Zastava Model PAP M92 PV, 7.62 x 39 mm Yugoslavian import model AK-47 clone from Century International Arms (CIA)
FEDERAL LAW GOES AFTER A CERTAIN TYPE OF DEFENDANT
Brownsville – Southmost, Texas – They call it “no man’s land,” and it’s walled off from the rest of America by an 18-foot picket fence made of square rusted iron tubing with spiked tops sunk into deep-seated concrete footers.
A middle-class residential neighborhood and an international airport backs up to the isolated farm land, much of which has been converted to “wildlife sanctuaries” along this narrow strip of river bottom where citrus, cotton, grain and produce fields once thrived.
When on August 29 the young man in camouflage fatigues stepped out of the brush that lines the litter-strewn trafficking corridor, a well-worn groove along this meandering stretch of the Rio Grande, the Border Patrol Agent thought he pointed the foreshortened assault rifle with the pistol grip at him.
He didn’t have to think about it. Reflexes got the better of him, and he slapped the trigger five times, spraying rounds all around the dim outline of John Frederick Foerster, where he stood in the gathering dusky gloom of a late summer evening. Also known as “Jesus” in the tough, masculine world of an irregular “armed citizen militia group patrolling the border of the United States and Mexico,” Foerster’s trademark of long, curly hair that flows over his collar and down his back earned him his ironic “call sign” over the course of three months spent in operations with the small unit that kept busy repelling smugglers of drugs, cash, and human beings as invited guests of Rusty Monsees, who owns a 21-acre tract of “no man’s land” in this semi-rural setting.
None of the bullets found their mark. The Bureau of Alcohol Tobacco Firearms and Explosives (BATFE) report does not name the agent who fired, but further notes that Supervisory Agent Danny Cantu confiscated five weapons in all from the three men detained for investigation by Cameron County Sheriff’s Officers, FBI and BATFE agents.
Cantu had earlier given his nominal permission for the irregular squad of “rangers” to string along with his men in order to drive a throng of illegal immigrants up the levee and into a waiting net of Border Patrolmen, the other side of an informal pincers formation. At the point when Jesus stepped out of the woods, he was listening to and watching a coyote as he whistled and gestured for his group of baliseros to move out and away from the area – and into the trap.
The agents took possession of a Zastava PAP M92 7.62 x 39 mm “pistol,” a Llama Government Model 1911 .45 caliber ACP pistol, a Winchester Model 70 .243 caliber bolt action sniper rifle, a Springfield Model XDS .45 caliber pistol, and a Centurion 39 Sporter, 7.62 x 39 mm rifle.
The law men detained the trio for five hours, arrested Jesus on suspicion of being a felon in unlawful possession of a firearm, and kept the guns, along with other gear including communications equipment and night vision goggles the group claims they surrendered at the time, and for which they say they got no receipt.
Further investigation showed that Jesus is “a person who has been previously convicted of felony; (sic) which prohibits him from possessing a firearm,” according to the author of the federal complaint and supporting affidavit, Anthony M. Rotunno, Special Agent of the ATF.
A Court sentenced Jesus on August 2, 1999 to 2 years confinement and 5 years of supervised release in the 138th Judicial District Court of Cameron County for the burglary of a building, granted a 5-year suspended sentence, and later sentenced him to serve 16 months imprisonment when the Court revoked his probation for violating the terms and conditions of probation.
At the time of his August 29 arrest, he admitted he had borrowed the Zastava pistol from Kevin (KC) Lyndel Massey, a 48-year-old electrical contractor from Quinlan, Texas, who is “a person who has been previously convicted of a felony, burglary of a habitation, and sentenced to 5 years confinement” by the 265th District Court at Dallas in 1988. He served penitentiary time when he Court revoked his probation later on an identical 1985 burglary conviction. Massey admitted he owned the Zastava, the .45 caliber Springfield Armory pistol, and the “Centurion” AK-47 clone he was carrying. In the words of Agent Rotunno, the previous conviction “prohibits him from possessing a firearm.”
Centurion Model 39 7.62 x 39mm, manufactured in the U.S. by Century International Arms (CIA)
A third party, Edward Varner, who was carrying the Model 70 Winchester, has not been charged with a crime.
