Speaking of Straw Purchases...

[Frank Ettin]

Originally Posted by MLeake

...Without meaning to attack you, I would point out that in various studies, children figure out what they think adults want to hear, when questions are asked in the way you describe. These studies have been used to overturn convictions for child molestation, etc, when the defense has been able to show that the child may have simply said what they thought the interviewer wanted to hear...

True, but I think if you look into those cases, the interviewers were usually investigators or psychologists with agendas -- and not the lawyers. And there have been a number of interesting cases in which psychologists who claimed to have "awakened" in adults so called repressed memories of having been molested as children were found rather to have effectively created false memories.

And as far as trying to coach an adult witness how to say something, besides the ethical issues, as a practical matter it's a lousy idea. A witness who is trying to tell his story in a way that pleases one side or the other, rather than in his own way, is very likely to get tied in knots in cross examination.

All interesting stuff, but getting rather far afield. So let's remember Al's injunction to stay on track.

[Frank Ettin]

Originally Posted by Eghad

...I know all prosecutors are not created equal but I have the feeling that the best ones dont ask questions they don't know the answers to already...

Actually, any good lawyer will not ask a witness a question he doesn't already know the answer to.

Originally Posted by Eghad

...If you did script a response for your client and you as the lawyer knew it was not a truthful answer and the client was found to commit perjury by doing this would you as the lawyer face any sanctions from the court?

You bet, as well as risking disbarment.

[Aguila Blanca]

Originally Posted by MLeake

I'm not sure markj was talking about perjury, per se, as much as coaching about how to word things.

He was reporting what his cousins told him. And what his cousins told him did not amount to "coaching" a witness on how to say something, it amounted to perjury.

Originally Posted by markj

My cousins are cops, I ran it by them and if the buyer while on the stand said he intended to gift the gun, no charges could be brought. It is all in the words used. If he said Ibought it for him cause he couldnt then he is in trouble. So did anyone ask the real person or do we judge folks on heresay alone?

First off, since the buyer was an integral part of the transaction, he was the first person in the transaction to commit a felony. So if he was on the stand, it would probably be as a defendant, not as a witness. And, unless he actually DID buy the gun with intent to give it as a gift, saying under oath that he intended to do so IS perjury. But if NC Buyer is a defendant, his lawyer has no business putting him on the stand, because a defendant is not required to testify in his defense. If he does so, and lies in the process, (a) he has committed another crime, and (b) the lie doesn't make the original act any less a crime even if the jury buys the lie and he gets off.

Remember, the original question here wasn't "Will anyone get caught?" The question was, "Was this a straw purchase?" All the perjury in the world can't alter the fact that, unless NC Buyer actually bought the gun as a gift, using his own money with no reimbursement, it WAS a straw purchase.

[Spats McGee]

It seems to me that there are actually about 3 questions being debated here:
1) Was this a straw purchase?
2) Can the charge be proven?
3) Is the law on straw purchases right or wrong?

These are three separate questions, not all of which can be answered based on the information that we have.

On #1: Based on the OP's description, and IMO, yes, it was a straw purchase. NY relative saw the gun, couldn't buy it, and took his relative there to buy it for him. While the NC relative "kept possession of the pistol in NC until [the NY relative] got back home and filed the paperwork]," it does not appear that the NC relative ever intended to keep the firearm for himself, or to make a gift of it. The intent all along (as far as I can tell) was to wait until NY guy got home, then ship the pistol to him. In that case, the NC relative was never the "actual buyer" of the pistol, and had to lie on the 4473 to accomplish the purchase.

Originally Posted by l98ster

A friend and I were talking the other day (we both live in NY). He has a relative in North Carolina. He was visiting his relative when he walked into a gunstore in NC, and found a pistol that he wanted. The store told him that since he was not a NC resident, they could not sell him the pistol (he has a NY pistol permit).

A day later, he brought his relative into the gunstore to buy that pistol. His relative kept posession of the pistol in NC until he got back home and filed the appropriate paperwork to legally take possesion of it in NY. When his NY pistol permit was amended and the pistol from NC was put on it, he had his relative send him the pistol through the proper FFL channels.

