SHAWANO GUN & LOAN, LLC, d/b/a SHAWANO GUN & LOAN v. MARY JO HUGHES, Director of Industry Operations, Bureau of Alcohol, Tobacco, Firearms

The Honorable G. Patrick Murphy of the Southern District å
of Illinois, sitting by designation.
In the
United States Court of Appeals
For the Seventh Circuit
No. 10-2927
SHAWANO GUN & LOAN, LLC, d/b/a
SHAWANO GUN & LOAN,
Plaintiff-Appellant,
v.
MARY JO HUGHES, Director of Industry Operations,
Bureau of Alcohol, Tobacco, Firearms and Explosives,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 2:09-cv-00150-WCG—William C. Griesbach, Judge.
ARGUED JANUARY 18, 2011—DECIDED JUNE 7, 2011
Before TINDER and HAMILTON, Circuit Judges, and
MURPHY, District Judge.å

-- 1 of 18 --

2 No. 10-2927
MURPHY, District Judge. Shawano Gun & Loan, LLC
(Shawano) sells fishing equipment and firearms from
its sporting goods store and pawnshop in northern Wis-
consin. The Bureau of Alcohol, Tobacco, Firearms and
Explosives (ATF) revoked Shawano’s federal license to sell
firearms in December 2008 after it rejected Shawano’s
administrative appeal from a hearing officer’s finding
that Shawano willfully violated record keeping require-
ments of the Gun Control Act and pertinent regula-
tions. Shawano filed suit in the district court against
Mary Jo Hughes, ATF Director of Industry Operations,
under 18 U.S.C. § 923(f)(3) for de novo judicial review
of the administrative decision and requested an eviden-
tiary hearing. The district court thought there was
ample uncontroverted evidence that Shawano had will-
fully failed to comply with the record keeping require-
ments and granted summary judgment against Shawano
without conducting an evidentiary hearing. The district
court stayed enforcement of the revocation pending
appeal. The question for the district court and the issue
here is whether Shawano’s violations are willful for
purposes of the Gun Control Act. For the reasons that
follow, the district court’s judgment is affirmed.
I. Factual and Procedural Background
In 1998, Timothy Backes obtained a federal firearms
license for his sole proprietorship, now known as Shawano
and reorganized as a limited liability company (LLC). The
Gun Control Act requires firearms dealers to keep certain
records. The general record keeping provisions of the

-- 2 of 18 --

No. 10-2927 3
Gun Control Act of 1968 (GCA), 18 U.S.C. § 921 et seq., are
found at 18 U.S.C. § 923(g) and its implementing regula-
tions, 27 C.F.R. Part 478 (formerly Part 178). Firearms
dealers are required to ensure that a Firearm’s Trans-
action Record, ATF Form 4473, is completed properly
to record identifying information about firearm pur-
chasers, to prohibit transfers to persons prohibited from
possessing firearms, and to facilitate the tracing of fire-
arms involved in crimes. A prospective firearm pur-
chaser completes Sections A and C of ATF Form 4473 to
disclose certain identifying information and to answer
questions from which the dealer can determine whether
the firearm legally can be transferred to the prospective
purchaser. The firearms dealer completes Sections B and
D to provide information about the firearm being trans-
ferred, the identification documents produced by the
purchaser, and the results of the requisite Brady Law
National Instant Criminal Background Check System
(NICS check). Section D further requires the dealer to
certify that the dealer believes, based upon the informa-
tion disclosed in ATF Form 4473, that it is not unlawful
for the dealer to transfer the firearm to the prospective
purchaser. Such unlawful transfers are outlined in 18
U.S.C. § 922 and include, among others, transactions
where a dealer knows or has reasonable cause to believe
that the purchaser is a convicted felon, is a fugitive, uses
or is addicted to any controlled substance, has an adjudi-
cated mental defect, is an illegal alien, or has been con-
victed of misdemeanor domestic violence. 18 U.S.C.
§ 922(d). A dealer violates the GCA if the dealer
transfers a firearm based upon information in ATF Form

