRT. John bought the gun for himself and never sold it. It was taken by the BATF from John’s gun safe when they conducted a search warrant on John’s home. The contractor stated under oath that John bought it for him. Why would John have bought it for the contractor when the contractor saw it first and could have bought it himself? Why would the contractor have told John about it if he wanted it for himself? This wasn’t the first lie this contractor said at John’s trial. The contractor also said that John knew that the Night Vision scope that he gave to John was stolen from the military. This contradicted the testimony of the BATF case agent who testified that John had no idea that the scope was stolen by the contractor from the military. This contractor also lied another time during the trial by stating that John gave the BATF false records that omitted his name and the name of the deputy. John’s attorney had the BATF case agent read both the contractor’s name and the Deputy’s name from the book, showing that the contractor was lying under oath.

Count 6—Making a false statement to a federal agent. An ATF agent called John and said he was investigating a firearm they found going into Mexico and that it was last legally traced to John. John had informed him that he had sold the weapon legally in a face-to-face sale in Texas (to a qualified purchaser). He gave him information on the person who bought the weapon. The ATF agent said that they were doing a local investigation about guns going into Mexico and John agreed to help as much as possible. The agent said he wanted to meet John at a certain time to get the information. Since John only had a printer on his computer, John wrote by hand the information about guns he had sold locally. He did not include information about guns shipped and sold through a FFL to other localities nor did he include his Grandfather’s guns. At the trial the ATF agent then claimed that he had asked for John’s complete and original records and that John gave him a “fake” book. If the ATF agent had asked for all of John’s records, John would have told him that he used to keep his records on his computer and lost a lot of them when his computer crashed. John subsequently asked a local firearms dealer how they kept their records and the dealer advised John to buy a “dealer’s firearms record book.” In an attempt to keep personal records on his firearms, John recorded information in this book. The ATF agent admitted in his testimony that a private citizen does not have to keep records and they do not have to be accurate. When the agents were questioned in court, they stated that they did not make written notes from the meeting and John was not under investigation at the time.

The counts can be simplified:

  • Count 1. John’s livelihood was not derived by making $822.84 per year from selling firearms. It was derived from the $115,000 he made yearly at the FBI. He bought and sold guns to enhance his private collection and as such, he is not required to have a license to buy and sell firearms.

  • Count 2. John bought this gun for his collection. The Deputy testified that he did not ask John to buy this gun for him and that he never gave John money to buy this gun for him. The Deputy also testified that he heard John had this gun and he wanted to buy it from John. He made John an offer on the gun and John sold it to him.

  • Count 3. Same as count 2. John bought this gun for his collection. The Deputy testified that he did not ask John to buy this gun for him and that he never gave John money to buy this gun for him. The Deputy also testified that he heard John had this gun and he wanted to buy it from John. He made John an offer on the gun and John sold it to him.

  • Count 4. John bought this gun for his collection. A security contractor heard John bought this gun and he wanted it so he could attend the Barrett school with John. John paid for the gun from his bank account. The contractor gave John a check, but NEVER paid John in full for this firearm. John tried to refund his money because he intended on keeping the rifle, but he wouldn’t take John’s check. John eventually gave him the rifle 23 days after John bought it.

  • Count 5. John bought this pistol for his collection. John was never asked by anyone to buy this gun. John never received any money from anyone and this pistol was never sold to anyone.

  • Count 6. John never made a false statement to the ATF or misled the ATF. John offered to assist the ATF. John was asked to see information about the guns he sold to the deputy. John provided those records and more. John did not falsify the records. They were accurate. The ATF agent told John that he was investigating a local gun smuggling ring and John provided records that he thought would assist the investigation. The ATF never asked John for all his records. If they had, John would have told them that he didn’t have all his records because some were lost when his computer crashed. The information John gave the ATF was used in support of a search warrant. If they believed that John was lying and making false statements, why did they use his information to get a search warrant?

After 8 days of testimony and evidence, the jury deliberated less than 3 hours and found John guilty on all 6 charges. UNBELIEVABLE!!!

WHAT IS HAPPENING IN EL PASO?????

Once again we need your support. John intends to appeal this decision to the 5th Circuit Court of Appeals and he has exhausted his funds for his defense. We are attempting to retain an attorney that is recommended by the National Rifle Association, but we need to raise funds to continue this fight. John will be sentenced on July 8, 2010 by the Honorable David Briones, in the United States Court, Western District of Texas. We need your prayers, your continued support and any donations that you might be able to make. Please, go to the Donate button and help us continue the battle. We have lost the first battle, but we have not lost the war. Please share this with your friends, relatives and anyone that might be interested in preserving the Second Amendment Rights that we still have. If this war is not won, every gun owner in America will be required to hold a Federal Firearms License (FFL), the government will tell you how many guns you can buy or sell and they will tell you what guns can be in your collection. An ATF agent testified at this trial, that certain guns could be part of a collection, but military style weapons are not to be part of a personal collection. Is this what you want?

Again, thank you for your continued support and please share this with everyone you know.

Respectfully,

The Shipley Family