Is this a straw purchase??

On #2: The question of whether a straw purchase can be proven, against either the NC or the NY relative is the third question. This is where questions of intent, bank deposits, and the like come into play. Intent may seem fairly ephemeral and difficult to prove, prosecutors do it every day. The first witness against both of the above-named relatives may well be the FFL who sold NC guy the gun. It's not too hard to imagine that a gun shop owner, faced with losing his FFL & his livelihood (as a consequence) would be glad to both hand over the records and identify both defendants in court. (No slight to the owner here. He's got a family to feed, just like I do.) Once the prosecutor subpoenas bank records, it's not too hard to narrow down the search for transfers and deposits. If they're there, bingo, you've got intent. Even if they're not there, the fact that the NY relative tried to purchase the gun, was declined, and then showed up a day later with someone in tow who did in fact buy the gun . . . that points to intent, and it's not that hard to convince a jury that the pistol was never intended to be a gift. The jury is not required to believe the defendants' stories.

On #3: Is the law right or wrong? A subject of some debate, no doubt. "Whether it should be legal for Person A to buy a firearm for Person B, known not to be a prohibited person, when the firearm is not a gift," is an analytically distinct question from "whether that same transaction is a straw purchase under the law as it now stands."

[Eghad]

I dont agree with the law. As a law abiding citizen I should be able to walk into any gun shop in the United States undergo an instant background check and purchase a firearm.

the law is what it is when it comes to a straw purchase.

It was also stated in the ATF Regulations guide that it was immaterial if the person was not a prohibited person and lived in the same state. You could not be a proxy for him in a firearms purchase.

This situation might be a little harder to prove if no cash changed hands. However you have still violated the law and left you, the person you purchased the gun for at risk of a felony. Which could strip you fo your right to own firearms.

A gift is something given without compensation. If you accepted compensation from a eligible person to buy a firearm for them as a proxy it is a straw purchase.

Which makes me ask a question. Can a gun shop owner accept a deposit or earnest money against a firearm from another person as long as it remains in the shops possesion and no sale has been completed until the actual purchaser comes in to take possesion of the firearm.

or

If I was NY Guy in the original situation could I have put a deposit on the gun. Paid the balance upon my return to NY and the gun is shipped to FFL Holder from FFL Holder where the sale is completed and the fiream is transferred to NY Guy as the actual purchaser.

[Spats McGee]

Originally Posted by Eghad

Can a gun shop owner accept a deposit or earnest money against a firearm from another person as long as it remains in the shops possesion and no sale has been completed until the actual purchaser comes in to take possesion of the firearm.

Eghad, let me see if I understand your question correctly. Are you asking if Person A can put down a deposit or earnest money on a firearm for Person B, who would then come in, pay the remainder and complete the sale?

[Eghad]

Yes

[Spats McGee]

Just off the top of my head, I don't know if they could. I would be very surprised if they would, though. Even IF that's permissible, it seems to cut awfully close to the straw purchase line, and it would make me very nervous, if I were an FFL.

[mavracer]

Can a gun shop owner accept a deposit or earnest money against a firearm from another person as long as it remains in the shops possesion and no sale has been completed until the actual purchaser comes in to take possesion of the firearm.

Yes as long as the person filling out the 4473 form is the actual purchaser.

[markj]

I'm not sure markj was talking about perjury, per se, as much as coaching about how to word things.

Defense and prosecuting attorneys both do that.

Defense and prosecuting attorneys also coach their witnesses as far as prepping them for the types of questions likely to be asked in cross-examination.

Yes I was speaking of this, lawyers will help a person understand what is going on as far as doing a mock court situation where an question is asked and the lawyer explains how the client should answer it. No lawyer will admit to it as it opens up a new can.... Having 3 friends I went to school with as lawyers I kinda understand them, it is all in the win. A lawyer wants to win his cases, one that doesnt gets no clients, a lawyer with a high win count is in demand.

