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MILLER: D.C. investigating Mark Witaschek’s taxes after conviction for muzzleloader bullet

Gun owner subject of government tyranny

- The Washington Times - Wednesday, April 9, 2014

The District of Columbia has spent almost two years persecuting a good man because they wrongly thought he had guns in the city.

It wasn't enough to prosecute Mark Witaschek for having one shotgun shell and a box of muzzleloader bullets. After a three-month trial that ended in a conviction, the city started an investigation into the businessman's taxes.

This abuse of power must end.

On the word of a bitter ex, the police searched Mr. Witaschek's Georgetown home twice in 2012 looking for guns. They never found the bounty of firearms since Mr. Witaschek, a hunter, keeps his guns at his sister's home in Virginia.

The D.C. cops went to Sylvia Witaschek's home in the commonwealth and demanded she show them the guns, but she refused.

The District's unelected Attorney General Irvin Nathan infamously declined to prosecute NBC's David Gregory for possession of a "high-capacity" magazine in December 2012, claiming it was not in the interest of public safety.

However, Mr. Nathan refused to drop the ammunitions charges against Mr. Witaschek and instead, sicced two of his prosecutors on the case, which dragged on for 18 months.

On March 26, Mr. Witaschek was convicted by Judge Robert Morin for "attempted unlawful possession of ammunition" for the box of copper and lead pieces that go in an antique-replica muzzleloader gun.

The judge did not rule on the shotgun shell, which had misfired at a hunt years ago. The District only allows registered gun owners to possess ammunition.

The nation's capital did not think giving this man a criminal record was enough. At sentencing, Assistant District Attorney Oritsejemine Trouth asked the judge to demand Mr. Witaschek register as a gun offender with the police within 48 hours.

And they still weren't done. The day after the trial, an agent from the D.C. Office of Tax and Revenue showed up at Mr. Witaschek's office.

His employer was given a summons to produce payroll and a multitude of other records for investigators by April 11. No allegations have yet been made in this fishing expedition.

Mr. Witaschek said he filed D.C. taxes and paid up to the due dates required, until he moved to Virginia last year.

I asked Mr. Witaschek why he thought this tax investigation suddenly arose.

"I think the police wanted to confiscate my guns from the beginning. They are really angry that I didn't comply," the businessman explained. "They will use whatever government resources they choose to get what they wanted — or make me pay. They already used the U.S. attorney, a grand jury, the D.C. attorney general, and now the Office of Tax and Revenue."

He added, "I don't think they'll stop here. After two years of this, why would they?"

Mr. Witaschek feels he has been wrongly convicted. His attorney, Howard X. McEachern, filed a motion for a new trial on Friday. Mr. McEachern will also appeal the ruling both on the technicality of the charge and his client's Second Amendment rights.

The basis for a new trial is that muzzleloader bullets are not "ammunition" under the law.

In the court filing, Mr. McEachern points out that muzzleloader firearms are antique replicas and exempt from the registration laws. They are never used in crimes because they can only fire one shot at a time, and it takes a long time to reload.

The lawyer explained that the Knight-brand bullets did not contain the gunpowder or primer present in cartridges used in modern firearms.

At one point during the trial, Judge Morin seemed to be using common sense. He said to the prosecutors, "It would seem somewhat counterintuitive that a replica of a muzzleloader itself would be legal in the District of Columbia, but the ammunition used for those weapons would be illegal."

Yet when it came to a verdict, the judge made his decision based on the bizarre notion that there could possibly be another use for a piece of cone-shaped copper.

This came from the prosecutors' insistence that there are muzzleloader firearms that could be converted to semi-automatic, which Mr. Witaschek could, in theory, secretly own. He does not.

But even if he did, the government never explained how a piece of metal with no primer or gunpowder would be propelled from a modern rifle.

The judge finally just said, "I'm persuaded that they are bullets. And they look like bullets. They are hollow-point bullets ... . They're not musket balls."

A new trial could bring back the issue of the single, misfired shotgun shell. Most of the first trial was a debate over the operability of the shell.

Judge Morin clearly did not understand that primer being struck is what would make the shell most likely inoperable. He held up the green shell from evidence, shook it and told the court: "I can't hear any powder."

When the government asserted that it would be "dangerous" to open the shell any place other than a "lab," the judge said he could not determine if it was classified as ammunition.

No matter, operability is irrelevant because shotgun shells and empty casings can only be possessed in the District by residents with registered guns.

Mr. Witaschek's trials and tribulations have gotten national attention as an example of how government can become tyrannical and destroy a law-abiding person.

The Founding Fathers said the most important reason for the Second Amendment was to prevent a government from accumulating too much power. That is why Mr. Witaschek's case should scare every American.

Emily Miller is senior editor of opinion for The Washington Times and author of "Emily Gets Her Gun" (Regnery, 2013).

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