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Old October 15, 2013, 02:01 PM   #1
Frank Ettin
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SCOTUS Has Taken a Straw Purchase Case

So A asks B to buy a gun for him and promises to give B the money. B buys the gun and claims to be the actual buyer on the 4473. He then transfers the gun to A at another FFL.

ATF's position has been that such is an illegal straw purchase. In the case of Abramski v. United States, the Fourth Circuit agreed. The Supreme Court will have the final say.

The Fourth Circuit opinion affirming Mr. Abramski's conviction may be found here.

While Mr. Abramski also raised some Fourth Amendment issues in the Fourth Circuit, it looks like he is limiting his appeal to the Supreme Court to the straw purchase issue. Here's his petition for a writ of certiorari.
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Old October 15, 2013, 03:11 PM   #2
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He then transfers the gun to A at another FFL.
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Old October 15, 2013, 03:28 PM   #3
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I have lost track of the number of times that I've see folks post something to the effect of "it's only a straw purchase if you buy it for a prohibited person." But I note this from the Fourth's decision:
Quote:
First, he argues that the court erred in denying his motion to dismiss the indictment because his conduct was beyond the purview of §§ 922(a)(6) and 924(a)(1)(A), in that both he and his uncle were legally entitled to purchase and own the Glock 19 handgun.
The Fourth Circuit doesn't buy that, though.
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Old October 15, 2013, 03:37 PM   #4
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The Fourth "Circus" Is twisting the intent…
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Old October 15, 2013, 03:57 PM   #5
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SCOTUS Has Taken a Straw Purchase Case

Quote:
Originally Posted by TATER View Post
The Fourth "Circus" Is twisting the intent…
And your evidence of Congressional intent is?
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Old October 15, 2013, 04:00 PM   #6
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The language on the 4473 seems clear and unambiguous to me. This is a document sworn to by the purchaser. I don't understand the argument plaintiff is making - that the fact that he is buying this intentionally to sell to a third party is irrelevant, because the ATF licensee (at the time of the initial purchase) has absolutely no way of ascertaining whether that third party is a prohibited person or not.

Clearly the plaintiff lied on the Form 4473. Is this not also perjury?
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Old October 15, 2013, 04:44 PM   #7
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And your evidence of Congressional intent is?
tou-che my friend, nothing is obvious once ink hits paper. Intent "is" usually thrown in the garbage.
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Old October 15, 2013, 04:44 PM   #8
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It's not so clear. See the example for Question 11a on a 4473 form. The example clearly has Mr Jones buying for Mr Smith, using Mr Smith's money.

If Mr Abramski? used his Uncle's money, then it's a straw purchase. If he used his own money, and later sold it to his Uncle and money changed hands both times, it's not necessarily "obviously" a straw purchase.

As the ATF saw fit not to prosecute Mark Kelly when he tried to purchase an AR-15 for a use other than shooting it, they may obviously recognize that there is more than one legitimate use for a firearm as property.

Resale of your firearm after you purchased it via a 4473 form transaction is not.. prima facie a straw purchase. At what point is it not? If I walk out the door with my new Dan Wesson $5K 1911, and drop that sucker on the ground marring the finish, how long do I have to wait to sell the damaged one and use those funds to buy a new one to avoid being prosecuted for a straw purchase?

If it is not a significant part of my business, and just as a hobby, I believe I'm within my rights to buy a firearm I have easier access and pricing to, and then speculate like a mad oil tycoon that I can get more for it after the fact.

The fact that my third cousin twice removed has me over a family barrel and drives a harder bargain so all I get back is my cost, doesn't mean I didn't buy it for my alternative, but still valid use as an investment.

Of course, again, this all hinges on who's money was used. If it wasn't my money, I expect to be well and truly screwed.
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Old October 15, 2013, 05:29 PM   #9
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Resale of your firearm after you purchased it via a 4473 form transaction is not.. prima facie a straw purchase. At what point is it not?
Essentially, if I'm using someone else's money to buy the gun, regardless of their legal status, it's a straw purchase. If I use my own money, then sell it to them later, it's generally not.

Part of the original problem was that Mr. Abramski's uncle had written a check to him before Mr. Abramski purchased the gun. Therefore, the whole thing gets a little murky.
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Old October 15, 2013, 05:56 PM   #10
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Quote:
Originally Posted by csmsss
The language on the 4473 seems clear and unambiguous to me. This is a document sworn to by the purchaser. I don't understand the argument plaintiff is making - that the fact that he is buying this intentionally to sell to a third party is irrelevant, because the ATF licensee (at the time of the initial purchase) has absolutely no way of ascertaining whether that third party is a prohibited person or not.
Are you referring to the instructions on the 4473? Instructions are not law, any more than the "facts" presented on the often-erroneous BATFE FAQ site are law. The fact that there is a circuit split should be sufficient evidence that the law is NOT clear, either in its wording or in its intent.

