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Judge considers dropping Trolley Square gun charge

Federal firearm laws are too vague in this case, lawyer says

A federal judge is considering whether to dismiss a criminal charge against a West Valley City gun dealer accused of illegally selling the shotgun that Sulejman Talovic used in his killing spree at Trolley Square.

An attorney for Westley Wayne Hill wants the charge of selling a firearm to an unauthorized person dropped, claiming federal gun laws are too vague in this case.

"The gun in question is generally recognized as a shotgun, regardless of whether the pistol grip accessory is attached," attorney Earl Xaiz wrote in papers filed in federal court.

Hill, 38, is accused of selling a Maverick Arms Model 88 12-gauge shotgun to the 18-year-old Talovic on Nov. 13, 2006. The shotgun was equipped with a pistol grip, which federal authorities say makes it illegal for anyone under 21 years of age to possess.

On Feb. 12, Talovic walked into the Trolley Square mall and opened fire, killing five people and wounding four others before dying in a shootout with police. He was armed with the shotgun, a bandolier of shells around his waist, a .38 Special revolver and a backpack full of bullets.

A federal grand jury has indicted two men on charges of illegally selling Talovic the stolen .38 Special and another man on a charge of lying to federal agents about it.

Hill was indicted on charges of selling a firearm to an unauthorized person and failure to maintain records.

Xaiz said in a motion to dismiss that the government can't prove that Hill willfully violated the law when he sold Talovic the shotgun. Federal prosecutors countered they don't need to prove any "evil intent" and suggested Hill understood the requirements of federal law but failed to follow it.

In court papers, federal prosecutors reveal new details about the shotgun.

"Salt Lake City Police Department homicide investigators found a receipt for the weapon showing he purchased it from Sportsman's Pawn in West Valley City, Utah," assistant U.S. Attorney John Huber wrote. "ATF transaction paperwork confirms that Talovic purchased the firearm from the pawnshop when he was under 21 years of age."

The U.S. Attorney's Office said the original owner of the shotgun told police that when he purchased the weapon it came equipped with a pistol grip. A Texas gun dealer also told federal authorities the weapon was not manufactured with a buttstock.

"Officers noted that the bolt which holds the pistol grip was pristine, suggesting the bolt has not been removed since the firearm left the factory," Huber wrote.

Attorneys for both sides argued the case on Oct. 11 before U.S. District Court Judge Dale Kimball, who took the matter under advisement. Hill is scheduled to go on trial on the charges on Nov. 26.

In the case involving the .38 Special, Mackenzie Hunter, 19, Brenden Taylor Brown, 20, and Matthew Hautala, 19, are scheduled to face trial on Nov. 5.