The statute Rotunno cited in the complaint is Title 18 U.S. Code 922 (g)(1), which indeed prohibits possession of a firearm by one who has been convicted of a felony. It would be an understatement to say that though many offenders, nine out of ten of them men, are sentenced to long stretches in the federal correctional system each year, many more are released with a warning. It’s a murky area of the law. What’s clear are the type of offenders who wind up doing time for the offense.
According to U.S. District Court records, the jurisdictions which sentence the “highest proportion” of defendants out of their overall case load are located in the Northern District of North Carolina and Alabama, the Western District of Tennessee and Missouri, and the Southern District of Georgia. You got it. Men from the hills and hollers of Dixie do the time. Others seem to somehow slide on through.
Exactly 98.2 percent sentenced in 2012 were male, more than half of them black, 27 percent white, 18.8 percent Hispanic, and 2.9 percent were described as “other.” Their average age was 33 – old enough to know better, mature enough to be at the peak of their powers.
About 10 percent are sentenced to an average of 180 months under the provisions of the Armed Career Criminal Act. The remainder are sentenced solely under the provisions of the Subsection 922 (g)(1) to an average sentence of 46 months. All are found to have been in possession of a firearm “which has traveled in interstate or foreign commerce.”
On-line sales literature by Century International Arms (CIA) of Delray Beach, Florida, emphasizes that much of the outfit’s trade is concentrated in “LAW/EXPORT.”
“We buy and sell large quantities of police and security items including small arms and ammunition, bolt action, full and semi-automatic rifles, body armor, handguns of all types and calibers… These transactions can be cash purchases or barter for equipment you require. We are licensed…We sell to hunters, collectors, target shooters, law enforcement and military agencies in North America and export to companies that can provide an import permit and receive permission from department of state to export goods...”
We’re talking end user certification, envoys, embassies, red tape, and diplomatic folderol, here. There’s a reason why the Kalashnikov is often called the “tractor” of brush fire warfare. A competent workman with a vise and a ball peen hammer can fabricate a receiver from a die-stamped piece of mild sheet steel in a matter of minutes. From there, it’s a small matter of assembly from non-regulated parts kits, and you’ve got yourself an assault rifle.
Then there is the nature of the offense itself, a question for which the U.S. Supreme Court refused to grant the government certiorari in United States v. Ramos, 961 F.2d 1003, 1009 (1st Cir.), cert. denied, ___U.S.___, 113 S. Ct. 364 (1992).
According to a well-worn horn book in a restatement of the law, “In accordance with 18 U.S.C. § 921(a)(20), a conviction does not necessarily disqualify an individual from possessing firearms if the person convicted ‘has had civil rights restored.’ In § 922(g)(1) cases based upon a State felony conviction, courts have uniformly looked to the law of the State where the conviction was obtained to determine whether the defendant’s civil rights have been restored and whether such action has nullified the conviction’s incidental prohibition on firearms possession. With respect to Federal felony convictions, the Supreme Court declared in Beecham v. United States, 511 U.S. 368 (1994), that only Federal law can nullify the effect of the conviction through expungement, pardon, or restoration of civil rights. This is so, the Court ruled, even though there is no Federal procedure for restoring the civil rights of Federal felons.”
Contrasted with the statement elsewhere contained in the holding, the pattern emerges that certain folks automatically have their civil rights restored, while others do not.
- “The Criminal Division takes the position that where State law contains any provision purporting to restore civil rights — either upon application by the defendant or automatically upon the completion of a sentence — it should be given effect. It is not necessary that the State issue an individualized certificate reflecting the judgment of State officials regarding an individual defendant. The Ramos case should be limited to its unique facts and not extended in attempts to nullify the effect of other State schemes for civil rights restoration. A State restoration document that is absolute on its face should disqualify the affected State felon from prosecution under § 922(g)(1) unless the facts of the case strongly support a finding that the felon had actual notice of his/her continuing State firearms disability despite the terms of the restoration document.”
- Agents arrested Kevin Massey, the commanding officer of Rusty’s Rangers, on Monday, October 20 for an alleged violation that took place on August 29. Earlier in the month of October, the moon of the drying grass, a certain confrontation between Border Patrol Agents who told he and his men that their presence is “not helping” took place. One wonders if that was “actual notice of his/her continuing State firearms disability” at work – or not.
- No doubt, it’s a matter for the courts to decide, once the federal agents who speed up and down the gravel roads on top of the river levees, their headlights extinguished, throughout the long nights along the ox bows of the Rio Bravo, have made up their minds.
- No one has heard them stutter, so far.
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