My view as a layman is that this was not a straw sale. The defendant didn't receive money from his uncle in advance -- he purchased the gun using his own money, and he then subsequently sold it to his uncle -- through an FFL. The end result is that the desired background checks were conducted, and the desired paper trail was created.

Suppose the defendant was independently wealthy and that he had given the gun to his uncle instead of reselling it. The only factual difference would be a few more dollars in the uncle's bank account and a few fewer dollars in the defendant's bank account. The firearm would have gone through the exact same process, steps, and paperwork. But then it would have been "legal" because it was a gift rather than a resale.

Doesn't make sense, and I cannot convince myself that this was the intent of the law.

I won't attempt to predict how the SCOTUS will view this, but I know how I would rule if I were asked.
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Old October 15, 2013, 06:02 PM   #11
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Part of the original problem was that Mr. Abramski's uncle had written a check to him before Mr. Abramski purchased the gun. Therefore, the whole thing gets a little murky.

I don't deny it gets murky, however, I special order something, and I have to pay ahead of time. If he didn't use the Uncle's money, but his own, was it still a straw purchase, just because he knew he had a buyer on the hook already? Did he make any profit?
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Old October 15, 2013, 06:09 PM   #12
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Very interesting to me.

For instance, the act of selling something which you do not yet own on the promise of future delivery is done every day on Wall Street. It's called Short Selling.

One could argue that a purchaser did not use the other persons money unless it was actually or indistinguishably the other persons money. If you used the actual cash from the check or deposited the check and then used money from your account. Otherwise, if I cashed the person's check, held the money and used my own money and LATER put the money from the other person in my account, I did not use their money, literally did not.

In other news, I also see no reason at all why such a transaction should be illegal. There might be limited circumstances where it makes any sense to do it but people do things that don't make sense all the time. No reason for it to be illegal.

I'm not making any claims as to what is or is not legal, just pondering out loud.
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Old October 15, 2013, 06:12 PM   #13
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Did he make any profit?
Profit isn't the issue. A false answer on question 11a (and what might constitute a false answer) is the issue.

The whole thing may have seemed clear in theory when it was written, but it's not so clear in practice.
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Old October 15, 2013, 06:25 PM   #14
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Just to clarify a little of the timeline, from the Fourth's decision:
1) November 15, 2009 -- Alvarez sends Abramski a check for $400 with "Glock 19" in the memo line.
2) November 17, 2009 -- Abramski purchases G19 (and a bunch of other stuff apparently) for cash.
3) November 20, 2009 -- Abramski deposits check.
4) Nobember 21, 2009 -- Abramski transfers handgun via FFL to Alvarez.
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Old October 15, 2013, 07:25 PM   #15
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It is interesting that the courts are willing to waste inconceivable amounts of money as well as time beating this dead horse, rather than going after actual criminals...

Was a crime committed with the gun? If not, then WHAT'S THE BIG DEAL??? He could have bought the gun and then GIVEN it as a gift. Why is it the end of the world if he sells it to him?
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Old October 15, 2013, 07:33 PM   #16
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If I were law enforcement or a judge, I'd call it a straw purchase given the first three parts of the timeline. However, once they decided to do the handover through an FFL...well, that really goes towards wanting to do the right thing. Some discretion certainly should have been exercised.

Before anyone gets hinky about it, I've seen several incidents in which actual, intending-to-circumvent-the-law folks have been given a pass by the courts on this, or have been allowed to plead down to a lesser charge. Why single this guy out?
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Old October 15, 2013, 07:36 PM   #17
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Quote:
Just to clarify a little of the timeline, from the Fourth's decision:
1) November 15, 2009 -- Alvarez sends Abramski a check for $400 with "Glock 19" in the memo line.
2) November 17, 2009 -- Abramski purchases G19 (and a bunch of other stuff apparently) for cash.
3) November 20, 2009 -- Abramski deposits check.
4) Nobember 21, 2009 -- Abramski transfers handgun via FFL to Alvarez.
There is the proof of another crime according to the timeline not to mention a bigger one!:

Note: 1) and 2) is evidence that Glocks have went up well over $100 in just 4 years!

Back to topic: I can't find anywhere in the links about the reason the uncle could not purchase it himself. Just to Clarify, Was he a Felon?

