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Posted: 6/12/2003 11:31:47 AM EDT
[url]http://www.azstarnet.com/star/today/30612POLICEINDICTMENT.html[/url]
A Tucson police lieutenant was indicted Wednesday on a federal charge that he claimed to be the buyer of a gun that was actually purchased for someone else, officials said. Michael J. Lara, a lieutenant for 11 years and department veteran of 20 years, "made a false statement with respect to information required by federal law," said Harriet Bernick, a spokeswoman for the U.S. Attorney's Office in Phoenix. Bernick said the indictment alleges Lara purchased a firearm in November and, on the required federal transaction record, stated he was the buyer when in fact he acquired it for someone else. The charge against Lara carries a maximum penalty of five years in prison and a $250,000 fine, Bernick said. Michael Piccarreta, Lara's attorney, said the charges are unfounded and there was no intent to deceive anyone or commit any crime. Piccarreta said Lara bought the gun for a person he knew who was concerned about work safety because the person handled a lot of money. Lara and the individual split the cost of the gun. The individual, whom Piccarreta declined to identify, was authorized and licensed to own and carry a firearm and had a concealed weapon permit, he said. "The other person easily could have bought the gun with no impediment. There's no criminal intent, there's no intent to mislead anyone," he said. The Bureau of Alcohol, Tobacco, Firearms and Explosives "is the king of nitpicking, technical, pinhead cases," he said. Piccarreta said the law exists to prevent people from purchasing guns for people who can't do so themselves and was misapplied in Lara's case. Lara was simply assisting the individual because he had the time available and expertise to buy the gun. Stating he was the buyer was nothing more than a minor error in filling out the form, Piccarreta said. "It's filling out a form improperly, and overzealous federal agents are trying to turn it into a serious federal crime," he said. "It borders on malfeasance." Lara was indicted after an ATF investigation. Sig Celaya, the resident agent in charge of the Tucson ATF office, declined to discuss the investigation and referred questions to the U.S. Attorney's Office. Lara turned in his duty firearm and has been assigned to administrative duty within the Police Department since March 25 based on the investigation, said Sgt. Marco Borboa, a department spokesman. The department turned over the investigation to federal authorities Nov. 25, he said. In light of the federal indictment, the department will initiate an administrative review of the criminal complaint to determine Lara's future employment status. He will remain on administrative duty until the decision is made. Borboa would not comment specifically, but said that in cases such as this, it would be "typical that the chain of command would recommend termination to the chief of police." Piccarreta called the case one of the most ridiculous he's seen. "It's a perfect example of form over substance. No good deed goes unpunished," he said. "I can't fathom any jury would do anything but throw this case out in a New York minute."
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Seems like they would have better things to do.
Link Posted: 6/12/2003 11:58:46 AM EDT
[sex] <--- ATF
Link Posted: 6/12/2003 12:18:56 PM EDT
That's the rule. I hate those stupid rules but jeez we all know they are there and that the Feds live for and love to stick it to anyone who makes a little mistake like this. What was this guy thinking?
Link Posted: 6/12/2003 12:25:06 PM EDT
The whole thing doesn't make sense. Private transfers are legal here. It's perfectlty legal to by a gun and sell it or give it away. This is about the intent of the purchase while filling out the form. If he would have answered YES instead of NO he would not have been able to buy the gun. He was doing a friend with no criminal record a favor cause he had the time. I think that's all he was thinking. I can't figure out how the hell this came up in the first place. Verry wierd. But if you take the story at face value, it's total BS, and although this most likely will get kicked or plead, he's going to loose his badge.
Link Posted: 6/12/2003 12:41:24 PM EDT
Link Posted: 6/12/2003 6:09:00 PM EDT
That's pretty damn amazing. I've called the ATF multiple times for felons with firearms and they don't even return phone calls yet they have time to pursue this questionable case????
Link Posted: 6/12/2003 6:33:54 PM EDT
I wonder how they even found out!
Link Posted: 6/12/2003 6:54:09 PM EDT
50% of the cost was a gift. This is stupid.
