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UNITED STATES v. ALERS

May 19, 1994

UNITED STATES OF AMERICA, Plaintiff,
v.
NELSON ALERS, Defendant.



The opinion of the court was delivered by: LECHNER

 LECHNER, District Judge

 After a plea of guilty, defendant Nelson Alers ("Alers") was sentenced to a term of 97 months incarceration. This opinion sets forth the basis for the sentence imposed on Alers. *fn1"

 On 1 June 1990, Alers, a New Jersey resident, obtained a type 01 Federal firearms license (the "Federal License") issued by the Bureau of Alcohol, Tobacco and Firearms ("ATF"). PSR, P 10. The Federal License authorized Alers to receive interstate shipments of firearms but did not authorize the sale of those firearms in New Jersey. Id. On 14 March 1991, Alers obtained a license from the state of New Jersey authorizing him to repair firearms within the state. Id.

 Between about 31 December 1991 and 22 January 1993, Alers used his Federal License to acquire 461 firearms from out-of-state dealers. *fn2" Id., PP 11-12. Federal law requires any holder of a Federal firearms license to accurately record, on a Firearms Transaction Record ("Transaction Record"), the receipt and disposition of every firearm which comes into his or her possession. See 18 U.S.C. §§ 922(m), 923(g)(1)(A).

 On 1 April 1993, ATF conducted a routine compliance inspection of Alers' business in Jersey City, New Jersey. The ATF examined Alers' Transaction Records and found they showed only two firearms were received and transferred by Alers between 1 June 1990 and 31 March 1993. PSR, P 14. Upon questioning, Alers told ATF agents he had received five firearms since 1 June 1990 and that three of these were returned to the manufacturer as defective. Id. ATF agents issued Alers a "report of violations" for failing to maintain Transaction Records in relation to the three firearms which were returned to the manufacturer. Id.

 A subsequent investigation by the ATF of United Parcel Service ("UPS") shipping records revealed Alers had received approximately 200 firearms through UPS by April 1993. Id., P 16. In all, ATF determined Alers had received 468 firearms at his residence since obtaining the Federal License. Id. ATF discovered that the "vast majority" of these weapons consisted of automatic handguns commonly referred to as 'Saturday Night Specials.' Id., P 17. Alers' Transaction Records did not reveal the receipt of any of these handguns. Id. The ATF investigation also revealed Alers had received a variety of prohibited assault weapons, including one Chinese SKS 7.62 mm semi-automatic assault rifle, two automatic assault rifles and two Intratec Model Tec-9 semi-automatic assault pistols. Id.

 On 5 August 1993, ATF executed a search warrant at Alers' home. Thirty-one firearms were seized. Among these, seven were prohibited assault weapons. Id., P 19. These assault weapons included one AK-47 assault rifle, one .22 calibre rifle, one Ruger mini 14 rifle, two SKS 7.62X39 Chinese assault rifles and two AA Arms 9mm assault pistols. Id. On the same day, ATF arrested Alers. Id., P 20.

 Upon his arrest, Alers admitted to buying more than 400 firearms and selling them to one Louis Demondo ("Demondo"). *fn3" Id. Alers stated he did so without completing the required Transaction Records. Id. Alers also admitted he believed, when selling the firearms to Demondo, that Demondo was selling the firearms to illegal narcotics dealers in New York City. Id. Alers also admitted to having obliterated the serial numbers from the firearms before selling them to Demondo. Id.

 After his arrest, Alers made a "controlled delivery" of twenty-one firearms to Demondo, enabling the ATF to arrest Demondo. Id., P 22. Upon his arrest, Demondo told ATF agents that Alers "would give him from twenty to twenty-five guns each week to sell." Id., P 24 "Demondo paid Alers for the firearms as he sold them and estimated he had sold as many as 400 handguns of various make and caliber." Id. Demondo also admitted to having sold the firearms to drug dealers. Id.

 On 17 February 1994, Alers entered a plea of guilty to a three-count information (the "Information") charging him with several violations of Federal firearms laws. Specifically, the Information charged Alers:

 
[2] did knowingly and wilfully make false statements with respect to information required to be kept in his Firearms Transaction Record[s], namely the number of firearms he had received and sold since obtaining a Federal firearms license[,] in violation of [18 U.S.C. §§ ] 924(a)(1)(A) and 2 . . . ; [and]
 
[3] being a Federally licensed firearms dealer, did knowingly and wilfully fail to make appropriate entries as to material facts in a record he was required to keep pursuant to [18 U.S.C. § ] 923, in that he failed to record his acquisition and disposition of approximately 468 firearms, and failed to have the purchaser of these firearms execute a ...

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