-- 3 of 18 --

4 No. 10-2927
4473 that he knows or has reason to believe is false. See 18
U.S.C. §§ 922(m) and 924(a)(1)(A); see also 27 C.F.R.
§ 478.124(c).
A federal firearms dealer also must maintain separate
records in bound form for the acquisition and disposi-
tion of firearms. This acquisition and disposition book
identifies each firearm that a dealer takes into its inven-
tory and that leaves the dealer’s inventory and the
person from whom it was acquired or to whom it
was transferred. A dealer’s acquisition and disposition
records must be readily available for inspection. See 27
C.F.R. § 478.125(e). In January 2002, ATF granted
Shawano a variance, allowing it to use a specialized
computer software program called Pawnmaster to input
and maintain acquisitions and dispositions of firearms,
provided that Shawano printed the records at least semi-
annually or when requested by an ATF officer, when
the system memory was purged, and upon discontinua-
tion of the business.
In December 1999, ATF Special Operations Inspector
John Moore conducted the first compliance inspection
of Shawano and noted nine violations: (1) failure to
ensure accurate completion of ATF Forms 4473; (2) failure
to properly maintain completed ATF Forms 4473;
(3) inconsistent dispositions of two firearms; (4) failure
to properly maintain the acquisition and disposition
book from August to December 1999, in that Shawano
kept computerized records without first obtaining a
computer variance; (5) failure to timely record disposition
entries in at least 145 instances; (6) failure to timely

-- 4 of 18 --

No. 10-2927 5
record acquisition entries in at least three instances;
(7) making a disposition entry when firearm was not
transferred; (8) failure to record acquisition and disposi-
tion information of a Browning pistol; and (9) failure to
properly record firearm model and serial numbers into
the acquisition and disposition book in at least twenty-
three instances. Mr. Backes signed the ATF Report of
Violations, which set forth the nine violations and the
corrective action to be taken.
In June 2004, ATF Inspector Casimir Mleczko con-
ducted a second compliance inspection, which uncovered
six violations: (1) improper transfer of eleven firearms
at a tavern as part of a raffle; (2) failure to provide writ-
ten notification to non-licensees and to display a sign
required by the Youth Handgun Safety Act; (3) seven
instances of improper transfer of firearms to per-
sons who indicated on ATF Forms 4473 that they were
prohibited; (4) failure to ensure proper execution and
completion of ATF Form 4473; (5) failure to maintain an
accurate record of receipt and disposition; and (6) failure
to make a semi-annual hard copy printout of the com-
puterized acquisition and disposition record as required
by the ATF computer variance. Inspection findings
were reviewed in July 2004, and the federal firearms
regulations were reviewed. Inspector Mleczko cautioned
Mr. Backes, Shawano manager Scott Backes, and another
employee about straw purchasers, incomplete ATF
Forms 4473, and prohibited purchasers. Mr. Backes
signed a second ATF Report of Violations, which noted
the violations and the corrective action to be taken.

-- 5 of 18 --

6 No. 10-2927
After this second compliance inspection revealed that
Mr. Backes was operating his business as an LLC rather
than a sole proprietorship, Mr. Backes submitted a new
license application disclosing his business entity status
as an LLC. In September 2005, Shawano Gun & Loan, LLC,
was licensed as a dealer, including pawnbroker, in fire-
arms other than destructive devices. Mr. Backes remains
its owner.
In March 2005, ATF Director of Industry Operations
John Jarowski sent Mr. Backes a letter to schedule a
meeting to discuss the violations found during the
second compliance inspection. The letter included a
warning that any willful violation of federal firearms
laws and regulations might result in revocation of the
federal firearms license and that any violations, either
repeat or otherwise, could be viewed as willful. Mr. Backes
responded to the letter with intended corrective action,
and a warning conference was held in April 2005 to
discuss the violations and necessary corrective action.
A follow-up letter from Director Jarowski summarized
the corrective action proposed by Mr. Backes, including
having a second person check each ATF Form 4473
before every transfer and having manager Scott Backes
oversee and maintain the acquisition and disposition
records, and again warned Mr. Backes of the possible
consequence of future violations.
In March 2007, Industry Operations Inspector Mary Jo
Holpit conducted a third compliance inspection. This
inspection revealed seven violations, including repeat
violations found during the earlier inspections: (1) unap-