Link Posted: 6/13/2003 4:07:10 AM EDT
Gee, it sounds like the Lt. did something wrong and got caught. Too bad. I wonder if you guys would be this upset if he was a civilian?
Link Posted: 6/13/2003 5:34:31 AM EDT
I wonder if you guys would be this upset if he was a civilian?
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I can only speak for myself: YES! Jay
Link Posted: 6/13/2003 5:47:46 AM EDT
Originally Posted By markm: I wonder how they even found out!
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Guessing here: Bet he pissed off a grunt, and the grunt "fragged" him, metaphorically speaking. Jay
Link Posted: 6/13/2003 10:35:07 AM EDT
Originally Posted By AZCOP:
Originally Posted By markm: I wonder how they even found out!
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Guessing here: Bet he pissed off a grunt, and the grunt "fragged" him, metaphorically speaking. Jay
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I suspect you're right. There seems to be more to this story than what we're hearing...
Link Posted: 6/13/2003 3:11:01 PM EDT
Originally Posted By AZCOP:
Originally Posted By markm: I wonder how they even found out!
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Guessing here: Bet he pissed off a grunt, and the grunt "fragged" him, metaphorically speaking. Jay
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Maybe someone looking to open up a career path early by "retiring" him ahead of schedule.
Link Posted: 6/13/2003 4:58:29 PM EDT
It's nice to see one of them foul smelling, Oakley Blade wearing bastards get the pinch for once!
Link Posted: 6/13/2003 5:05:55 PM EDT
I only know what I read in the paper. If I hear from any guys that know him or read anything new I'll post it. But it just don't make sense. From what I've seen, BATFE would never send a case to the Federal Prosecutor with a case like this, and the prosecuter would never take it. I think the lawyer is right, he'll get off. But his days on the job are numbered no doubt.
Link Posted: 6/13/2003 7:21:34 PM EDT
What about this scenario? A father buys a gun to give to his son for birthday or christmas. Isn't that a violation as well? It's being given to another person. Whats the opinion here? And get this.... When the brady law first took effect, I was an officer in a small city and was assigned to do the background checks for all firearms approvals. I had nine applications that were denied due to the applicants being convicted felons. I sent the information to the ATF as per the instructions given to me. The ATF told me thanks, but there wasn't anything they could do. They told me that the statements on the form had been found to be a violation of 5th amendment rights (self incrimination)and couldn't be used againts the applicants for making a false statement.
Link Posted: 6/16/2003 2:49:31 PM EDT
He broke the law. He is getting prosecuted. what's the problem? (However I think there is more than meets the eye in what we are being told. That doesn't make sense in several ways. He is helping the guy select the gun, that's OK, the other guy doesn't have time to fill out the forms??? What's that about? Was he he trying to get the gun at LEO prices and avoid tax or? was the guy not really eligible? what's with the 50/50? Sure looks like falsifying an official document/perjury. Since BATFE has to maintain a reasonable relationship with the locals, one would think a minor paperwork glitch could be taken care of (Blue Line Brotherhood etc) so something is extra screwy here?)
Link Posted: 6/16/2003 3:13:39 PM EDT
Originally Posted By markm: I wonder how they even found out!
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ditto
Link Posted: 6/16/2003 3:24:46 PM EDT
More questions: Was this his girlfriend? Did he buy a handgun with LEO hicaps?
Link Posted: 6/16/2003 3:53:51 PM EDT
Originally Posted By innocent_bystander: More questions: Was this his girlfriend? Did he buy a handgun with LEO hicaps?
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I don't know if a Lt. could write his own letterhead for high caps here. Chief Miranda won't give letterhead for off duty weapons in LEO configuration. He is a Democratic politition, and hates guns.
Link Posted: 6/16/2003 4:04:25 PM EDT
Originally Posted By bigern: That's the rule. I hate those stupid rules but jeez we all know they are there and that the Feds live for and love to stick it to anyone who makes a little mistake like this. What was this guy thinking?
