Lawyers for Matthew Hoover are arguing that the state charged him with the wrong crime in the Auto Key Card case. They also argued that if the conviction stands, any AR-15 could be considered a machinegun.
Matthew Hoover and Kristopher Justin Ervin were convicted and sentenced last year for selling a metal card with a picture inspired by a lightning link etched on it. Mr. Ervin ran the business producing the cards, and Mr. Hoover advertised the novelty gift on his popular YouTube Channel, CRS Firearms.
A lightning link is a device that inserts into a lower receiver of an AR-15, causing it to fire automatically with a single function of the trigger. According to the National Firearms Act of 1934 (NFA), any machinegun conversion device (MCD) itself is a machinegun. The Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE) claims that the lightning link on the metal card is a template and itself is an MCD. Something that Hoover and Ervin reject.
Firearms Enforcement Officer (FEO) Cody Toy was the one for the ATF that examined the item. He admitted that he could not get the card to function as a lightning link when he cut out the design on the lines. What FEO Toy testified to is that to get the gun that he used to fire more than one shot with a single function of the trigger, he had to cause the firearm to malfunction to get hammer follow.
Mr. Hoover’s attorney, Matthew Larosiere, claims this is not automatic fire. In the new briefing, he argues that hammer follow is a malfunction that can happen for numerous reasons. His filing explains that hammer follow can occur if the disconnector of an AR15 is removed or is simply worn down. In the past, the ATF tested a firearm with a sliver of metal stuck in the fire control group (FCG) that caused a hammer follow malfunction.
Mr. Larosiere claims that the ATF has issued conflicting guidance on AR15-style rifles. He argues that if a hammer follow malfunction makes a machinegun, then all AR15 firearms might qualify as machineguns. A stance that the ATF has never taken.
“The ATF has been giving conflicting guidance on AR15s since the first time they saw one,” Larosiere told AmmoLand News. “It is fundamentally wrong for them to test new and extreme theories about what constitutes a machinegun in a criminal prosecution.”
The statute of the law binds the ATF. Although the ATF has tried to expand laws through the rule-making process and Chevron deference, it has largely been unsuccessful. In the landmark Supreme Court case Cargill, SCOTUS ruled that an ATF rule must follow the letter of the law, and the Bureau cannot expand a law. Also, SCOTUS knocked down Chevron deference in the Loper Bright Enterprises case.
Hoover’s lawyers also argued that he should not have been charged with violating 26 U.S.C.A. § 5861(e). That is the NFA. The NFA made it illegal to own a machinegun unless a person registers it with the ATF and pays a $200 fee for a tax stamp. His legal team argues that the government made it impossible for Hoover to comply with 26 U.S.C.A. § 5861(e) because the government closed the machinegun registry for private citizens for guns made after May 1986. The government wouldn’t accept the $200 or issue a tax stamp.
Mr. Larosiere highlights that the United States Attorneys’ Manual even says that machineguns should be prosecuted under 18 U.S.C.A. § 922(o), which made it unlawful to transfer or possess a machinegun made after May 19, 1986. That law is known as the Hughes Amendment, a part of the Firearms Owners Protection Act (FOPA).
The United States Attorneys’ Manual Reads:
Section 922(o) of Title 18 makes it unlawful to transfer or possess a machinegun made after May 19, 1986. In addition, under the NFA, it is unlawful to manufacture or possess a machinegun without first registering it with the Secretary of the Treasury and paying applicable taxes. 26 U.S.C.A. §§ 5822, 5861. As a result of the enactment of 18 U.S.C.A. § 922(o), the Secretary of the Treasury no longer will register or accept any tax payments to make or transfer a machinegun made after May 19, 1986. Accordingly, because it is impossible to comply with the registration and taxation provisions in the NFA, prosecutors should charge the unlawful possession or transfer of a machinegun made after May 19, 1986 under § 922(o).
It is unclear why Hoover and Ervin were charged for violating 26 U.S.C.A § 5861(e) instead of 18 U.S.C.A. § 922(o). Other people have been charged with violating 26 U.S.C.A § 5861(e), but they are also charged with 18 U.S.C.A. § 922(o). The choice to leave out the second charge is perplexing.
The government will have a chance to respond to the briefing. After that, the Eleventh Circuit Court of Appeals can decide to hear oral arguments in the appeal or issue a decision. There isn’t a timeline for either scenario.