-- 6 of 18 --

No. 10-2927 7
According to the Report, Shawano acquired 3896 firearms 1
and disposed of 2942 firearms from January 1, 2006, through
March 15, 2007.
proved use of the Pawnmaster computer program since
moving the location of the business and changing its
license from a sole proprietorship to an LLC; (2) inaccurate
reflection of inventory in the acquisition and disposi-
tion records and failure to print the acquisition and
disposition records for over nine months; (3) failure to
provide the required Youth Handgun Safety Notice to
purchasers; (4) Shawano’s new location was less than 1000
feet from a school and within a school zone; (5) failure
to obtain valid identification in at least four instances;
(6) failure to properly execute and review ATF Forms
4473; and (7) knowingly assisting straw purchases by
altering and reprinting pawn tickets. Mr. Backes signed
a third ATF Report of Violations, which set forth the
violations and the corrective action to be taken. In re-1
sponse to the violation report, Mr. Backes submitted a
letter addressing each violation and also submitted a
variance request to use the Pawnmaster computer pro-
gram.
On November 5, 2007, Shawano was served with a
Notice of Revocation issued on October 20, 2007, by
Mary Jo Hughes, ATF Director of Industry Operations,
stating that its federal firearms license was being re-
voked. The Notice of Revocation lays out five counts of
willful violations of the GCA and applicable regulations.
Count 1 charges that in 2006 and 2007, Shawano failed to

-- 7 of 18 --

8 No. 10-2927
properly record the disposition of at least fifty-four fire-
arms in the acquisition and disposition book. This is a
repeat violation from the 1999 and 2004 compliance
inspections and the 2005 warning conference. Count 2
charges Shawano with failure to obtain complete and
correct responses to questions on ATF Forms 4473 on
thirteen occasions in 2006 and 2007. This also is a
repeat violation from the 1999 and 2004 compliance
inspections and the 2005 warning conference. Count 3
charges Shawano with willfully making false record
entries and aiding and abetting the making of false
record entries by another on five occasions by allowing
firearm transfers through straw purchases. Count 4
charges Shawano with selling or otherwise transferring
firearms to prohibited persons. This is a repeat viola-
tion from the 2004 compliance inspection and the 2005
warning conference. Count 5 charges Shawano with
willfully selling or otherwise disposing of firearms
where the transferee indicated that he/she was not the
actual purchaser. Shawano timely filed a request for an
administrative hearing to review the revocation decision
under 18 U.S.C. § 923(f)(2) and 27 C.F.R. § 478.73 and
was granted a stay of revocation pending ATF’s adminis-
trative review hearing and decision.
On August 7, 2008, ATF Hearing Officer Michael R. Price
conducted an evidentiary hearing at ATF’s field office
in Milwaukee. Hearing Officer Price issued a Report and
Recommendation on August 15, 2008, concluding that
ATF established (1) a willful failure to properly record the
disposition of at least fifty-four firearms into the acquisi-
tion and disposition record; (2) a willful failure to obtain

-- 8 of 18 --

No. 10-2927 9
complete and correct ATF Forms 4473 on thirteen occa-
sions; (3) willful making of false record entries and aiding
and abetting the making of false record entries on five
occasions by allowing straw transfers; (4) willful transfer
of firearms to three individuals who indicated on ATF
Forms 4473 that they were prohibited from possessing
firearms; and (5) willful transfer of firearms on three
occasions to persons who indicated on ATF Forms 4473
that they were not the actual buyer of the firearms. The
willfulness finding was based on Mr. Backes’s awareness
of his legal obligations and indifference to becoming
personally involved to ensure corrective action. Hearing
Officer Price recommended that the license be revoked.
ATF rejected the administrative appeal and served
Final Notice of Revocation on Shawano in December 2008.
In February 2009, Shawano filed suit in the district court
under 18 U.S.C. § 923(f)(3) for judicial review of the
administrative decision to revoke its federal firearms
license and requested an evidentiary hearing as part of
the de novo judicial review. In its decision granting
summary judgment without an evidentiary hearing,
the district court accepted affidavits from Mr. Backes,
Shawano’s counsel, and the individuals who bought
the firearms that are charged in Count 3 as straw pur-
chases. The district court described the five counts set
forth in the Notice of Revocation and found that
Shawano’s violations were willful because the repetitive
nature of the violations showed purposeful disregard or
plain indifference to federal rules and regulations. En-
forcement of the revocation decision is stayed pending
this appeal.