Heck Isaw a DUI person hand over 3 gs to a lawyer his 6th offense, he didnt spend one day in jail. Lawyer told him a price, guy asked what about cash, price was lowered and cash handed over. Lawyer did his job finding any tiny loophole to get client off. Some paper work wasnt done right so case dismissed. Its their job to d othis for the client, right or wrong it is what it is.

Now that the lawyers on this site have convicted this guy, what would his sentance be? even tho gun was transferred by an FFL and the paperwork submitted.

We can talk about this until we are blue, however did the guy get arrested? was he held in jail;? no all we have is one guy posting a buy his friend TOLD him about.

I got some good stories too.


Least no one wants to dive for cover and commence to shooting at cops like that other thread.....

[Eghad]

the point wasn't if anybody went to jail this time.

The point was that it was a straw purchase irregardless of what the outcome at trial would have been.

The big point is don't be lazy and take shortcuts that could take away your rights to own a firearm and possibly send you to prison or if you had won the case you would have had to shell out big bucks your family needs to a lawyer because you did something stupid.

If its wrong say it is wrong.

Like the ATF in this Fast and Furious stuff saying they broke the law because they had good intentions.

[Aguila Blanca]

Originally Posted by markj

Heck Isaw a DUI person hand over 3 gs to a lawyer his 6th offense, he didnt spend one day in jail. Lawyer told him a price, guy asked what about cash, price was lowered and cash handed over. Lawyer did his job finding any tiny loophole to get client off. Some paper work wasnt done right so case dismissed. Its their job to d othis for the client, right or wrong it is what it is.

You are comparing apples to oranges.

It is a lawyer's duty to his clients to examine the facts and the relevant law, and to find any flaws in the opposition's case. That's not only legal and ethical, I suspect that for any attorney to NOT do that would be considered professional negligence.

That's a VERY different thing from "coaching" a witness to lie on the witness stand. The latter is being an accessory to the crime of perjury, and is both unethical and illegal. An attorney who coaches witnesses to lie under oath can (and should) be disbarred.

[Frank Ettin]

Originally Posted by markj

...where an question is asked and the lawyer explains how the client should answer it....

This is a very serious charge. Preparing witness by telling him how to answer a question is a violation of every Code of Professional Responsibility I'm familiar with. It is cause for a State Bar to bring a lawyer up on charges before the Ethics Committee or Ethics Court or similar body (different States have different names). It would be a basis to take disciplinary action against a lawyer's license -- including suspension or disbarment.

If you have actual evidence of a lawyer doing such a thing, you should bring it to the attention of his Bar Association. However, it appears that you are merely speculating, without actual evidence but because of your obvious animus for lawyers, that this practice is common. If so, you should stop making wild accusation you can not prove.

Originally Posted by markj

...A lawyer wants to win his cases, one that doesnt gets no clients,...

Yes, a lawyer likes to be successful. More importantly, his client wants him to be successful, because losing can be devastating for the client -- costing the client money, property or freedom.

Lawyers have an absolute ethical duty of loyalty to their clients and are required to zealously advocate, within the applicable rules, in the client's interest. If you were in legal trouble, you would expect nothing less from your lawyer.

But no competent lawyer will risk his career by violating the rules and his professional responsibilities. Discipline by the Bar can be a career ending event.

Originally Posted by markj

...Having 3 friends I went to school with as lawyers I kinda understand them,...

Either they aren't the type of lawyers I'd ever consider hiring, or you don't understand them as well as you think you do.

[vranasaurus]

Prepping witnesses isn't about telling people what to say. That would be illegal and unethical.

People will respond to questions how they respond no matter what you tell them. For most people being on a witness stand is stressful. When under stress people forget what you told them to say anyway.

I have learned over the last few years that you need to figure out how someone will answer the question and figure out any follow ups needed to get them to say what you are looking for. When working on cases, whether it be for court martial or administrative board (I am a paralegal NCO in the Army and soon to be law school student) I would never tell a witness what to say.