About John Crump
Mr. Crump is an NRA instructor and a constitutional activist. John has written about firearms, interviewed people from all walks of life, and on the Constitution. John lives in Northern Virginia with his wife and sons, follow him on X at @crumpyss, or at www.crumpy.com.
Boy these guys got railroaded by a very powerfully corrupt organization.. J. Edgar Hoover (no relation to Matt) would blush at the thought.
That is no damn machine gun and a girl doesn’t have a penis… we all know that… except democrats.
Eh…I was in this dive bar in Soho one night about 50 years ago, and there was this big, dark skinned chick; I asked her her name and in a dark brown voice…
atf needs to be disbanded and criminal ex agents given choice to give up citizenship and leave or be tried for treason and possibly executed
Agreed.
At very least fired and stripped of pension and benefits.
If a flat piece of metal is considered a machine gun a block of aluminum can be considered one if I have a CNC machine and a program.
dont have to have a cnc a mill and drill and a dremel
Ervin & Hoover got royally screwed by the Satan driven organization called the ATF & the light in the loafers DOJ Meritless Garbage!!! There’s no amount of money can offset their time being incarcerated with fabricated evidence!!! The action taken against these two men is disgusting and the soulless “people” and I use the term people very loosely in describing their abhorrent behavior because they should be thrown under the jail but however we all know that these jokers will NOT serve a day of time for their flat out lying welp, at least on this earth.
Soulless people? More like PSYCHOPAHTIC CONTROL FREAK PARASITES.
Yep, I agree with you and that requires having no soul
atf should all be jailed for criminal actions…..or hung….cheeper
BATFE has a long history of creating evidence in the lab for the purpose of getting a conviction.
criminals in gooberment ,fbi has done the same make it up as they go shop for a progressive “judge” that will disallow defense constitution is an impediment to be gotten around by hook or crook to these ?people?
The ATF used (added) a zip tie around the trigger, i.e. a type of spring, to make the FRT supposedly fire full auto. Not exactly a practical application outside of a controlled environment.
Wild bill-
didn’t they do that against Randy Weaver and then the Branch Davidians?
Sounds like the same type of F job that the couple got that was protecting their home with a prop gun that took some major work to make function. They were under attack and the people doing it broke down the gate to gain entry to their estate. It’s time we start protesting in the streets in front of the court houses that make these ruling based on bullshit that didn’t work, a joke and altering firearms to make them into what they want. This is almost as bad as the poor people with J-6. It’s all a bunch of… Read more »
I saw and interview today … I don’t know if Ammoland allows links.. but I’ll put this up… did the Government have bad actors that instigated the whole thing.. ? yep https://youtu.be/aItGIPk0eKA?si=YVowe6FgBmhFTzUa
Thank you.
I don’t recall, I don’t recall, I can’t share that, oh it’s confidential I can’t reveal that, right now it’s under investigation and I am not sure what I can and can’t reveal because it could interfere with the investigation. Oh we are definitely holding that information back until after the election because it would be detrimental to getting a democrat elected to the presidency but we will release the information before the inauguration. I am sure glad that he is forthwith with the information that has been required for almost 4 years now. We always know we can trust… Read more »
I had friends that were invited to go ,and asked me , I told them not to go because I was told by people I had worked with there was something strange going on in fbi …like some kind of op but they were not in the loop. the people that were invited all have criminal cases against state judges in Ohio and Indiana ,one is criminal action by judge (signing a lawyers name to a court document after lawyer died) the notary died from a hit and run,but not before a death bed confession of signing falsified documents, police… Read more »
Lucky you have friends in the right places. Unfortunately it looks like the government has decided that ANYONE that was there at all is guilty so you managed to steer clear of them haunting you.
I know the corruption runs deep. Just look at the news today about the Mayor in New Dork. A cop, on the take. Say it ain’t so joe!!!
I bet if he wouldn’t have pissed off the left by saying illegals need to stop coming that he would still be in there.
and he may not have done anything , he would be smart to have shall issue pushed in the city now while he can ,would stop a lot of the crimes
Someone correct me if I’m wrong, but wasn’t that government trumps government? He was supposedly POTUS at the time J6 happened.
These poor guys got fucked big time.
Inner city gang bangers shoot and kill people and don’t get arrested.
