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June 11, 2011, 09:52 AM | #26 | |||
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End of discussion. Straw purchase. Your friend could have given the shop the money (or a down payment), returned to NY to complete the paperwork, then had his NY FFL send a copy of his license to the shop in NC and everything would have been squeaky clean. Out of curiosity, did the relative in NC make the purchase with his own money, or did your friend provide the funds to buy the firearm? Quote:
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First, if the NC relative buys the gun for himself, he is not perjuring himself when he checks "Yes" on the 4473 saying he is the actual purchaser. Second, the NC relative is not buying the gun for someone else, so it isn't a straw purchase. Again, just for clarity -- when the initial purchase was made in NC, whose money was handed to the gun shop? The answer to this doesn't ultimately affect the legality of the overall transaction, but it would be indicative of "intent." Did the NC relative buy the gun with his own money and then sell it to your friend in NY, or did the NY friend provide the funds for the initial purchase? Last edited by Aguila Blanca; June 11, 2011 at 10:04 AM. |
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June 11, 2011, 10:16 AM | #27 | ||
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And contrary to popular opinion, prosecutors convince a jury of a defendant's intent all the time. Intent is an element of many crimes and can frequently be inferred from actions surrounding an event or transaction, including timing. And sometimes statements made in letters, notes or even posts in an Internet forum can successfully be used as evidence of intent. (And there are numerous exceptions to the hearsay rule that would generally allow such statements to be used as evidence.) |
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June 11, 2011, 11:27 AM | #28 |
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fiddletown,
I meant that it would be hard for the defense to convince a jury that the defendant changed his mind 15 minutes after making a purchase. The 15 minutes time frame would be excellent evidence against the defendant as far as intent goes. |
June 11, 2011, 11:51 AM | #29 | |
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The reason I quoted you in my response is that you gave an excellent example of how a prosecutor can use facts surrounding a transaction, such as timing, to convince a jury of intent. Clearly a jury could easily infer, as a prosecutor would argue, that the short time interval shows that the defendant always intended to transfer the gun and that his claim to the contrary is eyewash. |
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June 14, 2011, 04:06 PM | #30 | |
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Now if the guy was disqualified by the law as a felon or wife beater etc then yes straw 100%. Things can be over analled to the point it all stinks.... Mom used to send me to my room for tattleing...... |
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June 14, 2011, 04:56 PM | #31 |
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The fact that one may not get caught for perpetrating an illegal act does not in any way make the act legal. It just makes the perpetrators "unindicted co-conspirators" rather than convicted felons.
The original question here was not "how likely are they to get caught?" The question was, "Was it legal?" My answer is "No." I note the original poster has not answered my question several posts above as to who provided the "up front" money to make the initial purchase. As for your attempt to construe the transaction as a gift -- it would be a gift only if the NC cousin made the purchase using his own money, and then gave the firearm to the NY cousin, with no repayment asked, expected, or made. |
June 14, 2011, 05:04 PM | #32 |
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Actually there are several federal charges that could be bought against the two people involved.
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June 14, 2011, 07:15 PM | #33 | |||
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Distant relatives and unrelated friends also give people gifts. And there's a difference between buying a gun as a gift and making a straw purchase. This difference is covered in the ATF reference guide quoted in posts 17 and 18. Quote:
And of course in this situation we have all the useful information posted by the OP. Quote:
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June 15, 2011, 02:57 PM | #34 | |
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Is a federal thing, a close relative can gift a gun to another close relative. Gee I have given a lot of guns to folks, all you need to do is a FFL transfer to the person you are giving the gun too. Same as if they bought it from you. Person A bought the gun and did the paperwork, person b added the gun to his allowed gun list (which is something I find repulsive) after he was ALLOWED to posses this gun it was transfered to him thru a FFL. Blame the state he lives in laws and requirements. |
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June 15, 2011, 04:50 PM | #35 | |||
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[2] Whether a transaction is a straw purchase has nothing to do with the relationship of the participants and everything to do with intent. Quote:
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June 15, 2011, 04:50 PM | #36 | |||||
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The original facts as laid out in the original post.....
