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United States v. Carlson

United States District Court, D. Colorado

August 3, 2018

UNITED STATES OF AMERICA,
v.
ERIC WILLIAM CARLSON, Defendant.

          FINDINGS, CONCLUSIONS AND ORDER

          R. Brooke Jackson, United States District Judge

         This case was tried to the Court on July 5, 2018. At the conclusion of the trial the parties requested an opportunity to submit post-trial briefs. The briefs have been received and considered.

         FINDINGS OF FACT

         1. On February 13, 2018 Dr. Carlson[1] completed ATF Form 4473 in order to purchase two shotguns at Stop Drop & Shop, a licensed firearms dealer located at 3952 N. Academy Blvd., Colorado Springs, CO 80917.

         2. Section A, question 11.b. of ATF Form 4473 asks, “Are you under indictment or information in any court for a felony, or any other crime for which the judge could imprison you for more than one year? (See Instructions for Question 11.b.).” Dr. Carlson checked the box “No.” 3. The second page of ATF Form 4473 contains a certification that reads in pertinent part as follows:

I certify that my answers in Section A are true, correct and complete. I have read and understand the Notices, Instructions, and Definitions on ATF Form 4473. . . . I understand that a person who answers “yes” to any of the questions 11.b. through 11.l. . . . is prohibited from purchasing or receiving a firearm.. . . I also understand that making a false oral or written statement, or exhibiting any false or misrepresented identification with respect to this transaction, is a crime punishable as a felony under Federal law, and may also violate State and/or local law. (bolding in original, italics added).

         4. The employee who dealt with Dr. Carlson on February 13, 2018, John Foster, testified that he told Dr. Carlson, as is his routine practice, to read and fill out the first page of ATF Form 4473, then flip the page over and read the top portion on the second page (the certification quoted in part above), and then sign the form.

         5. Dr. Carlson testified that he did not read the certification language before he signed and dated the form, but he had read that language in the past. Oddly, Dr. Carlson dated his signature 3/13/17 and then corrected the date to say 3/18/18. Gov't Ex. 2. The actual date was 2/13/18. He did not explain the error in the date, and Mr. Foster testified that he didn't notice it. Dr. Carlson also abbreviated Colorado Springs as “Colo Spgs” rather than spelling it out or using a U.S. Postal abbreviation, but he corrected that mistake.

         6. At the time Dr. Carlson was in fact under indictment for a felony. Specifically, in United States v. Thomas Forster Gehrmann, Jr. and Eric William Carlson, Case No. 15-cr-00303-RBJ, pending in this district before this judge, Dr. Carlson was under indictment for one count of Conspiracy to Defraud the United States in violation of 18 U.S.C. § 371 (Count 1), and three counts of Willfully Subscribing a Tax Return Containing Falsities and Causing Acts to be Done in violation of 26 U.S.C. § 7206(1) and 18 U.S.C. § 2 respectively (Counts 5, 6 and 7).

         7. In 15-cr-00303-RBJ this Court had issued an order on March 4, 2016 suppressing certain evidence that the United States planned to use against Dr. Gehrmann and Dr. Carlson. That suppression order was appealed, and while the interlocutory appeal was pending, the case had remained largely inactive in the district court.

         8. Notwithstanding the inactive status of the 2015 case due to the then-pending appeal, Dr. Carlson acknowledged during the hearing in the present case that he remained aware of the indictment on February 13, 2018.[2] However he testified that the indictment was not in his mind at the time. He also testified that he looked at question 11.b, saw the word “felony” in bold letters, and then answered “no” because he had not been convicted.

         9. Dr. Carlson was under Pretrial Services supervision in case number 15-cr-00303-RBJ in February 2018. He testified that he told the Pretrial Services officer that he possessed firearms but no restriction was imposed.

         10. During the trial in the present case, Dr. Carlson testified that he purchased the two shotguns to fulfill Christmas presents that he had given each of his two sons-in-law. He presented photographs of the shotguns at the time because, according to him, he didn't have the money to make the purchases yet. Both sons-in-law confirmed at trial that they had been given gifts of the shotguns for Christmas 2017, and that the Carlson family had a significant interest in hunting and firearms.

         11. Both sons-in-law were eligible to purchase a shotgun and could have gone to the firearms dealer, picked up the shotguns, and completed ATF Form 4473's ...


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