Jan. 6—A federal jury is expected to decide next week whether former Salem police Capt. Michael Wagner cheated on his taxes by not reporting income from his internet sales of 36 assault rifles in the aftermath of the 2012 Sandy Hook school massacre.
Prosecutors say Wagner used his police discount at New Hampshire gun maker Sig Sauer to buy the weapons in late 2012 and 2013, shortly after 20 children and six adults were slain at the Newtown, Connecticut, elementary school.
Prosecutors have said Wagner took advantage of a price boost predicated on hysteria that the federal government would outlaw assault rifles in the wake of the massacre.
The trial started Wednesday in U.S. District Court in Concord with lawyers making opening statements and one witness, Salem police officer Sean Marino, taking the stand.
No testimony was heard on Thursday, and at day’s end Judge Landya McCafferty held a videoconference with lawyers and announced she will likely take over the case. The judge who has heard the case from the beginning, Paul Barbadoro, has COVID-19, she said.
The trial is expected to resume on Monday.
Federal officials brought the tax evasion charges against Wagner more than two years ago. In filings, federal prosecutors say Wagner lied on the federal forms that gun buyers must complete before purchasing a firearm. One of the questions asks if the purchaser will be the actual owner of the gun.
Wagner sold the guns through websites such as gunbroker.com. He was not a federally licensed gun dealer, but his defense lawyers say he used a friend who had a license, Gary Fisher of On-Target Guns, to perform instant background checks of the internet buyers.
According to filings, prosecutors could not bring charges against Wagner for illegal arms dealing because of a five-year statute of limitations. But tax laws have a longer statute of limitations.
In pretrial filings, defense attorneys have asked a judge to keep the trial to its essence — a tax evasion case — and limit testimony and evidence about Wagner’s purchases and resales of guns.
“The government wants to be able to portray Mr. Wagner’s character in a negative light and turn this case into a referendum on federal firearms licensure laws instead of the single count tax charge,” writes defense attorney Mark Tyler Knights. “It should not be permitted to do so.”
But prosecutors have said the tax case has to be put in its context: that Wagner falsely stated on the ATF Form 4473 that the guns were for himself. They also want to show that when Sig Sauer cut off his discount, he had a Salem police officer pick up a gun for him, essentially turning his subordinate into an illegal purchaser.
“These facts are critical to complete the picture of the tax crime charged here,” wrote prosecutor William Brady.
Prosecutors also have gone to lengths, they say, to make the trial fair for Wagner:
They will not use the term “assault rifle” to refer to the SIG 716, SIG M400 and SIG5 16 weapons that Wagner dealt in. However, on its own website Sig Sauer refers to the guns as AR-10s (SIG 716) and AR-15s (SIG M400).
The prosecutors will not use the name Sandy Hook during trial. They will refer to the shooting in language such as “an event in the later part of 2012 that led to an increased demand for these types of rifles.”
The jury won’t hear that Wagner put a gun to a Salem police officer’s head in 2010, that he purchased and sold a Salem police cruiser for profit in 2016 or that he removed internal documents from the police department once an investigation into the department began. But prosecutors hope to use such evidence to impeach Wagner’s credibility if he takes the stand.
Defense filings list Wagner and his wife, Jennifer, as potential witnesses. Other potential witnesses are former Police Chief Paul Donovan and Deputy Police Chief Robert Morin.
The trial is the final remnant of an explosive investigation into wrongdoing at the Salem Police Department in 2018.
Issues uncovered in a town-ordered audit of the department included insubordination to town hall, discouraging citizen complaints, intimidation of civilians, and racist and sexist posts in social media.
The audit launched an investigation by the New Hampshire Attorney General, but after more than two years, state authorities brought only a single, minor charge — a traffic violation against a police sergeant.
The investigation prompted departures of top brass from the department, including Donovan, Morin and Wagner.
The case is being prosecuted by the office of Rachael Rollins, the top federal prosecutor in Massachusetts. Authorities often go out of state when prosecutions involve police officers, who work closely with local prosecutors.