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January 26, 2019, 11:38 PM | #26 |
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It might come down to who's opinion carries the most weight with the jury. If I give someone money, or a gift certificate, as a gift, to spend on anything that they want to buy with it, and they buy a gun (doing all the required things, 4473 paperwork, background check, they are the one picking it up, etc.), then I say I gave them a gift, and they bought a gun with it.
But a prosecutor can say I gave them a gift (money) to buy a gun with, and that makes me a criminal for doing a straw purchase. In this case, the prosecutor is making their own determination of what I had in mind (my intent), and that my intent was criminal. If he can convince a jury that he's right, I could be convicted. Even though in my mind there was no criminal intent, unless they believe me (or my lawyer) over the state, I'm going bye-bye for some time. Its a virtual trap that can easily catch the unwary. There is one thing, the more time that passes between the gift of funds and the purchase of the firearm, the more difficult it is to convince people that the gift was "for the purchase of the firearm". If for example, I give my daughter $500 for her birthday in September, and she spends $500 on a gun for Christmas, that looks much different than if I gave her money today, and she bought a gun tomorrow. Or so it seems to me...
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January 27, 2019, 08:13 AM | #27 | |
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January 27, 2019, 08:48 AM | #28 |
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-- delete --
Actually, the more I read/background this thing, the more I see the vulnerability in a situation wherein a third party filling out the paperwork -- however innocent/legitimate it may be -- can send up red flags. (I will bow to better safe than sorry) Last edited by mehavey; January 27, 2019 at 09:40 AM. |
January 27, 2019, 12:17 PM | #29 | |
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The Abramski case isn't what the OP, jaysouth, is describing. In jaysouth's scenario, he is only paying the bill and is not the purported or actual transferee. His daughter is filing out the 4473 and is the actual transferee, not an agent of the transferee; she will possess the arm. She is not acquiring the arm on behalf of her father, but for herself. In Abramski, two people conspired to transfer possession of an arm to one man, while the other, a mere agent of the real transferee, falsely represented himself as the real transferee.
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January 27, 2019, 01:24 PM | #30 | |
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And jaysouth did not buy the gun and take delivery himself, and then subsequently give it to his daughter. So in BARFE speak, it also isn't a gift. I understand that the transaction seems to be innocent enough. The problem is that, as the saying goes, "the devil is in the details." If the BATFE criterion is "Did you pay for this firearm with your own money," the answer here is "No" and that's why I believe it is -- technically -- a straw purchase. |
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January 27, 2019, 01:27 PM | #31 | |
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As before, I'm willing to roll over and play dead-cockroach at first cite. (See again post #25 wherein the ATF uses the words "... or otherwise acquiring...", as well as simple transfers with no money involved at all.) |
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January 27, 2019, 01:40 PM | #32 | ||||
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The BATFE don't have authority to define what is or is not a straw purchase, but note that the instructions don't indicate that jaysouth's transaction would be one.
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Had jaysouth financed the transaction in an effort to falsely represent his daughter as the transferee, with an understanding with his daughter that he would come to possess the arm, then this would be a straw purchase. However jaysouth's scenario lacks this last part.
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January 27, 2019, 03:20 PM | #33 |
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^^^ But if you look at Abramski, the crux of the case was exactly whose money paid for the gun. Abraamski took possession from the vendor FFL by way of a 4473, and Abramski was not a prohibited person. Abramski then sent the gun to an FFL in Pennsylvania (his uncle's state of residence), and the uncle took possession by way of filling out a 4473. The uncle likewise was not a prohibited person.
BUT ... Abramski did not use his own money to by the gun. Prior to the initial purchase, the uncle sent the money to Abramski. And he issued a receipt -- it was that document that triggered the whole case. In other words, the whole problem was that Abramski "bought" the gun using someone else's money. Isn't that essentially what happened with jaysouth and his daughter? |
January 27, 2019, 04:08 PM | #34 | |
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In contrast, JS's daughter hasn't functioned as JS's agent. She is completing the 4473 because the arm really is for her.
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January 28, 2019, 06:35 AM | #35 |
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Quoting this just because it's funny.
Back to the thread at hand. While I understand the concerns, and think a gift card would have alleviated some of these concerns, I don't think this is a straw purchase. Jaysouth is paying for the gun, but the daughter is picking it up the gun and filling out the 4473. There does not appear to be any agreement for daughter to deliver the pistol to jaysouth, which is what made for a straw purchase in Abramski. I can buy a pistol. I can buy someone else a pistol as a gift. I can give someone else money to buy a pistol, for themselves. What I cannot do is give someone money to buy a pistol for me.
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January 28, 2019, 08:57 AM | #36 |
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Spats, that was a typo. Unfortunately, that happens more often than I like, and more often when I'm using a notebook computer (as I am now, because my home internet is down due to storm damage).