-- 9 of 18 --

10 No. 10-2927
By final rule of the Department of the Treasury and the 2
Department of Justice effective January 24, 2003, the governing
regulations were reorganized to reflect the division created by
the Homeland Security Act of 2002 of the Bureau of Alcohol,
Tobacco and Firearms, Department of Treasury, into two
separate agencies: the Bureau of Alcohol, Tobacco, Firearms,
and Explosives (ATF) in the Department of Justice and the
Alcohol and Tobacco Tax and Trade Bureau (TTB) in the
Department of the Treasury. Reorganization of Title 27, Code
of Federal Regulations, 68 Fed. Reg. 3744-01, 2003 WL 158517
(Jan. 24, 2003). ATF is tasked with inspecting and examining
the records of licensed firearms dealers to ensure compliance
with the Gun Control Act’s implementing regulations. 27
C.F.R. § 478.23.
II. Discussion
The Attorney General of the United States may, after
notice and opportunity for hearing, revoke a dealer’s
federal firearms license if the dealer has willfully
violated any provision of the GCA or any rule or regula-
tion prescribed by the Attorney General thereunder. 18
U.S.C. § 923(e). The dealer may file suit in the district2
court for “de novo judicial review” of the revocation
decision. Id. at § 923(f)(3). In a proceeding brought under
§ 923(f)(3), the district court may consider any evidence
submitted by the parties to the proceeding whether or
not such evidence was considered at the administrative
hearing. The district court is afforded discretion to
receive evidence additional to that contained in the ad-
ministrative record “when some good reason to do so
either appears in the administrative record or is presented

-- 10 of 18 --

No. 10-2927 11
by the party petitioning for judicial review.” Stein’s Inc.
v. Blumenthal, 649 F.2d 463, 466 (7th Cir. 1980) (affirming
the district court’s summary disposition of the case based
on the administrative record without taking additional
evidence). Where the district court exercises its discre-
tion to admit additional evidence and no substantial
credibility questions are presented, it may receive the
evidence in the form of affidavits rather than testimony.
Id. at 466 n.5.
[T]he district court, consistent with its obligation to
review the matter de novo, may accord the Secretary’s
findings such weight as it believes they deserve in
light of the evidence in the administrative record and
the evidence, if any, the district court receives to
supplement that record. In this sense, the Secretary’s
decision may be upheld when the trial court con-
cludes in its own judgment that the evidence sup-
porting the decision is “substantial.”
Once the district court has reviewed the decision of
the Secretary, the role of the appellate court is limited.
It may review as in any other action the judgment of
the district court to insure that it correctly applied
the law including the appropriate scope of review.
The district court’s findings as to the facts, however,
may not be upset unless clearly erroneous.
Id. at 467.
In this case, Shawano does not dispute the violations
charged in Counts 2, 4, and 5. With respect to Count 1, the
district court accepted Shawano’s explanation that the
fifty-four transactions did not appear on the acquisition

-- 11 of 18 --

12 No. 10-2927
and disposition record because of a computer software
error. Nonetheless, the district court found, and it is
undisputed, that Shawano failed to print the acquisition
and disposition record every six months as required.
With respect to Count 3 relating to straw purchases, the
district court accepted at face value the affidavits sub-
mitted by the purchasers and presumed that they
bought the firearms for themselves. Nonetheless, the
district court concluded that Shawano had reason to
believe that the purchaser was purchasing the firearm
for another person because the purchaser had the same
last name and/or address as a person whose application
to purchase the firearm was denied either that day or
the previous day. There is no credibility question to
warrant an evidentiary hearing, and the district court
did not abuse its discretion in declining to conduct one.
See Stein’s, 649 F.2d at 466 n.5, 467. The question before
the district court was, “as in most actions brought
pursuant to 18 U.S.C. § 923(f),” whether Shawano’s vio-
lations were willful. Id. at 467.
A violation is willful under 18 U.S.C. § 923(e) if
ATF shows that the firearms dealer “ ‘knew of [its] legal
obligation and purposefully disregarded or was plainly
indifferent to the recordkeeping requirements.’ ” Article II
Gun Shop, Inc. v. Gonzales, 441 F.3d 492, 497 (7th Cir. 2006),
quoting Stein’s, 649 F.2d at 467. To act willfully, a fire-
arms dealer is not required to act “with a ‘bad purpose
or evil motive.’ ” Article II, 441 F.3d at 497, quoting Stein’s,
649 F.2d at 467. This is the standard applied by the
district court; nonetheless, Shawano disputes the dis-
trict court’s interpretation of willful.