If so, would that make the nephew guilty of another crime by knowingly and willingly selling a firearm to a known felon?
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Old October 15, 2013, 07:40 PM   #18
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Quote:
Originally Posted by TATER
Quote:
And your evidence of Congressional intent is?
tou-che my friend, nothing is obvious once ink hits paper. Intent "is" usually thrown in the garbage.
Not really. In fact, a court will look at legislative intent when dealing with a question of how a statute is supposed to be applied in a particular situation. But in doing so, courts will want to hear good arguments based on some solid evidence to support one side's or the other's contention of what legislative intent was or why a statute should be applied one way or another.

Quote:
Originally Posted by Aguila Blanca
...My view as a layman is that this was not a straw sale. The defendant didn't receive money from his uncle in advance -- he purchased the gun using his own money, and he then subsequently sold it to his uncle -- through an FFL...
A while ago I outlined current law on straw purchases in this thread on THR:
Quote:
Originally Posted by Frank Ettin

...The actual offense is violation of 18 USC 922(a)(6), making a false statement on the 4473 (specifically about who is the actual buyer), and has nothing to do with the ultimate recipient being a prohibited person.

See the ATF publication Federal Firearms Regulation Reference Guide, 2005, at page 165 (emphasis added):
Quote:
15. STRAW PURCHASES

Questions have arisen concerning the lawfulness of firearms purchases from licensees by persons who use a "straw purchaser" (another person) to acquire the firearms. Specifically, the actual buyer uses the straw purchaser to execute the Form 4473 purporting to show that the straw purchaser is the actual purchaser of the firearm. In some instances, a straw purchaser is used because the actual purchaser is prohibited from acquiring the firearm. That is to say, the actual purchaser is a felon or is within one of the other prohibited categories of persons who may not lawfully acquire firearms or is a resident of a State other than that in which the licensee's business premises is located. Because of his or her disability, the person uses a straw purchaser who is not prohibited from purchasing a firearm from the licensee. In other instances, neither the straw purchaser nor the actual purchaser is prohibited from acquiring the firearm.

In both instances, the straw purchaser violates Federal law by making false statements on Form 4473 to the licensee with respect to the identity of the actual purchaser of the firearm, as well as the actual purchaser's residence address and date of birth. The actual purchaser who utilized the straw purchaser to acquire a firearm has unlawfully aided and abetted or caused the making of the false statements. The licensee selling the firearm under these circumstances also violates Federal law if the licensee is aware of the false statements on the form. It is immaterial that the actual purchaser and the straw purchaser are residents of the State in which the licensee's business premises is located, are not prohibited from receiving or possessing firearms, and could have lawfully purchased firearms...
So, if --
  1. X says to Y, "Here's the money; buy that gun and then we'll do the transfer to me [when I get back to town, or whenever else].", or

  2. X says to Y, "Buy that gun and hold it for me; I'll buy from you when I get my next paycheck."
or anything similar, if Y then buys the gun, he is not the actual buyer. He is buying the gun as the agent of X, on his behalf; and X is legally the actual buyer. If Y claims on the 4473 that he is the actual buyer, he has lied and violated 18 USC 922(a)(6). His subsequently transferring the gun to X in full compliance with the law, does not erase his prior criminal act of lying on the 4473.

Some more examples --
  • If X takes his own money, buys the gun and gives the gun to someone else as a gift, free and clear without reimbursement of any kind, X is the actual purchaser; and it is not a straw purchase.

  • If X takes his money and buys the gun honestly intending to keep it for himself and later sells it to another person, X is the actual purchaser; and it is not a straw purchase.

  • If X takes his money and buys the gun intending to take it to the gun show next week to see if he might be able to sell it to someone at a profit, X is the actual purchaser; and it's not a straw purchase. He may, however have other problems if he manages to sell the gun at the gun show, and the transfer there isn't handled properly. He might also have problems if he does this sort of thing too frequently, and the ATF decides he's acting as a dealer without the necessary license.

  • If X takes his money and buys the gun with the understanding that he is going to transfer the gun to Y and that Y is going to reimburse him for it, X is not the actual purchaser. He is advancing X the money and buying the gun for and on behalf of Y, as Y's agent. So this would be an illegal straw purchase.

Whether or not a transaction is an unlawful straw purpose will often be a question of intent. But prosecutors in various situations can convince juries of intent, often from circumstantial evidence. A slip of the tongue, posting something on the Internet, tracks left by money transfers have all, in one way or another, and in various contexts, helped convince a jury of intent.
The real issue here is likely to be the language of the statute (18 USC 922(a)(6), emphasis added):
Quote:
(a) It shall be unlawful—

...