The first thing I tell any witness is that we just want the truth. Whether it helps or hurts our case just the truth.

Next I go through the questions, write down their answers and determine followups.

If you need to tell a witness what to say you are either a really bad lawyer or a really unethical lawyer.

[markj]

because of your obvious animus for lawyers

Not me, I like everyone. The job? isnt for me or I woulda done that instead of what I do now.

So you are sayiong a lawyer wont have a mock type of situation where he quizzes the witness like in an actual court session to give that person a "feel" for it? I did see this when the daughter of my girl friend was raped. He (lawyer) put her in a chair and asked her some very disturbing questions, but the defense did just that, tried to make her look like a loose gal letting the guy in when he broke in and did what he did.

So you are saying this isnt valid?

I dont take shortcuts, I see what I want and Ibuy it following the law. It is easy to d owhere I live. I dont have to seek permission to own it from my govt as the guy has to do in this situation.

No remove the spur from under yer saddle. No one was harmed or sent to jail altho you seem to want to put someone there. Are you the DA for CB? He is just as rabid, would have his own mom thrown in jail if she spit on the sidewalk. I got no time for them sorta folks.....

[markj]

You are comparing apples to oranges.

No, I am comparing right from wrong, the dui shoulda gone to prison for 6 duis. I would feel real poorly if he got drunk and killed one of my loved ones.

My point is the laws are messed up. Shouldnt have to ask permission to own a gun, laws should be uniform not all different like they are here.

Either they aren't the type of lawyers I'd ever consider hiring, or you don't understand them as well as you think you do.

Um tax lawyer is one, lawyer for a city in WA is the other. Both fine people that serve their community well. I also have a personal lawyer handles my farm struff etc, he is also a good person I trust.

Other lawyers? I just dont trust em at all, like anyone else I dont know.

[Spats McGee]

I think that what some of the others here are trying to point out is that there's a big difference between "prepping witnesses," and "coaching witnesses." It's one thing to go through someone's testimony and prepare them for questions that may be asked by the other side. It's quite another to tell them what their answers should be.

[Al Norris]

Originally Posted by markj

No one was harmed or sent to jail altho you seem to want to put someone there.

You've made that allegation at least twice now.

No one, I repeat, No One has said they want to put anyone in jail.

This whole discussion is on Straw Purchases and what makes a such a purchase.

The fact that many have stated that given only the details in the OP, it was a Straw Purchase, seems to have escaped you. You have taken this all to mean that those of us that have penned such an opinion, want to see the OP in jail.

Wrong.

We are stating our opinions on the OP. Some of these opinions are from lawyers who are giving us their opinion as to the apparent legality of the OP.

This is quite a stretch to saying that they are advocating that a particular person needs to be arrested, tried and convicted of a straw purchase.

Get over the persecution complex and quit trying to put things in the mouths of others that were never said. Whether or not you think this was a straw purchase, is no longer the point. You are treading on very thin ground, with your personal attacks and innuendos.

[markj]

there's a big difference between "prepping witnesses," and "coaching witnesses."

Lets just call it practise? Some on here are very nice, a few are like a pitbull, wont let up until I say you are right and I am wrong but I just wont do that. i been around a long time, been in jail, was arrested etc I was young and it wasnt bad stuff.

What I am trying to say is Iaint no spring chicken and never let teh rooster chase me.

What i see here is a wrongful law needs to be changed and I hope them folks can get it done so this wont have to happen.

[Aguila Blanca]

Originally Posted by markj

So you are sayiong a lawyer wont have a mock type of situation where he quizzes the witness like in an actual court session to give that person a "feel" for it? I did see this when the daughter of my girl friend was raped. He (lawyer) put her in a chair and asked her some very disturbing questions, but the defense did just that, tried to make her look like a loose gal letting the guy in when he broke in and did what he did.

So you are saying this isnt valid?

Of course it's valid. "Prepping" a witness is standard practice, especially if the witness is someone who hasn't been a witness in a court proceeding before. But running a potential witness through a series of mock questions to provide some insight into what they might expect from the other side is NOT the same as telling the witness what to say.