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A day later NY Guy brings NC Relative into the store to buy the pistol for NY Guy. NC Relative purchases pistol NC Relative knows this so he buys pistol for NY Guy anyway and fills out 4473 stating he is the purchaser of the pistol. In fact his intent is to buy the pistol for NY Guy who is ineligible not for himself. NC Relative is acting as a proxy for NY Guy in the pistol purchase. From the Federal Firearms Regulations Guide from the ATF website. Quote:
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Any questions? for the icing on the cake.... if your friend in the same state gives you some money to buy a gun for him even if he is able to legally purchase it himself. Quote:
Relationship has no bearing on making a gift of a firearm.... Quote:
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Have a nice day at the range NRA Life Member Last edited by Eghad; June 15, 2011 at 05:12 PM. |
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June 15, 2011, 08:27 PM | #37 |
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And the original poster STILL has not come back to tell us whose money was used to make the purchase in North Carolina. IMHO that factoid doesn't make any difference in this case, but if the answer is what I expect it to be, it may convince some of those who think this might have been a legal transaction.
Last edited by Aguila Blanca; June 17, 2011 at 04:40 PM. |
June 16, 2011, 04:49 PM | #38 | |
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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? Did he go to jail? Was he arrested? Is he a mexican cartel member? lol both had ccw, both could leagally own a gun. I see nothing wrong wit hit. Now if the guy was banned from ownership.. that is how Isee the intent of the law. Not to discriminate against lawful people. |
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June 16, 2011, 07:57 PM | #39 |
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If you are buying the gun with the intent of it being a gift its fine....
if it is a straw purchase it is what it is. Your opinion on what the intent of the law is going to be worth spit on a hot griddle to a prosecutor. So what did your friend the ATF agent tell you? What did your friend the Federal Prosecutor tell you? Are you going to tell them that you cousins who are police officers told you it was ok to commit perjury under oath? the facts are what they are.... I can guarantee you I would not want to play with ATF agents and a Federal Prosecutor because I was too lazy to do things the right way. I can guarantee you that the Federal Prosecutor will have the guy from the gun store on the stand singing like a canary that he told NY Guy he was disqualified from buying the gun. Then the same clerk or the clerk who sold the NC Relative the gun will be singing like a canary on the witness stand. Forbid that the Federal Prosecutor comes up with a deposit to NC Relative that is about the same amount of a deposit as the gun purchased from a financial statement after NC Relative told them it was a gift. The prosecutor will give out plenty of rope.....before he takes up the slack. So why risk all that over a gun purchase when you can take a few minutes extra and do it the right way? You never know if the guy that made a questionable sale is going to get caught making another one and the prosecutor might ask him have you made any more that you know of?
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Have a nice day at the range NRA Life Member Last edited by Eghad; June 16, 2011 at 08:15 PM. |
June 16, 2011, 10:28 PM | #40 | |||
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[2] The fact that a defendant might say something on the witness stand does not mean that anyone has to believe him. Whatever he says may be challenged. And it has been known to happen that a defendant claims innocence on the witness stand; and the prosecution has nonetheless put on substantial evidence refuting the defendant's claim, convincing the jury beyond a reasonable doubt of the defendant's guilt and resulting in a verdict of guilty. Quote:
Last edited by Frank Ettin; June 17, 2011 at 12:50 AM. |
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June 17, 2011, 01:06 PM | #41 |
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fiddletown,
You have been charitable and patient in explaining the law here. Thank you. And I firmly second your remark about local law enforcement officers not being experts on federal gun laws. Heck, many of them are ignorant of state laws, as evidenced over the years by legal open carriers being proned out and arrested (Philadelphia, and Fairfax and Norfolk, Virginia leap to mind). The original question isn't that difficult, folks. This is clearly a straw purchase. Nothing in the law absolves the NC relative of lying on the 4473 when he affirmed he is the "actual purchaser," a term of art, if you will, of the firearm. Unless he bought it with his own money (without reimbursement from the NY relative) and gave it gratis to the NY relative, then he lied on the 4473. Case closed. An unlikely case for prosecution, perhaps, but a violation of federal law, nonetheless.
