“Attempted Possession Of Unlawful Ammunition?”

Washington-Map-Shells-Lamp-Cropped-ROH The story of Washington D.C. resident Mark Witaschek goes back to the summer of 2012. Emily Miller of the Washington Post gives a brief history:

Mr. Witaschek, a successful financial adviser with no criminal history, is the first known case of a citizen being prosecuted in D.C. for inoperable ammunition. Washington police and prosecutors have spent a year and a half trying to nail him for the possession of so-called unregistered ammunition.

A hunter and gun owner, Mr. Witaschek has always kept his firearms at his sister’s house in Virginia. If convicted, he

faces a year in jail and a $1,000 fine for having a single, inoperable shotgun shell in his home. The jury trial starts on Feb. 11.

The Metropolitan Police Department raided Mr. Witaschek’s rented Georgetown house twice in the summer of 2012 on the word of his angry ex-wife.

The first raid was done without a proper search warrant. The police found a box of rifle cartridges found in a closet but because the search was illegal, as evidence the box of cartridges was thrown out.

The police returned for a second search and this time, armed with a warrant, they found an antique Colt revolver (which is legal in the District of Columbia,) a holster (also legal), a shotgun shell that had misfired and was inoperable, and a box of muzzle loading sabots.


Sabots are plastic covers that make it easier to push the bullet into a muzzleloader gun. There is no propellent on the bullet or sabot — because the gunpowder is separated — so it is not clear that it can be categorized as ammunition and thus only registered gun owners can possess it.

The 12 gauge shotgun shell was a remnant of a hunt in which Witaschek had participated. At trial, Witaschek was put on the stand:

Defense attorney Howard X. McEachern asked his client to explain how he came to have a shotgun shell on his desk

at his home in Georgetown. Mr. Witaschek explained that he kept the shotgun shell as a “souvenir” from a hunting trip in southern Virginia with friends in 2006.

He said that as a deer approached, “I raised the shotgun, took aim, fired and nothing happened.” He looked up and saw the deer run straight into a tree.

Mr. Witaschek, a lifelong hunter, approached the animal and saw that it had died from impact. He opened the action on the gun, extracted the shell and put it into his pocket.

When he brought the deer back to the hunting camp, his friends teased him about how he did it. “I tend to keep mementos from hunts, like expended shells, when there’s a story behind it,” Mr. Witaschek told Judge Robert E. Morin.

Mr. McEachern asked his client about the state of the plastic shell. “I assumed because it did not fire that it was inoperable,” Mr. Witaschek replied.

Is an inoperative shell “ammunition?” Is a shell that cannot be fired “ammunition?” Oritsejemine Trouth, assistant attorney general for the District of Columbia and who demonstrated a less than stellar knowledge of weapons (even less than we know, and that is saying something) cross examined Witaschek.

Ms. Trouth did not know basic firearm terminology and function. She asked the defendant about the hunting trip. “You took the shell out of the rifle?”

Mr. Witaschek calmly replied, “Out of the shotgun, yes.”

“You found the shell at the deer?” she asked. He explained again that a misfired shell was still inside the 12-gauge shotgun.


The line of questioning continued until Ms. Trouth moved on to the other charge of muzzleloader copper bullets with sabots.

“These projectiles are intended to be shot, right?” Mr. Witaschek explained how a muzzleloader firearm worked and that the gun powder is put in separately and the primer put in last.

“So it’s a bullet without the other parts?” asked Ms. Trouth. Mr. Witaschek looked at her curiously before agreeing that it was indeed a bullet without the other parts of a shell or cartridge that are necessary to fire it.

(Later, when she returned to this topic, Ms. Trouth asked, “The muzzleloaders are designed like a bullet? If you hit something, they will expand like a hollow point?”)

Mr. Saba whispered to Ms. Trouth, and she went back to questioning the shotgun shell.

“So this cartridge is still intact?” she asked.

“With the exception of the primer,” Mr. Witaschek replied.

“So it’s intact?” she asked again.

“When you say ‘intact,’ you don’t know what is going on inside any shell,” the defendant explained.

“It’s a full cartridge with all its parts?” Ms. Trouth asked.

“It’s a cartridge which I believed was inoperable, ” Mr. Witaschek responded.

Metropolitan Police Department Sgt. Curt Sloan sat in the courtroom.

Ms. Trouth asked the defendant, “But if I had Sgt. Sloan put the 12-gauge cartridge in a shotgun and point it at you, would you allow him to shoot it at you?”

Mr. Witaschek has taken numerous hunter safety classes. He knows the basic rules, which include always treating a firearm as if it is loaded and keep it pointed in a safe direction.

