Prosecution as Punishment: The Troubling Case of Albert Kwan

By Jeff Knox

People who "have nothing to hide" are often quite happy to answer any questions and consent to any intrusion a police officer might ask of them. They may even invite officers to "look around" if they want to. If you ask a good defense attorney how much you should cooperate with police, particularly when they are conducting an investigation in which you could possibly be a suspect, he will tell you "Not at all." Don't give them one word more than you must and never give them permission to search your car, look through your home, or examine any of your guns.

David Olofson took the "nothing to hide" approach. When the police confiscated one of his firearms from a friend he had loaned it to, Olofson freely chatted with police about how many guns he had, how many he has built, how he helps people to buy and assemble their own AR-platform rifles, and quite a bit more. David Olofson's loquacious ways probably helped to put him in prison for 30 months for illegally transferring an unregistered machine gun – that was actually just a malfunctioning semi-auto – and his case has set a very dangerous precedent which threatens all gun owners.

On the other side of the coin is Albert Kwan. A Seattle Class III firearms dealer and collector, Kwan followed the path of minimal cooperation. When agents asked him about a pair of Makarov barrels they thought he might have bought and asked to examine any Makarovs or Makarov parts he might have, Albert told them he had only purchased one barrel and that they should get a warrant if they wanted to examine it or anything else he owned. Kwan says he wasn't trying to hide anything; he just wanted to make sure his rights were respected and his privacy protected. Unfortunately, under-cooperating can be as problematic as over-cooperating.

Albert Kwan's lack of cooperation "raised red flags" with agents investigating a murder case – the murder of a federal prosecutor. Albert was never a suspect in the murder, but agents thought he might have sold the gun, or at least the barrel, that the murderer used and they wanted to know where that barrel had gone. When he refused to let agents look at his guns and take his Makarovs, agents were peeved and they began trying to force Kwan to tell them what they wanted to hear – something Kwan has consistently maintained that he is unable to do because he says he never had a second barrel.

The persecution of Albert Kwan escalated from agents knocking on his door and asking a few questions, to agents serving a search warrant on his home and business confiscating firearms, ammunition, computers, and business records, to his arrest as a "material witness" in a murder investigation, and his eventual prosecution on trumped-up violations of the National Firearms Act. The ATF claimed that a legal, "de-milled," semi-auto M14 was actually a machine gun, and that Kwan's possession of a detachable shoulder stock for one of his legally owned submachine guns made a semi-auto pistol he owned, which could also accept the detachable stock, an unregistered "short-barreled rifle." Both accusations blatantly disregarded ATF policy and established legal precedents.

When the jury learned that ATF had to extensively machine and add extra parts to Kwan's M14 to make it fire full-auto, they rejected that charge, but prosecutors were able to convince them on the short-barreled rifle charge. Then the judge discovered that ATF and prosecutors had misled him and the jury about the stock and its multiple applications so he took the unusual step of overturning the conviction. But the government still didn't want to let go of Albert Kwan so they appealed the reversal, but Kwan won the appeal in November of 2008. Since then Kwan has been going through legal channels trying to recover his property. The ordeal has cost him more than three years, his Army Reserve retirement, his firearms business, his commercial real estate business, his reputation, and tens of thousands of dollars above and beyond his life savings.

So, how much should one cooperate with the police? The principled answer remains the same – cooperate only as much as the law requires. But in a world where federal prosecutors are willing and able to use the system to retaliate against people who don't cooperate, the principled response carries its own set of risks. That shouldn't be the case in a nation based on laws. And it begs the question of just what kind of nation we are becoming.

Permission to reprint or post this article in its entirety is hereby granted provided this credit is included. Text is available at www.FirearmsCoalition.org.