If they ever do get arrested, the Soros DA will not press any charges against them because they are ” poor and a minority”.
It shouldn’t be unexpected for the ATF to declare people possessing both a shotgun and a hacksaw as being in constructive possession of a saw-off shotgun.
a chop saw must be a big time criminal with a metal blade
To this day I wonder if the defense attorneys demanded to see the evidence and then passed around to the jury both an uncut auto-key-card along with what the ATF finally created from one to work full auto. Did the latter match the outlines etched on the former? If not, it should be case closed; the ATF made something different and merely used the card as source a material otherwise readily available from a wide variety of sellers. If they did, then demand the two items be sealed and demonstrated to work on multiple brands of semi-auto AR’s, each to… Read more »
the cards were not to scale so to make one you would need drawings and dimensions, all available on line, so this was bs of the worst kind, it was more about keeping the idea away from people about how easy it is to make 2″ packing strap tin snips,or dremel(better) flat surface hammer file
You know that. I know that. But did the jury (or judge if it was a bench trial) physically see that? Most lawyers can’t grasp the concept and would not think to show that evidence up close. Few can even change a light bulb on their own or see the difference between a piston from from a large truck vs. a Honda Civic and understand the significance let alone that even a small difference in dimensions will keep a part from working. Maybe I’ll use the design on t-shirt for the next NRAAM or GOALS.
100% cotton then they can charge you with having bomb making material
LOL! Never anything but. I was having a supply chain conversation yesterday and wondered out loud if paper/cardboard could be used in the production of nitrocellulose or if cotton is required. I’m sure any source of cellulose can be made to work; a consideration since our supply from China has been cut off.
the best 2 are cotton and hemp
I’ve said this argument from the get-go. ANY AR has the potential to be a “machine gun” by simply removing the disconnector. That includes any AR owned by an ATF agent, so they should all be charged with owning a machine gun.
reason that does not work is hammer would follow the bolt would not impact the firing pin , with a redesign of firing pin gun could be made to slamfire like an m1 grand or m14 does sometimes but the design needs a catch to fire reliably
print chemical compound for nitrocellulose on the back
Sometimes works if primers are soft enough. For evidence ATF tried many types of ammo – found only one which sometimes would fire repeatedly through hammer follow. Absolutely was not reliably able to fire full auto – or to sustain it when it did go off. Legally they only had to get two rounds to go off from single trigger pull — but this is such a blatant persecution as to make entire legal system a collection of kangaroo courts.
I do not remember which it was greek or turkish 762 nato had primers so soft you could have them go off if you dropped ammo can and a tip hit a primer
NOTE TO U.S.CITIZENS: The ATF is NOT your friend.
Prosecuting a malfunctioning rifle that doubles is a grossly unethical misuse of the law and the criminal justice system to deptive the accused of his civil rights. Even worse than prosecuting a keychain as a lightning link.
Hoover and Ervin are lucky someone didn’t break into their homes and plant a pound of coke or fentanyl. So just having a credit card size metal with lines on it makes it a machine gun? Reminds me of back in the 1990’s, the gun banning groups said that any semi auto rifles could be made into a full auto machine gun by just using a paperclip or a hairpin. Huh?? Gunsmith told me there is a lot of proper machining to do. You can’t use a paperclip or hairpin to convert any semi auto firearms into full auto. Besides,… Read more »
Improper use of the Statute id say Malfeasance since the Agent charged the crime but didn’t have the device operating in accordance with the crime. People should start sueing these agents personally for operating outside of the law.
they have done this more than once made a “machine gun” with a zip tie and rubber band
I’d only say “improper” in the sense that no crime was committed. First amendment allows printing a picture on a novelty as a political statement.
they have ignored bill of rights from before ink was dry
the oh wait but clause
Fatf has standards? LOL!!!
By the time all the appeals are completed and ruled on the two will likely be out of prison with no way to get back the freedom they were screwed out of. A monetary award couldn’t possibly compensate for the time lost.
If you are suggesting that they will complete their sentences – you are sadly mistaken. Each of them received multi-century sentences. Only way they will complete their sentences is to die. Not exactly a positive outcome. Thus it remains important to support ongoing legal efforts to rectify this travesty of justice.
they would have been better off to have been shooting up neighborhoods in chitcago, no bail released on their own