For the first time in the entire trial, Mr. Witaschek looked outraged. “That is a ridiculous question. I would never allow anyone to point a gun at me. I would not point a gun at anyone whether or not it had an expended shell or I knew it to be empty or not. You never point a gun at anyone. Period.”

It is hard for us to understand how a box of sabots is any different from a driveway full of pebbles when it comes to being classified as “ammunition for a firearm.” Neither the sabot or the pebble can be propelled out of a gun because there is no propellant – no gun powder – to send the sabots out of the gun barrel.

The same holds true for the expended shotgun shell. If the shell does not work and cannot work, is it actually “ammunition?”

If the purpose of DC ban on ammunition is to prevent people from firing a gun at others, how are objects that cannot be fired “ammunition?”

A rational person would have to say that box of sabots is not the same as a box of cartridges and an inoperative shell is not the same as an operative one and neither the sabots or inoperative shell is “ammunition” as neither can be fired from a weapon in their current form and state.

If the “rational man” argument doesn’t persuade people, how about this:

William F. Vanderpool, a retired supervisory special agent for the Federal Bureau of Investigation, will [explained] to the judge that the saboted lead balls have no powder or propellant attached, so are not “live.” Furthermore, muzzleloader firearms are exempt from the registration requirement.

Witaschek believed he had a box of lead and a souvenir – nothing more nothing less. At the very least a prosecutor would have to say that Witaschek had no intention of breaking the law. In fact, Witaschek who is an avid hunter, keeps his weapons at his sister’s house in Virginia or in a locked weapons safe at a range in order to comply with the DC laws and regulations.

(courtesy of NBC)

(courtesy of NBC)

Contrast the actions of Witaschek with the actions of NBC’s “Meet The Press.”

In December 2012, during a segment on “Meet the Press,” Gregory held up a 30 round magazine for a weapon. In the District of Columbia, possession of the magazine is illegal. When asked to confirm the magazine was illegal, the DC Police said in an email:

“From: “DC Police (imailagent)”
Subject: Email from DC Police (Intranet Quorum

Date: December 24, 2012 4:13:12 PM EST
To: –

The Metropolitan Police Department is in receipt of your e-mail regarding David Gregory segment on “Meet the Press.” MPD has received numerous e-mails informing us of the segment. NBC contacted MPD inquiring if they could utilize a high capacity magazine for their segment. NBC was informed that possession of a high capacity magazines is not permissible and their request was denied. This matter is currently being investigated. Thank you for taking the time to bring this matter to our attention.

Customer Service – Metropolitan Police Department”

The police were then asked to produce the email or correspondence with Meet the Press on whether possession of the magazine was legal or not. The Police provided a copy of the actual email sent to NBC:

(click for larger version)

(click for larger version)

Yet despite Gregory breaking the law, and despite him knowing that it was illegal to possess the magazine, the District Attorney General declined to prosecute Gregory or anyone associated with Meet the Press. A letter released by the District Attorney General says in part:

Having carefully reviewed all of the facts and circumstances of this matter, as it does in every case involving firearms-related offenses or any other potential violation of D.C. law within our criminal jurisdiction, OAG has determined to exercise its prosecutorial discretion to decline to
bring criminal charges against Mr. Gregory, who has no criminal record, or any other NBC employee based on the events associated with the December 23,2012 broadcast. OAG has made this determination, despite the clarity ofthe violation of this important law, because under all of the circumstances here a prosecution would not promote public safety in the District of Columbia nor serve the best interests of the people of the District to whom this office owes its trust.

After reading that tripe, can anyone explain how prosecuting a guy who didn’t have any live ammunition in his home serves “the interest of the people?” Two years and thousands of man hours for one box of sabots and an inoperable shotgun shell serves “the interest of the people” but arresting a high profile “journalist” who willingly and deliberately broke the law is a “throw away?”

Mark Witaschek

Mark Witaschek

On Wednesday, the judge in Witaschek’s case found him guilty of “attempted possession of unlawful ammunition.”

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.

Being that the items in question were in Witaschek’s possession, it is hard to see how he was convicted of “attempted possession.” After all, he had the alleged “unlawful ammunition” in his house.

There is so much in this story that has a wrong “feel” to it. “Attempted possession” of something already Witaschek already owned. A inoperable shell being described as “ammunition.” A box of sabots without gunpowder being the same thing as cartridges with gunpowder. The pass on prosecuting Gregory for deliberately breaking the law but prosecuting Witaschek for ignorance of what is at best an ambiguous area of the same law.

This case should never have happened. It never should have been prosecuted. It never should have gone to trial. A guilty verdict never should have been rendered.

But we suspect that we should shut up about it lest we, or our readers in the District of Columbia be charged with “reading a blog on the attempted possession of unlawful ammunition.”

That has to be a crime too, right?

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