I understand your point, but I remain unconvinced. Maybe I'm just excessively risk-averse. This is not a clear-cut question, as demonstrated by the fact the the nine SCOTUS justices could not agree on what the law is in the Abramski decision. You are an attorney -- I am not. My layman's takeaway remains that the basic principle is that the person receiving the firearm must be the person whose money pays for the firearm. I'm sure it's not that simple, but I think that's what the first FFL jaysouth talked to thought, and my estimation is that if that rule (of thumb) is followed it's not difficult to stay out of trouble. |
January 28, 2019, 09:20 AM | #37 | |
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That can be distinguished from the Rule of Abramski. It's worth noting that the four justice dissent in Abramski argued that the federal regulation itself wasn't violated by Abramski, who as the person who bought the arm was the true buyer; that majority implied common law agency principles into the code, then ignored the common law definition of a straw purchase (an agent purchasing for a principle who is legally prohibited from purchase) where the principle was not prohibited from the transfer. Even poorly reasoned Sup Ct opinions are binding until they aren't, but if we understand the reasoning of the majority in Abramski, then we can apply it to situations like jaysouth's.
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January 28, 2019, 02:00 PM | #38 | ||
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What hung Abramski was that he didn't buy the gun with his own money. The uncle sent him the money prior to the purchase -- and created a paper trail. So, even though neither Abramski nor his uncle was a prohibited person, since it was the uncle's money it was deemed that Abramski was not the "actual purchaser." Again, from the 4473 instructions for question 11.1: Quote:
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January 28, 2019, 03:00 PM | #39 |
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AB, notice that in the example you provided from the instructions on the 4473, the firearm is not for the person who is filling out the 4473. But in the case of the OP, the person who filled out the 4473 is the person who is getting the firearm. That’s the difference here.
If the person who is filling out the 4473 is the actual person who is getting the firearm (transferee), it doesn’t matter who pays for it; it’s not a straw purchase. But in the example from the 4473, the person paying for it is the person who is to receive the firearm, but they’re not the one who is filling out the 4473. That’s a straw purchase, and that’s why the ATF uses it as an example.
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January 28, 2019, 04:00 PM | #40 | ||
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The source of the money and timing of the payment are prominent in the Abramski decision, but they are a prominent evidentiary matter. Payment isn't what makes a straw purchase; in the Abramski case it is evidence that the relationship was one of principal and agent. Payment isn't an element of the definition of the relationship. Had no money changed hands, but the nephew had written a note -- "Dear Uncle, please misrepresent to the FFL that you are the transferee for a pistol so that it can really be transferred to me", that note would have had a similar effect in proving the nature of the relationship. Yet, a written note isn't necessary to, or part of the definition of, that relationship. It's easy to see why a reader of Abramski could focus on the payment issue, but for the purpose of understanding the rule, it's a distraction.
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January 28, 2019, 07:34 PM | #41 | |
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If "AND" then it's arguably a straw purchase. If " OR " then it's not. Where is there any written citation from the ATF (or the Court) as to their interpretation ? |
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January 29, 2019, 11:54 AM | #42 |
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If you give a person $500 as a gift and they decide to buy a firearm with it, then it's not a straw purchase. Same if you buy the person a $500 gift card to a gun store and they buy a firearm with it.
Same if you take that person to the gun store, they complete the 4473 and you pay for it. It's just a money gift to someone. And ultimately, if you buy a gun legally and give it as a gift, that's also not a straw purchase. Or maybe that's already been said............ Too many different angles for interpretation. --Wag--
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January 29, 2019, 02:20 PM | #43 | |||
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The problem is that none of the above describes the transaction set forth in jaysouth's opening post for this thread. He did not send the money to his daughter. He did not give his daughter a gift card. He did not buy a gun himself and then give/send/transfer the gun to his daughter in a second transfer. |
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January 29, 2019, 03:20 PM | #44 | |
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The following is from the BATFE's reference guide to firearms regulation. It's about a 250-page document that you can probably find on the internet.
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January 29, 2019, 03:55 PM | #45 |
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Link to Aguila Blanca's posting:
https://www.atf.gov/file/56376/download "The use of gift certificates would also not fall within the category of straw purchases. The person redeeming the gift certificate would be the actual purchaser of the firearm and would be properly reflected as such in the dealer's records."
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January 29, 2019, 04:30 PM | #46 |
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using somebody else's money is the funny part. if you're married you always use your wife's money because you have none of your own.
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January 29, 2019, 08:46 PM | #47 |
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January 29, 2019, 10:50 PM | #48 |
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Mine says the same but yes yours is better.
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January 30, 2019, 09:37 AM | #49 |
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Part of the problem is the process of establishing intent. Aguila Blanca is absolutely correct that technically speaking, if Smith completes the 4473 and Jones plops down the cash on the counter for it, it's a straw purchase but in reality, it's simply intended to be a gift from Jones to Smith. One law-abiding citizen being generous to another on his birthday.
Of course, the appearance of evil is everything. --Wag--
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January 30, 2019, 06:25 PM | #50 |
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We are still playing red herring/apples vs oranges
An example of an illegal straw purchase is as follows: Mr. Smith asks Mr. Jones to purchase a firearm for Mr. Smith. Mr. Smith gives Mr. Jones the money for the firearm. If Mr. Jones fills out Form 4473, he violates the law by falsely stating that he is the actual buyer of the firearm. Mr. Smith also violates the law because he has unlawfully aided and abetted or caused the making of false statements on the form. That is not the case with father supplying the cash for the daughter filling out the 4473 and the daughter keeping the gun She is the transferee . . . and I'm still waiting for a case/cite that contradicts those conditions. |
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