OPINION:
In a surprising twist at the end of a long trial, a District of Columbia judge found Mark Witaschek guilty of “attempted possession of unlawful ammunition” for antique replica muzzleloader bullets.
Judge Robert Morin sentenced Mr. Witaschek to time served, a $50 fine and required him to enroll with the Metropolitan Police Department’s firearm offenders’ registry within 48 hours.
Outside the courtroom, I asked Mr. Witaschek how he felt about the verdict. “I’m completely outraged by it,” he said. “This is just a continuation of the nightmare. Just to sit there. I could not believe it.”
Shaking his head, he added, “None of these people know anything about gun issues, including the judge.”
His wife Bonnie Witaschek was crying. “It’s just so scary,” she said. “You never think you’ll end up in a situation like this, but here we are.”
Mr. Witaschek’s attorney Howard X. McEachern shook his client’s hand and said, “We’re not done.” Mr. McEachern plans to appeal the decision.
I asked the defense attorney for his opinion of the verdict. “Clearly the judge thought that this was overkill — the sentence reflects how he felt about the prosecution of this case,” he replied.
Until the final hours of the trial, both the defense and government focused the case on whether the single 12 gauge shotgun shell that was found in Mr. Witaschek’s D.C. home was operable. The judge, however, never ruled on it.
In the afternoon on Wednesday, Judge Morin shook the plastic shell and tried to listen to something inside. He said he could not hear any gunpowder. He then asked the lawyers to open the shell to see if there was powder inside.
(This seemed like a bizarre request since the lack of primer — not gunpowder — would be relevant to the interoperability of the misfired shell.)
Assistant Attorney General Peter Saba said that the government wanted to open the shell but that, “It is dangerous to do outside a lab.”
The prosecutors and police officers left the courtroom to try to find a lab that was open in the afternoon to bring the judge to cut the plastic off the section that holds the pellets. When that proved not possible in the same day, the judge decided to just rule on the bullets.
The 25 conical-shaped, .45 caliber bullets, made by Knight out of lead and copper, sat on the judge’s desk. They do not have primer or gunpowder so cannot be propelled. The matching .50 caliber plastic sabots were also in the box.
There was much debate over whether the bullets were legal since D.C. residents are allowed to buy antique replica firearms without registering.
The judge seemed inclined to throw out this charge since he repeatedly asked how the bullets could be illegal if the gun that they go in was not.
During lunch, the government came up with a list from ATF of types of muzzleloader rifles that could be converted to use rimfire ammunition. Not that Mr. Witaschek owned one of these nor was modern ammo at issue in the trial.
Nevertheless Judge Morin said, “I’m persuaded these are bullets. They look like bullets. They are hollow point. They are not musket balls.” He then ruled that Mr. Witaschek had possessed “beyond a reasonable doubt” the metal pieces in D.C.
The judge, however, still seemed to think this was a strange issue for a court. “It’s taken four lawyers all afternoon to get through an interpretation of whether or not these are lawful,” he noted.
Before sentencing, Mr. Witaschek addressed the judge.
“I’ve never been arrested in my life up until this incident,” he said, his voice cracking with emotion. “My use of firearms is strictly recreational. I’ve never had any criminal intent.”
The businessman asked for leniency so that he would not lose his license to practice his financial management company.
“I run the risk of losing my job, my occupation, as a result of this conviction,” he said. “I ask the court not to add to that burden of what’s already been done to my life over the last two years.”
(Spc. Adam Meckler, who was also convicted of possession of ammunition, but no gun. When I profiled him, he said that the worse part was going to the police station to be put on D.C.’s gun offenders registry. Read my interview with him last year here: D.C. Arrests Vet for Unregistered Ammunition.)
The nation’s capital is overrun with criminals, yet the police and prosecutors continue to waste time and resources to go after law abiding people who inadvertently cross the ridiculous firearms laws.
What makes the situation more dire is that the unelected attorney general for D.C., Irvin Nathan, does not go after his rich, liberal buddies. Just a year ago, Mr. Nathan declined to prosecute NBC’s David Gregory for knowing breaking the law against possessing a “high-capacity magazine.” The attorney general said it was not in the interest of public safety.
But when it comes to regular people like Spc. Meckler and Mr. Witaschek, Mr. Nathan believes having ammo but no gun makes them a danger to society.
Good people are being destroyed by these vengeful prosecutions.
Mr. Witaschek and his wife moved to Virginia after his arrest in 2012. On the way out of the courtroom after his conviction, Mr. Witaschek said that the court clerk came up to him privately and said, “I’m glad you don’t live in D.C. anymore. These people are nuts about guns.”
Emily Miller is senior editor of opinion for The Washington Times and author of“Emily Gets Her Gun” (Regnery, 2013).
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