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Case Analysis Legal

Matthew Hoover’s Motion for Acquittal

Byawa

Jun 18, 2023

B.L.U.F.Matthew Hoover and Kristopher Ervin thumbed their noses at the ATF, daring the ATF to do something. The ATF did, they arrested both of them for multiple counts of conspiracy to sell a “combination of parts” that would convert a gun into a machine gun. Both were found Guilty. They have not been sentenced yet. Having been found guilty, both are asking for the court to acquit them.

Hard cases make good law. There is so much tied up in this case that it is hard to dissect. This might be such a case.

History

Matthew Hoover was a YouTuber who created gun content. I had watched some of his videos, but his content wasn’t of significant interest to me. His content would be recommended to me from time to time. At some point, he started advertising the “Auto Key Card” and it was obvious that he was selling this card.

The “Auto Key Card” was a dimensionally correct etching on a stainless-steel card of a “lighting link.” A lighting link can convert an AR-15 style platform from semi-automatic to full-automatic, i.e. a machine gun.

But what does it do? It is both complicated and simple at the same time.


On the AR-15 platform, when you have charged the rifle, you have cocked the internal hammer. The hammer has a small notch in it called a sear.

When you press the trigger, the arm in front of the trigger rotates down. As it does, it clears the sear on the hammer. The hammer then moves forward to hit the firing pin and fire the weapon.

The bullet flies down the barrel, as it passes the gas port some of the gas is diverted into the gas tube. That gas flows back towards the receiver, where it acts on the bolt carrier to shove the bolt carrier towards the rear of the gun. The bolt carrier pulls the bolt out of the chamber. It also pushes the hammer back down.

This happens so fast that you do not have time to release the trigger. As the bolt carrier is shoved forward by the recoil spring, the hammer rides down the back of the bolt carrier and may or may not drive the firing pin into the next round, firing git.

The disconnector interrupts this process. The hook at the front of the disconnector catches the hook on the back inside the hammer and keeps the hammer from following the bolt forward.

When the trigger is released, the nose comes up and is ready to catch the hammer. As the trigger is released more, the disconnector is pulled back out of the hook on the hammer and the hammer starts forward, only to be stopped as the sear catches on the nose of the trigger.

We are now ready for the next trigger press.

In a full auto AR-15 platform, we add one more piece and modify some of the other pieces. The first piece of interest is the selector switch. This will push down on the back of the disconnector, so its hook will never catch the hammer hook. If this was all that was happening, the hammer would ride the bolt carrier back down and the firearm might slam fire. But this is not controlled and might not actually happen.

What we want to have happen is for the hammer to stay back until the bolt is in battery and then for the hammer to fall, picking up speed, until it strikes the back of the firing pin. This is where the auto sear comes into play.

When the bolt carrier to the rear, the hammer is down and the auto sear is rotated such that it catches the hook on the back of the hammer. This holds the hammer down as the bolt carrier moves forward, driving the bolt into battery. As this happens, the back of the bolt carrier catches the rear of the auto sear and rotates it. This releases the hammer, allowing the gun to fire a second time.

The thing that makes an AR-15 receiver a “machine gun” is the little hole for the auto sear pivot pin. Without that hole and the auto sear, it is not a machine gun.

Before 1986, people were manufacturing “drop in auto sear” This was a block of milled steel with the auto sear and pivot pin integral to the unit. When put into a receiver with a correctly milled shelf for the auto sear and when the rest of the fire control group had the right type of disconnector, trigger, selector switch, and hammer, the drop in auto sear worked just like a normal auto sear.

If that little chuck of metal was properly serialized and registered before 1986, it is legally a machine gun. They sell for thousands of dollars.

A cheap version of the drop in auto sear was the “lighting link”. This was a much simpler device made from a couple of pieces of thin stamped metal. It performed the same function. Unfortunately, it wasn’t very reliable. They had to be carefully tuned to fit a particular receiver and even then, it couldn’t be trusted the same way a real M-16 and drop in auto-sears could.

Dimensional draws of the lighting link are available on the internet and in some old tyme books.

All of this brings us back to the Auto Key Card. The Auto Key Card is a dimensional drawing of a lighting link. The card is made from stainless-steel and is laser etched. That is all it is.

The Question

The actual question at court really was “Is the Auto Key Card a dimensional drawing or is it the actual parts?”

  1. COUNT ONE: CONSPIRACY TO TRANSFER UNREGISTERED MACHINEGUN CONVERSION DEVICES
  2. COUNTS TWO, THREE, FIVE, AND SEVEN: SUBSTANTIVE COUNTS
    1. The Defendant knowingly transferred, or aided and abetted the transfer of, a firearm, specifically a combination of parts designed and intended for use in converting a weapon to shoot automatically more than one shot, without manual reloading, by a single function of the trigger
    2. the firearm was not registered in the National Firearms Registration and Transfer Record; and
    3. the Defendant knew of the specific characteristics or features of the firearm that made it subject to registration under the National Firearms Registration and Transfer Record.
—United States v. Ervin, No. 3:21-cr-00022, slip op. at 4,5 (M.D. Fla.)

