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Friday, October 15, 2004 - Page updated at 12:19 A.M.
Gun-shop owner in D.C. sniper case faces tax charges
By Maureen O'Hagan
Brian Borgelt, owner of Bull's Eye Shooter Supply in Tacoma, was charged in U.S. District Court in Tacoma with five misdemeanor counts of failure to file a tax return.
"Given the evidence they had, I'm frankly surprised that the charge is income-tax" related, said Paul Luvera, an attorney who recently won a $2 million settlement from Bull's Eye for families of sniper victims.
The U.S. Attorney's office, however, said that they were hamstrung by the requirements of the law governing Federal Firearms Licensees, which would have required proof that Borgelt's violations were "willful."
More than a case study of an errant gun dealer, however, Borgelt's story is symptomatic of problems with firearms enforcement nationwide, experts say.
"If we have this one dealer, there's obviously others," said Joe Vince, a former ATF agent who now runs a consulting business, Crime Gun Solutions.
In fact, in July, the Justice Department published a report critical of the inspection and enforcement procedures of the Bureau of Alcohol, Tobacco, Firearms and Explosives, including routine failures to take serious action when problems were discovered. Changes are "essential," according to the report, "for reducing the availability of illegal firearms to criminals."
In other words, to prevent what happened in the case of the D.C. snipers, who went on a shooting spree in the fall of 2002 using a rifle they had shoplifted from Borgelt's gun shop.
Hopped up with special equipment, the $1,600 Bushmaster XM15 was on display behind a counter at Bull's Eye Shooter Supply. Somehow, convicted teenage sniper Lee Boyd Malvo managed to walk out undetected with the 35-inch weapon.
When authorities caught Malvo and his accomplice, John Muhammad and traced the weapon back to Borgelt's shop, they discovered that Bull's Eye had no sales records for 78 weapons missing from the shelves.
Gun dealers are required to keep careful track of what weapons are sold to whom, and to certify that the buyers have undergone background checks.
Even before the sniper case, ATF officers were well aware of problems at Borgelt's business.
Between 1997 and 2001, guns traced back to Bull's Eye were used in 52 crimes, including homicides, kidnappings and assaults, a rate that put it among the small percentage of gun dealers whose guns repeatedly wind up in the hands of criminals.
In 1994, the ATF traced a crime gun back to his shop and found problems in his record-keeping. At that time, he was warned about the consequence of future violations. In repeated inspections from 1998 to 2002, he was unable to account for 238 guns, and in 2000 received a warning that any future violations would be viewed as "willful in nature."
Jeff Sullivan, chief of the criminal division in the U.S. Attorney's Office, said these records are extremely important to law enforcement, which use them to track down possible suspects.
But it was no simple matter charging Borgelt with a crime, according to Sullivan, who said Borgelt cleaned up his record-keeping after the serious warning. The legal requirement that the violations be willful could not be met, he said.
However, investigators learned that Borgelt had repeatedly failed to file federal income-tax returns. He was charged with five counts, one for each year between 1997 and 2001, that he failed to report nearly $600,000 in income.
His lawyer, Jim Frush, said that Borgelt's accountants had advised him there was no rush in filing the returns, and that it's unlikely significant taxes will be owed.
"The only reason they're bringing it is they concluded they can't win a firearms case against him, even after all that posturing," Frush said.
As for the tax charges, he added "the government isn't going to be able to prove their case. They have to prove he willfully failed to file returns."
Seattle Times staff reporter Mike Carter contributed to this report.
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