-- 12 of 18 --

No. 10-2927 13
The next sentence in the Senate Report, which Shawano does 3
not quote, states: “However, the Committee was receptive to
concerns expressed by the Administration that requiring a
(continued...)
Shawano argues that under the Firearms Owners’
Protection Act (FOPA), Pub. L. No. 99-308, 100 Stat. 449
(1986), which added “willfully” to 18 U.S.C. § 923(e), ATF
must show more than that a licensee acted with
disregard or indifference to the law and that a licensee’s
acts were more than inadvertent errors or technical mis-
takes. Shawano suggests that “willful” requires an in-
tentional act. Shawano relies on the Senate Report
relating to the inclusion of “willfully” in § 923(e) and
contends that the Senate Report’s reference to “current
caselaw” means the definition of willfulness set out in
Rich v. United States, 383 F. Supp. 797 (S.D. Ohio 1974).
See S. Rep. No. 98-583, at 14 (1984). The court in Rich
adopted a “purposeful, intentional conduct” definition
of willful. Shawano also relies on Bryan v. United States,
524 U.S. 184 (1998), which involved a criminal charge
under 18 U.S.C. § 924(a)(1) for dealing in firearms with-
out a federal firearms license. Shawano argues that
FOPA’s addition of a willfulness element to the criminal
penalties provision of the GCA, 18 U.S.C. § 924(a)(1), which
according to the Senate Report was added “to avoid
prosecutions in cases where, for instance, a licensee
carelessly committed a technical recordkeeping viola-
tion or other minor, inadvertent infraction,” supports
a specific intent requirement under § 923(e). See
S. Rep. No. 98-583, at 20. Shawano urges courts to3

-- 13 of 18 --

14 No. 10-2927
(...continued) 3
‘willful’ state of mind in some instances could pose legitimate
law enforcement problems.” S. Rep. No. 98-583, at 14 (1984).
Notably, after the paragraph governing judicial review of 4
a decision to revoke a license, 18 U.S.C. § 923(f)(3), paragraph (4)
states: “If criminal proceedings are instituted against a
licensee . . . .” This language highlights the decidedly civil
nature of § 923(f)(3).
apply the single meaning rule such that “willful” has
the same definition under the civil and criminal pro-
visions of the GCA.4
Shawano’s argument bucks this Court’s holding in
Article II that the appropriate standard for willfulness
for purposes of revoking a firearms dealer’s license
is purposeful disregard of, or plain indifference to, a
known legal obligation. 441 F.3d at 497. Other circuits
similarly apply this standard. See generally Armalite, Inc.
v. Lambert, 544 F.3d 644, 647 (6th Cir. 2008); On Target
Sporting Goods, Inc. v. Attorney General, 472 F.3d 572, 575
(8th Cir. 2007); RSM, Inc. v. Herbert, 466 F.3d 316, 321-22
(4th Cir. 2006); Willingham Sports, Inc. v. Bureau of Alcohol,
Tobacco, Firearms and Explosives, 415 F.3d 1274, 1277
(11th Cir. 2005); Perry v. Department of the Treasury, 637
F.2d 1332, 1336 (9th Cir. 1981). Shawano’s assertion that
it is not asking this Court to overrule Article II is puz-
zling. Not only did this Court define “willfulness” for
purposes of § 923(e)—after enactment of FOPA and the
Supreme Court’s decision in Bryan—but the Court
also rejected the Bryan argument pressed by Shawano.
Article II, 441 F.3d at 487-98.

-- 14 of 18 --

No. 10-2927 15
In Bryan, the defendant had been convicted of con-
spiring to sell firearms without a license and
engaging in the sale of firearms without a license, in
violation of the provisions of the Gun Control Act
that contained a willfulness requirement. See 18
U.S.C. §§ 922(a)(1) and 924. The defendant claimed
that he had no knowledge of the Act’s requirements,
so that his violations could not be willful. The Court
held that the defendant’s bad purpose was sufficient
to satisfy the willfulness requirement under the facts
of that case, where the defendant had used straw
purchases, filed off guns’ serial numbers, and sold
guns on the black market. Bryan, 524 U.S. at 189, 194-
96, 118 S. Ct. 1939.
The Bryan Court recognized that this Court in
Stein’s “stated that willfulness in § 923(d)(1) is satis-
fied by a disregard of a known legal obligation.” Id.
at 196-97, 118 S. Ct. 1939. The Court found that while
cases like Stein’s “support the notion that disregard
of a known legal obligation is sufficient to establish
a willful violation, they in no way stand for the pro-
position that it is required.” Id. at 197-98, 118 S. Ct.
1939. The Bryan Court did not hold that a showing
of “bad purpose” is required before ATF can revoke
the license of a gun dealer who violates the Act
despite knowledge of its requirements. Id. Rather,
the Court simply held that a bad purpose may be
sufficient to demonstrate purposeful disregard for
or plain indifference to the law, where there is no
evidence a party was aware of the requirements of