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That he was above the law? Sure it's a stupid law, but if he wasn't a cop, it wouldn't even have made the papers.
Link Posted: 6/16/2003 6:34:31 PM EDT
Originally Posted By JohnTheTexican:
Originally Posted By bigern: That's the rule. I hate those stupid rules but jeez we all know they are there and that the Feds live for and love to stick it to anyone who makes a little mistake like this. What was this guy thinking?
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That he was above the law? Sure it's a stupid law, but if he wasn't a cop, it wouldn't even have made the papers.
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Maybe he just thought nobody would notice, nor care if they did?
Link Posted: 6/17/2003 7:54:22 AM EDT
I keep seeing "he broke the law he broke the law" he broke no law. It's illegal to purchase a gun for someone who can not legaly own one. If this cop is being charged than why the hell was sarah brady(sp...ah who cares) not arrested and charged when she bought a rifle for her son. Thats the exact same thing that this cop did. As for actual purcheser he was, he went to the store and filled out the form and put the money on the counter correct? than HE bought the gun and GAVE it to his buddy or look at it like this they both paid half the cost so since both can legaly own, posess a firearm they have joint custady of the gun thats all. BS charges against a person based on BS violations because of a BS "interpretation" of a BS law. I don't cre if the guys a LEO or not. He who puts the cash on the table is the purcheser no matter if the cost came 100% out of their pocket or 50% out of their pocket.
Link Posted: 6/17/2003 8:59:42 AM EDT
Link Posted: 6/17/2003 9:34:27 AM EDT
This smells like a setup.......or somebody squealed on the guy. I guess the moral of the story is let your buddy buy his own gun.
Link Posted: 6/17/2003 9:56:47 AM EDT
[Last Edit: 6/17/2003 9:58:03 AM EDT by SGB]
Link Posted: 6/17/2003 10:31:16 AM EDT
[Last Edit: 6/17/2003 10:47:03 AM EDT by Garand_Shooter]
Link Posted: 6/17/2003 12:27:46 PM EDT
[Last Edit: 6/17/2003 12:36:37 PM EDT by JohnTheTexican]
Originally Posted By SGB:
When the brady law first took effect, I was an officer in a small city and was assigned to do the background checks for all firearms approvals. I had nine applications that were denied due to the applicants being convicted felons. I sent the information to the ATF as per the instructions given to me. The ATF told me thanks, but there wasn't anything they could do.[red]They told me that the [size=3][u]statements on the form had been found to be a violation of 5th amendment rights[/size=3][/u] (self incrimination)and couldn't be used againts the applicants for making a false statement.[/red]
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Hmmmmmmmmmmmmmmmm.........
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If the ATF said that, it was only because that agent didn't want to spend their time on those cases. The Fifth Amendment only gives you the right to remain silent. It doesn't give you the right to make a false statement. Or so says the Supreme Court, anyway. Edited to add: “Our legal system system provides methods for challenging the government's right to ask questions -- lying is not one of them. A citizen may decline to answer the question, or answer it honestly, but he cannot with impunity knowingly and willfully answer with a falsehood.” Lachance v. Erickson, 522 U.S. 262 (1998)
Link Posted: 6/17/2003 12:33:26 PM EDT
Originally Posted By Motor_City_Tactical: Gee, it sounds like the Lt. did something wrong and got caught. Too bad. I wonder if you guys would be this upset if he was a civilian?
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I'm pretty sure you would be jumping up and down if this happened to a "civilian".