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June 17, 2011, 04:46 PM | #42 | |
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Hearsay? There is no hearsay involved. We have the original poster's statement as to exactly what happened. As for your cousins, the cops: What kind of cops would advocate ANYONE committing perjury? Testifying in a court is sworn testimony. Making a false statement under oath is called "perjury," and that is a criminal offense all by itself. Your cousins should resign and turn in their badges. If they would advise you to commit perjury, I have to assume that THEY would commit perjury, and there is no place in this country for cops who advocate and/or practice perjury. |
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June 17, 2011, 05:10 PM | #43 | |
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I say NOT a straw purchase. There was no intent to deceive the government about who would ultimately own the pistol. There was intent, followed by action as evidence of that intent, to use proper channels for the transfer of the pistol to it's eventual owner. The original purchaser did not transfer the gun to the present owner, an FFL did. It was bought with the intent to transfer properly through an FFL. Not a straw purchase in either the letter or the spirit of the law. |
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June 17, 2011, 06:26 PM | #44 | |
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June 17, 2011, 07:00 PM | #45 |
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Are you the actual purchaser?
Yes. This statement was made when the individual filling out the form was not the actual purchaser. That is the crime. If they had answered honestly the purchase wouldn't have been allowed even if they explained the ultimate intent to transfer through an FFL in NY. The dealer would have said they would be happy to ship it to a dealer in NY. Let's look at the elements: 1. That the accused made a certain statement in connection with the purchase of a firearm. 2. That the statement was false in certain particulars. 3. That the accused then knew the statement to be so false 4. The statement was made with intent to deceive If you prove the defendant knowingly lied you have essentially proven intent to deceive. People lie to deceive others and had the accused answered honestly on the 4473 the transfer would have been halted by the dealer. The intent of lying on the form is to allow the gun to be transferred. Proving the present intent of the person who filled out the 4473 can be a challenge . But I think you could do it with circumstantial evidence in this case. The dealer might remember seeing both parties in his shop. I would also subpoena bank records. Now if I were a prosecutor I wouldn't prosecute this case for several reasons none of which are an inability to carry the burden on the elements. |
June 18, 2011, 01:37 AM | #46 |
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He WAS the actual purchaser. Because he intended to transfer it through an FFL to another purchaser means he never intended to deceive the government about who owned the pistol, legally and in actuality. Last time I checked, you can't transfer a gun you don't own. He owned it, then transferred it through legal channels. It's not a straw purchase when you announce the new owner to the government each time it changes hands and a NICS check is completed.
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June 18, 2011, 01:58 AM | #47 | ||
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Were I prosecuting this case, I don't think I'd have much trouble getting a conviction. |
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June 18, 2011, 02:13 AM | #48 |
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The problem I have with this, in general, is that
a) it is legal to buy a firearm as a gift for somebody who may legally own it, but b) there is no block on the 4473's I've ever filled out for "purchasing as gift." So how does one fill out the 4473, when the intent is to buy the gun as a gift? Answer no to question 11, and then put in an explanatory block somewhere on the form? Or is there some other means of executing the lawful transaction, without causing problems with the 4473? |
June 18, 2011, 02:56 AM | #49 |
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Let me try to make the legal distinction between doing something on a someone's behalf and making a gift more clear.
[1] Say my wife and I are sitting around at home one day. I say to her, "I'd sure like a Coke. Would you mind running down to the store and picking me up a six-pack." Then she says, "Sure, I don't mind at all." She then goes out to the store and comes back a bit later with a six-pack of Coca-Cola. [2] On another day, I'm sitting at home. My wife went out a bit earlier to pick up the dry cleaning. She gets back and plops a six-pack of Coca-Cola on the table, saying, "I brought you a present." There is a legal distinction between those two situations. In the first, she is buying the Coke at my direction or request. She is, in legal terms, acting as my agent to buy the Coke on my behalf. When she bought the Coke she did so to fulfill my purpose and to further my explicit interest. I wanted the Coke, said so, and she went and got it for me. In the second, she has acted on her own initiative to buy me a present. When she bought the Coke, she did so on her behalf to fulfill her purpose. She wanted to do something nice for me, unbidden by me, and purely as an act of generosity on her part. Of course none of this matters, really, when talking about buying a soft drink. But it matters a great deal if we're talking about guns. |
June 18, 2011, 03:25 AM | #50 |
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Even so, fiddletown, I'd still like to know what the procedure is, with regard to the 4473, to purchase a gift firearm?
What I've ended up doing, since I don't know how to fill out the form in such an instance, has been to order a gun, and have it sent directly to the appropriate FFL for the recipient. I haven't touched the 4473 in a gift purchase, as the only FFL transaction has occurred where the recipient has taken possession. But say I were in a shop, and wanted to buy my lady a handgun. How should I fill out the form? It's not really clear on the form itself. |
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