-- 15 of 18 --

16 No. 10-2927
the law. In this case, it is clear that [the firearms
dealer] was aware of its obligations under the Act.
Article II, 441 F.3d at 487-98.
Finally, we reject Shawano’s argument that its viola-
tions were not willful based upon the infrequency of the
errors in comparison to the number of transactions con-
ducted, the fact that a computer glitch prevented it
from showing at the time of the compliance inspection
the disposition of fifty-four firearms, and the showing
that the alleged straw purchases were proper transfers.
There is no de minimis exception to § 923(e). See Article II,
441 F.3d at 498 (“The revocation provision applies re-
gardless of whether a firearms dealer’s failure to com-
ply with the Act actually results in illegal possession
or usage of a firearm or an inability to track a firearm
that has been sold.”). Moreover, any computer malfunc-
tion during the inspection does not explain Shawano’s
failure to print the acquisition and disposition report
every six months as required. Similarly, whether certain
purchases were straw purchases is beside the point:
Shawano had reason to believe, at the time the second
purchaser applied to purchase the firearm, that the indi-
vidual was not the intended purchaser.
Shawano also points to Inspector Mleczko’s testimony
at the administrative hearing that he saw no indication
of willful or intentional disregard of ATF regulations by
Mr. Backes or other employees at Shawano. Mr. Backes
disputes that he was given regulatory material when
he applied for the license. The record is clear that it was
Mr. Backes who applied for the license in 1998, partici-

-- 16 of 18 --

No. 10-2927 17
pated in the compliance inspections in 1999, 2004, and
2007, and attended the warning conference in 2005.
After each inspection, he acknowledged the corrective
action that needed to be taken. Mr. Backes testified at
the administrative hearing and submitted an affidavit
for the district court’s consideration. His affidavit estab-
lishes that he hired counsel after receiving the 2007
Notice of Revocation and that, since that time, he has
imposed many workplace changes to ensure compliance
with federal firearms laws. These measures come too
late. Despite being given multiple opportunities to take
corrective action, Shawano continued to repeat its viola-
tions. The suggestion in its brief and in Mr. Backes’s
affidavit that, basically, Shawano gets the message loud
and clear and will do better if given another chance is
not an argument that reaches the merits of the case. ATF
has the authority to revoke Shawano’s federal firearms
license, and its decision to do so in this case is fully sup-
ported, as a matter of law, by the record submitted to
the district court.
We make one final comment regarding Shawano’s
evidentiary hearing argument. Shawano submitted ma-
terials to the district court that were not submitted to
the Hearing Officer, and the district court accepted
those materials. Shawano now argues that it was denied
requested discovery—specifically, other instances where
ATF has revoked firearms dealers’ licenses to enable a
comparative analysis of the history of violations in each
instance—and that, had a hearing been held, it could
have asked witnesses about this information. Supporting
its comparative analysis argument, Shawano contends

-- 17 of 18 --

18 No. 10-2927
that its score for correct completion of ATF Forms 4473
was 99.2 percent and that, comparatively speaking, such
a high percentage does not warrant revocation. Shawano
further argues that the district court was required to
evaluate Mr. Backes’s credibility in person before
deciding that he purposely disregarded or was plainly
indifferent to federal rules and regulations.
The district court entered a scheduling and discovery
order on August 7, 2009, setting the discovery deadline
for November 6, 2009. Shawano never sought relief in
the district court relating to its discovery request for
comparable cases that ATF allegedly refused to provide.
It cannot now argue that the district court abused its
discretion in failing to conduct an evidentiary hearing
to consider such evidence when it failed to pursue
such evidence during discovery. The district court
accepted Mr. Backes’s affidavit and did not abuse its
discretion by considering the affidavit rather than testi-
mony. See Stein’s, 469 F.2d at 466 n.5.
III. Conclusion
The district court properly concluded, as a matter of
law and without an evidentiary hearing, that Shawano
willfully violated the GCA and that ATF was authorized
to revoke Shawano’s federal firearms license. The district
court’s judgment affirming ATF’s final administrative
decision is AFFIRMED.
6-7-11

-- 18 of 18 --