Link Posted: 6/17/2003 12:35:37 PM EDT
[PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 99-13906 ________________________ D. C. Docket No. 98-00556-CR-1-JTC-1 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus SAFIALLAH MUHAMMAD NELSON, a.k.a. "Mo", Defendant-Appellant. ________________________ Appeal from the United States District Court for the Northern District of Georgia _________________________ (August 10, 2000) Before TJOFLAT and HULL, Circuit Judges, and PROPST(*), District Judge. HULL, Circuit Judge: Safiallah Muhammad Nelson appeals his conviction for one count of conspiracy to make false statements with respect to information required by law to be kept in the records of federally licensed firearms dealers, in violation of 18 U.S.C. §§ 371 and 924(a)(1)(A). After review, we affirm. I. BACKGROUND On January 19, 1999, the grand jury indicted Nelson and his twin brother Khalil Abdullah Nelson ("Khalil") on nine counts of violating 18 U.S.C. § 924(a)(1)(A) by aiding and abetting in the making of false statements to federally licensed gun dealers with respect to information about firearms transferees, which dealers are required to keep in their records. In addition, the indictment charged Nelson and Khalil with one count of conspiracy to make false statements with respect to this information, in violation of 18 U.S.C. §§ 371 and 924(a)(1)(A). The indictment alleges that from at least July 1998 through November 1998, Nelson, who was not a Georgia resident, worked with Khalil to recruit five Georgia residents to purchase at least thirty firearms on their behalf. According to the indictment, these transactions were "straw purchases." Nelson and Khalil allegedly furnished the money to purchase the firearms and also paid money and controlled substances to the individuals they recruited. When purchasing these firearms, the recruited individuals would fill out Bureau of Alcohol, Tobacco and Firearms ("ATF") Form 4473, and each would falsely state on that form that he or she was the "actual buyer" of the firearms at issue.(1) After the purchase, either Nelson or Khalil would take possession of the firearms, which were readily concealable handguns, including 9 millimeter Lorcins, .45 caliber Hipoints, and .380 caliber Bryco/Jennings. Nelson filed a motion to dismiss the indictment, arguing that the "straw purchase" theory of liability relied on by the Government in prosecuting his case was a usurpation of legislative authority by the ATF, was unconstitutionally vague, and violated the Administrative Procedure Act ("APA"), 5 U.S.C. § 552(a). On April 12, 1999, the magistrate judge recommended that Nelson's motion be denied. Nelson filed timely objections, which the district court overruled.(2) On May 10, 1999, Nelson entered into a negotiated plea agreement with the Government. Pursuant to this agreement, Nelson pled guilty to the one conspiracy count against him, and the Government dismissed the nine remaining charges against Nelson and all charges against Khalil. Nelson reserved the right to file a direct appeal with respect to the court's denial of his motion to dismiss the indictment. At the sentencing hearing held on August 31, 1999, the district court sentenced Nelson to 37 months' imprisonment. Nelson then appealed.
Link Posted: 6/17/2003 12:36:16 PM EDT
II. DISCUSSION Nelson challenges his conviction under 18 U.S.C. § 924(a)(1)(A), based on his involvement in "straw purchases" of firearms.(3) In these "straw purchases," the individuals Nelson and Khalil hired to purchase firearms represented themselves to be the actual buyers of those firearms and filled out ATF Form 4473 accordingly, even though those individuals were merely agents for Nelson and Khalil. Section 924(a)(1)(A) prohibits individuals from making false statements or representations with respect to the information federally licensed firearms dealers are required to keep in their records, as follows: whoever-- (A) knowingly makes any false statement or representation with respect to the information required by this chapter to be kept in the records of a person licensed under this chapter . . . . . . . shall be fined under this title, imprisoned not more than five years, or both. 18 U.S.C. § 924(a)(1)(A). The question presented in this case is whether the identity of the actual buyer of a firearm is the type of "information" referred to in § 924(a)(1)(A). After review, we conclude that the actual buyer's identity does constitute "information required by this chapter to be kept in the records of a person licensed under this chapter." Several provisions in Chapter 44 of Title 18 of the United States Code, which is the "chapter" referred to in § 924(a)(1)(A), require licensed firearms dealers to keep records containing information about the identity of individuals who buy firearms. These provisions include 18 U.S.C. §§ 923(g), 922(b)(5), and 922(s)(3). Section 923(g) sets forth the general requirement that "[e]ach . . . licensed dealer shall maintain . . . records of . . . sale[] or other disposition of firearms at his place of business." 