I have been a witness more times than I can easily remember -- both in cases involving me, and as an expert witness. I have been "prepped" numerous times. At no time did any attorney tell me what answer to give in response to an anticipated question. The two key points that pretty much all the prep sessions had in common were:

1. Tell the truth
2. Answer the questions as succinctly as you can, and never volunteer information

I already knew that. One reason attorneys like to have me as an expert witness is that I'm very good at giving the other side one-word answers. "Yes." "No." It's borderline hilarious to see the look on an attorney's face when he's spent five minutes setting you up with a convoluted question that he thinks is going to make his case, and the answer is just, "No." They just don't know where to go from there.

But "coaching" me as to how to answer a question, as in telling me what to say? Nope.

Originally Posted by markj

What i see here is a wrongful law needs to be changed and I hope them folks can get it done so this wont have to happen.

I don't believe anyone who has posted in this thread said the "straw purchase" law was a good law. The fact that NY Relative should have been able to do what he did is irrelevant. What IS relevant is that the OP asked if the transaction was a straw purchase. Based on the facts available, it appears almost certain that it was, and the fact that it was a straw purchase because of an unfortunate law does not make it any less illegal.

[markj]

I don't believe anyone who has posted in this thread said the "straw purchase" law was a good law

No, I meant the hoops the guy has t ogo thru to get a gun, those laws. Having to ask permission from the state (Now that sounds communist to me) to be able to own the thing. Those laws are what Iam speaking of, the straw purchase law is a good thing if it is indeed a straw buy. I can say one shop in Bellevue was shut down due to the owner selling to prohibitive people. I am all for keepiong guns out of the wrong hands, but these two guys were not prohibitive in that respect.

I would like to see the laws be level in all states not these individual laws for each state, makes it confusing.

Did I mention the director of IT here is also a student at chreighton for his law degree? Seems Iknow a lot of lawyers..... most are great folks.

[Eghad]

I never asked permission from the state to buy a firearm. Made sure I had the money to buy it went down to the gunshop and pointed in the case and tell them I want that one. The nice person gives me a 4473 to fill out, I hand her my ID to verify it is me. Five minutes later after getting the ok from the background check she hands me back my ID and takes some cash from me completes the sale and I walk out the door with my new firearm. At no point during that period did I have to ask the U.S. Government or the State of Texas if I could buy the firearm.

To the best of my recollection did I not have to jump through any hoops....

However, your mileage may vary by state.....

[Frank Ettin]

Originally Posted by Eghad

...To the best of my recollection did I not have to jump through any hoops....

We have a few hoops here in California. But they're pretty manageable, especially when compared with some other States. I can't say I like them, but they haven't kept me from acquiring plenty of guns. I can't think of anything I'd like to do with a gun that I don't have a gun I could do it with.

And even if the rules are a nuisance, they are what they are. One can understand them and accomplish his purposes in accordance with them. If he tries to do things in some other way, he risks adding complications to his life that he might not enjoy. I can't really see any good reason to risk getting tied up in the legal system, especially when there are fairly simple ways to avoid it.

In any case, our system gives us ways to try to change those rules if we don't like them. But in the meantime, one is well advised to understand and follow those rules.

[Eghad]

Yup California law seems to be based on moving the goals every so often. I see you guys in California are getting organized and are starting to take on the anti gun forces. Keep up the good fight and one day you guys will have what you want.

Is there a spot where a guy could make a donation for the legal funds in California. I am not a rich man but I could kick in a few bucks to keep the fight going.

[Frank Ettin]

Originally Posted by Eghad

...Is there a spot where a guy could make a donation for the legal funds in California. I am not a rich man but I could kick in a few bucks to keep the fight going....

That's very gracious of you. Any help would be appreciated. We have an uphill battle.

The California Rifle and Pistol Association and the Calguns Foundation are doing excellent work here. Either one merits, and would appreciate, any support you could give.

On behalf of the gun owners of California, thank you for thinking of us.