From this, it is clear that if the Auto Key Card was nothing but a drawing, then no parts were transferred. If no parts are transferred, then count one fails. If count one fails, all other counts fail as well.

The Arguments

The transcripts are not available for another couple of months. We don’t know exactly what the government argued, but from charging documents it is clear that the government considered the Auto Key Card to be machine gun conversion parts.

As pled in the indictment, if no parts were transferred, then there was no crime. The government proceeded under a theory that each Auto Key Card constituted a combination of parts designed and intended to convert a weapon into a machinegun. At trial, the government and its agents demonstrated that Defendant advertised a homogenous piece of steel called the Auto Key Card on his YouTube channel. But when it came time to prove up its case, the government’s physical evidence and testimony demonstrated that, as transferred (and at best) each Auto Key Card was a singular, homogenous piece of stainless steel into which a design was lightly etched i.e., Defendant advertised, and Mr. Ervin sold, a drawing that was on a piece of metal.
—id. at 5,6

Part of the evidence elicited from the machine shop that made the Auto Key Cards was that only a drawing was transferred to the shop, and when the shop wanted to make it easy to break into pieces, Mr Ervin stopped them. Mr. Ervin requested that the Drawing be copied onto single, homogenous pieces of stainless steel by way of a laser only to the extent that the image could not be wiped off of it.—id. at 6

In more colloquial terms, the state is claiming that a 1% lower is a full firearm.

One of the interesting parts of this case is that it isn’t a Second Amendment challenge. The defendants (good guys) aren’t arguing that they have a right to keep and bear these particular arms, they are arguing that these items are drawings, protected by the First Amendment.

Does it Work as a Lighting Link?

Well, no. A state witness testified that it took over an hour to cut out the parts. I believe it would be faster to mill a drop in auto-sear than to try and make a lighting link from this item.

In addition, it is unclear if the state was ever able to get one of these things to actually turn an AR-15 into a full auto machine gun.

The government’s theory bears emphasis: that each drawing on the piece of steel constituted a “part.” This reading is so inconsistent with the statute as charged that the government even attempted to invert the statute at closing arguments by arguing that the law proscribed something “designed and intended” to become a “combination of parts,” which is just manifestly not the case. Even more, the government never once provided evidence that the Auto Key Card was a combination of parts. It forcefully fought against all attempts to delineate what “parts” were “in” the Auto Key Card, instead simply waxing over the critical statutory distinction between a “part” and “combination of parts” and telling the jury, quite literally, not to “worry” about it.
—id. at 7
Machinegun The term ‘‘machinegun’’ means any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger. The term shall also include the frame or receiver of any such weapon, any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machinegun, and any combination of parts from which a machinegun can be assembled if such parts are in the possession or under the control of a person.
—Congress House of Representatives, Government, 26 U.S.C. 53 - MACHINE GUNS, DESTRUCTIVE DEVICES, AND CERTAIN OTHER FIREARMS, govinfo.gov § 5845(b), (last visited Jun. 18, 2023)

The ATF is being somewhat consistent here. As we discussed in their frame and receiver final rule, the ATF is claiming that a thing is a frame or receiver if it can be made into a frame or receiver. The law doesn’t say that. It says that it either is or is not a frame or receiver.

Here, the law is that if a part or combination of parts can be used to convert a firearm into a machine gun, then that part or those parts are a machine gun. Thus, a drop in auto-sear is a machine gun. The Auto Key Card is not a part that can convert a firearm into a machine gun. It requires labor to do that. The state then claims that the Auto Key Card really isn’t a “part”, it is, indeed, a “combination of parts”.

This is not what congress intended when they made the definition of a machine gun.

It gets worse.

Even if the government’s assertion that a drawing on a homogenous piece of steel equates to “parts”—an assertion that is patently absurd—such could only logically extend to the contours of the drawing. However, the government provided no evidence that an Auto Key Card, if cut along the lines, would convert a firearm to fire automatically. One of the government’s substantive act witnesses—who claimed to work at a tool and die shop— testified that when cut precisely to the lines, he could not get the resulting parts to function. On the other hand, ATF’s Mr. Toy sliced and diced multiple Auto Key Cards apart with a Dremel. He kept at it, and his testimony, and the government’s evidence, showed that only after cutting outside the Drawing by re-contouring a piece he described as a “flap” did he manufacture a combination of parts from a single piece of stainless steel into a “combination of parts” he re-designed to induce a malfunction in the weapon which resulted in its firing more than one shot. A malfunction, it bears emphasis, Mr. Toy testified that did not reflect how a “lightning link”—the type of machinegun conversion device the government asserted the Auto Key Card to be—would have functioned. Further, Mr. Toy testified that there would be no meaningful distinction in result were the design drawn with laser or marker. So, in fewer words: the government proved that each Auto Key Card was a homogenous piece of steel, proved that if that homogenous piece of steel was cut precisely to the lines, was not designed and intended to convert a weapon to fire automatically, and proved that the only way its own expert could induce a weapon to fire more than one shot using the Auto Key Card was to ignore the lines thereupon engraved to spend substantial time manufacturing a combination of parts which did not even function as the type of machinegun conversion device the government alleged it to be.
—Motion Judgment of Acquittal, No. 3:21-cr-00022, slip op. at 8,9

Yep, the state claims that this drawing on steel was a combination of parts that would convert an ar-15 into a machine gun, yet they were unable to do anything more than to get a malfunction that fired more than one shot. And that with a combination of parts designed and made by their expert.