18 U.S.C. § 923(g)(1)(A). Section 922(b)(5) then makes clear that these records must contain, at a minimum, "the name, age, and place of residence" of any individual who purchases a firearm from a licensed dealer.(4) In addition, prior to selling a handgun to an individual "transferee," a licensed dealer must, under section 922(s)(3), obtain a statement from that transferee which contains "the name, address, and date of birth appearing on a valid identification document . . . of the transferee and a description of the identification used." 18 U.S.C. § 922(s)(3). Further, the dealer must verify the transferee's identity by examining the identification document described in the transferee's statement. Thus, licensed firearms dealers are required to keep information about the identity of firearms buyers in their records. As a result, false statements or representations relating to this information are prohibited under § 924(a)(1)(A). Additionally, the information required under § 922(b)(5) and § 922(s)(3) is information about the identity of the actual buyer, who supplies the money and intends to possess the firearm, as opposed to that individual's "straw man" or agent. This information about the actual buyer's identity is necessary in order for the firearms dealer to ascertain whether that potential purchaser is in fact eligible to purchase a firearm under Chapter 44. See 18 U.S.C. § 922(b)(1)-(3) (making it unlawful for licensed dealers to sell firearms to individuals who are ineligible to purchase them as a result of restrictions imposed under state law or due to the individual's age or out-of-state residence). If an ineligible buyer could simply use a "straw man" or agent to obtain a firearm from a licensed dealer, the statutory scheme would be too easily defeated. See United States v. Lawrence, 680 F.2d 1126, 1128 (6th Cir. 1982) (affirming a "straw purchase" conviction under § 922(a)(6) and stating that "[i]f sales such as this one were insulated from the law's registration provisions, the effect would be tantamount to a repeal of those provisions"); United States v. White, 451 F.2d 696, 699-700 (5th Cir. 1971)(5) (affirming a "straw purchase" conviction under § 922(a)(6), reasoning, "[w]ere the appellant's interpretation of the statute accepted, an individual could falsify the form and escape liability through an intermediary. . . . Surely, Congress could not have intended to allow such easy evasion of a comprehensive scheme").(6) Consequently, we conclude that Congress intended § 924(a)(1)(A) to apply in the "straw purchase" situation presented here. The individuals Nelson and Khalil hired to purchase firearms represented themselves to be the actual buyers of those firearms and filled out ATF Form 4473 accordingly. However, these representations were false because Nelson and Khalil supplied the money for these purchases, intended to possess the firearms, and thus actually bought these firearms. Nelson asserts, however, that his conviction must be reversed because the ATF rather than Congress developed the "straw purchase" theory of liability and, in doing so, the ATF usurped congressional power to define what conduct constitutes a crime. Nelson also contends that his prosecution under this theory was prohibited under the Due Process Clause of the Fifth Amendment because the theory is unconstitutionally vague. Finally, Nelson claims that the ATF has failed to publish any regulations about the "straw purchase" theory, in violation of the APA, 5 U.S.C. § 552(a)(1). All of Nelson's arguments are without merit. First, the basis for his conviction is § 924(a)(1)(A), which, as already indicated, clearly contemplates liability for the type of "straw purchases" at issue here. In other words, Nelson's offense was created and defined by Congress, and not by an impermissible delegation of legislative authority to the ATF. Second, we conclude that Nelson's conviction under the "straw purchase" theory does not violate due process because this statute provides sufficient notice and does not encourage arbitrary and discriminatory enforcement. Finally, because Congress established this "straw purchase" liability with sufficient definiteness, Nelson was clearly convicted of violating a statute. He was not convicted of violating merely an unpublished agency interpretation of that statute. Therefore, Nelson's APA claim is without merit.