(6) for any person in connection with the acquisition or attempted acquisition of any firearm or ammunition from a licensed importer, licensed manufacturer, licensed dealer, or licensed collector, knowingly to make any false or fictitious oral or written statement or to furnish or exhibit any false, fictitious, or misrepresented identification, intended or likely to deceive such importer, manufacturer, dealer, or collector with respect to any fact material to the lawfulness of the sale or other disposition of such firearm or ammunition under the provisions of this chapter; ...
The general legal definition of "material" is:
Quote:
Important; more or less necessary; having influence or effect; going to the merits; having to do with matter, as distinguished from form....
So is the misrepresentation as to who the actual purchaser is material when the subsequent transfer was done at an FFL on a 4473?

The argument may have some merit, and indeed the Fifth Circuit in United States v. Polk, 118 F.3d 286 (5th Cir. 1997) decided that the misrepresentation as to the actual purchaser was not material when the subsequent transferee (the actual purchaser) could legally buy a gun directly.

But the Fourth Circuit in this case does not agree, nor do the Sixth Circuit (United States v. Morales, 687 F.3d 697 (6th Cir. 2012)), and Eleventh Circuit (United States v. Frazier, 605 F.3d 1271 (11th Cir. 2010)).

Quote:
Originally Posted by Wreck-n-Crew
...I can't find anywhere in the links about the reason the uncle could not purchase it himself...
As discussed above, that's not relevant under current law (at least in the Fourth, Sixth and Eleventh Circuits).
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Old October 15, 2013, 07:50 PM   #19
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Quote:
Just to clarify a little of the timeline, from the Fourth's decision:
1) November 15, 2009 -- Alvarez sends Abramski a check for $400 with "Glock 19" in the memo line.
2) November 17, 2009 -- Abramski purchases G19 (and a bunch of other stuff apparently) for cash.
3) November 20, 2009 -- Abramski deposits check.
4) Nobember 21, 2009 -- Abramski transfers handgun via FFL to Alvarez.
How did this even pop up on the BATFE's radar?

Quote:
Back to topic: I can't find anywhere in the links about the reason the uncle could not purchase it himself. Just to Clarify, Was he a Felon?
The only reason Abramski made the purchase was because he could get the gun cheaper using his LEO discount. So Glock prices haven't gone up that much either.
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Old October 15, 2013, 08:34 PM   #20
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Quote:
Just to Clarify, Was he a Felon?
No, the uncle was able to pass a background check at the time of transfer.

As I stated previously, the legal status of the recipient is irrelevant. The law prohibits proxy buys in general.
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Old October 15, 2013, 09:06 PM   #21
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This guy used his LEO discount, even an LEO didn't know he was breaking the law. Even if they are going after a medic or firefighter, the people that get the Glock discount are generally regarded as "good" people. If the BATF wants to make a point they chose the wrong person to go after.
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Old October 15, 2013, 09:30 PM   #22
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Quote:
Originally Posted by chexmix
...even an LEO didn't know he was breaking the law...
If he had spent some time here he might have been better informed. We've dealt with the subject a number of times. For example here, here, here, and here.

If he had read the instructions on the 4473, it might have given him a clue.

Of course, various folks on this board have commented in the past that it's a bad idea to rely on a state LEO for advice about firearms law, especial federal firearms law.
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Old October 15, 2013, 09:49 PM   #23
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I was way off in my interpretation of what a straw buy was!

This is one crazy law. When I think about some of the crazy things our government comes up with I am reminded of how much common sense is left.

If it was not for people sharing things like this I would probably never have the time to get a clear picture of what is really going on. Thanks guys, your the best!
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Old October 15, 2013, 11:13 PM   #24
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I understand the interpretation of the law that says this was technically a straw purchase. I'd like to know this:

I haven't read the lower court proceedings. Is there a 2nd amendment claim being made: that forbidding a "straw purchase", when the second transfer is conducted through an FFL thus invalidating any concern that the ultimate recipient might be a prohibited person, is an impermissibly broad restriction on an individual right?

If this case is merely a challenge to the definition of a straw purchase, I'm not very hopeful.
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Old October 15, 2013, 11:28 PM   #25
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Quote:
Originally Posted by tyme
...Is there a 2nd amendment claim being made...
No. The Second Amendment does not appear to have been raised in the Fourth Circuit nor is it touched upon in the petition for a writ of certiorari.
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