We stress these points of statutory interpretation and settled law as essentially related to the insufficiency of the government’s evidence. Clearly, while there could have been a less provocative canvas to copy the Drawing onto, during closing arguments, the government asked the rhetorical question of where we draw the proverbial line while displaying the sliced-up remnants of an Auto Key Card as a table sculpture. And therein lies one of many problems with the government’s case: It is not for the jury to decide where the line is drawn—that is Congress’s role alone. The jury does not, and cannot serve as a legislative sub-assembly to define terms of law. The jury’s role is to decide if an otherwise clear and validly drawn line has been crossed. The essential lines here, which the government provided no evidence of are: was the subject article a combination of parts, did the Defendant know the article had features subjecting it to NFA requirements, and did Defendant know and intend to be part of an unlawful plan. Not only did the government fail to prove the essential elements, the government proved their absence.
—id. at 9,10

I like this argument. The state wants the jury to judge according to what the state wants the law to say, not what the law says.

The government, at trial, referred to the provocative and tongue-in-cheek nature of Defendant’s videos ad nauseum. That Defendant is a political provocateur with a more than a healthy distrust of the government is not evidence of criminal intent, nor is the fact that Defendant may be a conspiracy theorist evidence that he is a criminal conspirator.
—id. at 13

Yep, that describes Matt Hoover.

The Government pled that the Auto Key Cards are “cards … into which were etched the design for machinegun conversion devices known as lightning links[.]” It then, in a conclusory manner, declares that such cards are “machineguns as defined in 26 U.S.C. §[§] 5845(a) and 5845(b).” To embrace the Government’s position that a card with design on it is a “combination of parts” under § 5845(b) would be to ignore the plain and ordinary language of the word. The term “part” is undefined in the statute, but “[i]f possible, every word and every provision is to be given effect.” Geico Marine Ins. Co. v. Shackleford, 945 F.3d 1135, 1141 (11th Cir. 2019) (quoting Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts § 26, at 174 (2012); The ordinary meaning of a “part” in the context of machinery like a firearm is “a constituent member of a machine or other apparatus.” See Webster’s Dictionary, Part, https://www.merriam-
webster.com/dictionary/part#:~:text=1%20%3A%20one%20of%20the%20sections,My%20dog%20is%20part%20husky. (last retrieved on June 7, 2022); See also Johnson v. United States, 559 U.S. 133, 134 (2010) (where a word is undefined, the court must give it its ordinary meaning.). The statute does not refer to something that may one day become a part, nor does it refer to drawings or schematics for parts. It refers, quite simply, to something that is a combination of parts
—id. at 20,21

It looks like the author of the text needs my citation tool. That is a horrid citation from Merriam-Webster.

This covers a pretty important point, the meaning of the words in law are either defined or used as understood most commonly. There might be a definition of “part” that allows for the states’ interpretation, that is not the understood meaning.

The state is not allowed to create crimes by changing the definitions of words.

Conclusion

They conclude

In light of the insufficiency of evidence presented by the prosecution, the Defendant respectfully requests this Honorable Court to enter a judgment of acquittal on all charges. The evidence presented is legally insufficient to sustain a conviction, and no reasonable trier of fact could find the Defendant guilty beyond a reasonable doubt. Granting the motion is necessary to preserve Defendant’s constitutional rights to due process and a fair trial.
—id. at 22,23

I expect Hoover and Ervin to be acquitted. There was never any evidence that these Auto Key Cards were forbidden fruit. Likely, the court could have dismissed the case before trial, they didn’t.

Back in the mid ’80s, as Personal Computers were just making their way into the business place, the quote was “Nobody was ever fired for buying IBM.” This was to say that while there might be better options or cheaper options, the risk to the purchasing agent of buying IBM equipment was substantially less than buying from some other vendor.

Judges do not get in trouble when the Jury looks at the state and tells the state to go pound sand. It is the safe thing to do.

Having the court acquit defendants or to dismiss the charges before trial does entail risk. The judge could get in trouble for doing so, or they could take political heat for doing so.

In a case such as this, the judge lets the case go to trial, expecting the jury to find for the defendants. If that happens, the court is free from any risk. This time, the Jury decision went the wrong way. The court can now overturn that verdict and acquit the defendants. They will take heat for that, but that was not a foregone conclusion before the trial.

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By awa

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One thought on “Matthew Hoover’s Motion for Acquittal”

  1. So, a judge who, knowing men were innocent, allowed the state to wreck their lives anyway. Lovely.
    .
    One would hope the judge will do the right thing now, but, seriously, what are the odds?

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