Link Posted: 6/17/2003 12:37:29 PM EDT
III. CONCLUSION For the foregoing reasons, we affirm Nelson's conviction and sentence. AFFIRMED. -------------------------------------------------------------------------------- FOOTNOTES -------------------------------------------------------------------------------- *. Honorable Robert B. Propst, District Judge for the Northern District of Alabama, sitting by designation. -------------------------------------------------------------------------------- 1. Question 8(a) on Form 4473 requires an individual to certify that he is the "actual buyer" of the firearm or firearms listed on the form, as follows: Are you the actual buyer of the firearm indicated below? If you answer no to this question the dealer cannot transfer the firearm to you. (See Important Notice 1.). Important Notice 1 is on the second page of the form and provides: WARNING - The Federal firearms laws require that the individual filling out this form must be buying the firearm for himself or herself or as a gift. Any individual who is not buying the firearm for himself or herself or as a gift, but who completes this form, violates the law. Example: Mr. Smith asks Mr. Jones to purchase a firearm for Mr. Smith. Mr. Smith gives Mr. Jones the money for the firearm. If Mr. Jones fills out the form, he will violate the law. However, if Mr. Jones buys a firearm with his own money to give to Mr. Smith as a birthday present, Mr. Jones may lawfully complete this form. A licensee who knowingly delivers a firearm to an individual who is not buying the firearm for himself or herself or as a gift violates the law by maintaining a false ATF F[orm] 4473. -------------------------------------------------------------------------------- 2. The district court based its decision to deny Nelson's motion on its order in United States v. David, No. 97-00487-1-CR-1-JTC (N.D. Ga. May 26, 1998), which this Court subsequently affirmed, No. 98-9262 (11th Cir. Dec. 10, 1999). In David, the defendant raised and the district court rejected the same three arguments that Nelson makes in challenging his conviction under the "straw purchase" theory of liability. Id. -------------------------------------------------------------------------------- 3. The parties agree that this case involves statutory interpretation and other questions of law, which are reviewed de novo. See United States v. Lowery, 166 F.3d 1119, 1122 (11th Cir.), cert. denied, 120 S. Ct. 212 (1999). -------------------------------------------------------------------------------- 4. Section 922(b)(5) provides, in relevant part: (b) It shall be unlawful for any licensed importer, licensed manufacturer, licensed dealer, or licensed collector to sell or deliver-- . . . . (5) any firearm . . . to any person unless the licensee notes in his records, required to be kept pursuant to section 923 of this chapter, the name, age, and place of residence of such person if the person is an individual . . . . 18 U.S.C. § 922(b)(5). -------------------------------------------------------------------------------- 5. This Court adopted as binding precedent all Fifth Circuit decisions prior to October 1, 1981. See Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc). -------------------------------------------------------------------------------- 6. Although Lawrence and White were decided under 18 U.S.C. § 922(a)(6) rather than § 924(a)(1)(A), their reasoning provides guidance here because of the similarities between the two provisions. Section 922(a)(6) makes it unlawful "for any person in connection with the acquisition . . . of any firearm . . . from a licensed dealer . . . knowingly to make any false or fictitious oral or written statement or to furnish or exhibit any false, fictitious, or misrepresented identification, intended or likely to deceive" the dealer "with respect to any fact material to the lawfulness of the sale . . . of such firearm . . . under the provisions of this chapter." 18 U.S.C. § 922(a)(6). Thus, § 922(a)(6) and § 924(a)(1)(A) both prohibit the making of false statements or representations to firearms dealers relating to the sale of a firearm. The two provisions do differ in the sense that § 924(a)(1)(A) does not require that the false statement or representation be "with respect to any fact material to the lawfulness of the sale," as § 922(a)(6) requires. See United States v. Hawkins, 794 F.2d 589, 590-91 (11th Cir. 1986) (holding that a defendant's convictions under both § 922(a)(6) and § 924(a)(1)(A) for filling out a single form does not violate double jeopardy). In addition, the two provisions carry different maximum penalties; the statutory maximum sentence for a violation of § 924(a)(1)(A) is five years, as opposed to ten years for a violation of § 922(a)(6). See 18 U.S.C. § 924(a)(1)-(a)(2). However, these differences do not alter the analysis here. --------------------------------------------------------------------------------
Link Posted: 6/17/2003 11:25:29 PM EDT
One way to get rid of stupid laws: JURY NULLIFICATION[thinking] Nuff said.
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