SCOTUS Has Taken a Straw Purchase Case

[motorhead0922]

I don't see why several of you are complaining about Abramski's sentence. He got 5 years probation. Montelongo got 3 1/2 years in prison.

On June 29, 2011, pursuant to a plea agreement with the
United States Attorney, Abramski entered conditional guilty
pleas, pursuant to Rule 11(a)(2) of the Federal Rules of Criminal
Procedure, to both charges in the indictment.7 On October
3, 2011, the court sentenced Abramski to five years of probation
on each offense, to run concurrently. Abramski thereafter
filed a timely notice of appeal.

[JohnKSa]

Since I'm buying it as a gift, I'm not breaking the law. Even if he reimburses me for it. Even if I sell it to him at a higher price than I paid.

In my opinion, you would be on thin ice if money changed hands between the two of you. For one thing, you can't claim it's a gift anymore. It's not a gift if you are reimbursed or if he pays you for it.

As I understand it, if it became an issue, your defense would be that you simply bought it with the intent to resell it. That is legal as long as you weren't making a habit of buying and reselling guns (you'd need an FFL to continually engage in buying and reselling guns) and as long as he hadn't asked you to buy it on his behalf (then it would be a straw purchase).

[Tom Servo]

I don't see why several of you are complaining about Abramski's sentence. He got 5 years probation. Montelongo got 3 1/2 years in prison.

Montelongo's actions are the sort of thing this law was supposed to punish. Those guns went into the hands of criminals and were used in homicides. The sentence for straw purchasing is supposed to be ten years.

We won't fully enforce the law for people who do real harm, but we'll prosecute a man on malum prohibitum? Sorry, but I can't get behind that.

[Don P]

My question is why didn't dad by the gun for himself to start with? Why did son buy the gun then sell to dad?
Doesn't make sense (something fishy going on) and opened one hell of a can of worms.
Especially after dad was able to pass the background check.
Go figure.

[Frank Ettin]

Originally Posted by Don P

My question is why didn't dad by the gun for himself to start with? Why did son buy the gun then sell to dad?...

As a former LEO son was able to buy the gun at a discount from a particular dealer. All of this was about saving a little money.

[Brian Pfleuger]

Originally Posted by John K SA

In my opinion, you would be on thin ice if money changed hands between the two of you. For one thing, you can't claim it's a gift anymore. It's not a gift if you are reimbursed or if he pays you for it.

As I understand it, if it became an issue, your defense would be that you simply bought it with the intent to resell it. That is legal as long as you weren't making a habit of buying and reselling guns (you'd need an FFL to continually engage in buying and reselling guns) and as long as he hadn't asked you to buy it on his behalf (then it would be a straw purchase).

The real idiocy there is that you can buy with the intent to resell but you can't sell it (get the money) before you buy it. There is fundamentally no difference.

[Don P]

As a former LEO son was able to buy the gun at a discount from a particular dealer. All of this was about saving a little money.

Unfortunately penny wise and dollar foolish.

[Al Norris]

For those interested, SCOTUSblog has the complete filings for cert: Abramski v. United States : SCOTUSblog

Of interest is the questions the petitioner wants the Court to address (link given in the OP):

QUESTIONS PRESENTED

When a person buys a gun intending to later sell it to someone else, the government often prosecutes the initial buyer under 18 U.S.C. § 922(a)(6) for making a false statement about the identity of the buyer that is “material to the lawfulness of the sale.” These prosecutions rely on the court-created “straw purchaser” doctrine, a legal fiction that treats the ultimate recipient of a firearm as the “actual buyer,” and the immediate purchaser as a mere “straw man.”

The lower courts uniformly agree that a buyer’s intent to resell a gun to someone who cannot lawfully buy it is a fact “material to the lawfulness of the sale.” But the Fourth, Sixth, and Eleventh Circuits have split with the Fifth and Ninth Circuits about whether the same is true when the ultimate recipient can lawfully buy a gun. The questions presented are:

1. Is a gun buyer’s intent to sell a firearm to another lawful buyer in the future a fact “material to the lawfulness of the sale” of the firearm under 18 U.S.C. § 922(a)(6)?

2. Is a gun buyer’s intent to sell a firearm to another lawful buyer in the future a piece of information “required . . . to be kept” by a federally licensed firearm dealer under
§ 924(a)(1)(A).

Of equal value, are the questions the respondent would like the Court to answer:

QUESTIONS PRESENTED

1. Whether petitioner’s statement that he was the actual buyer of a firearm on a Bureau of Alcohol, Tobacco, Firearms and Explosives Form 4473 was a false statement “material to the lawfulness of the sale” under 18 U.S.C. 922(a)(6), where petitioner purchased the firearm for his uncle and both he and his uncle were eligible to purchase a firearm.

2. Whether the identity of the actual buyer of a firearm is information that is required to be kept in the records of a federal firearms dealer under 18 U.S.C. 924(a)(1)(A).

There were two amici briefs filed, both for the petitioner. Brief amici curiae of Steve Stockman, et al. filed. and Brief amicus curiae of NRA Civil Rights Defense Fund filed..

The petitioners reply: Reply of petitioner Bruce James Abramski, Jr. filed.

All of that aside, what question(s) did the Court actually decide to answer (always in doubt until orders come out, as the Court has great latitude to rephrase the questions to their liking)? The answer (which is here) is that the Court will answer the questions as the petitioner has asked, in the exact manner asked.

While this case is only peripherally about the 2A, it will be an interesting case to follow, as it can clear up much of the "straw purchase" arguments we have.

[Aguila Blanca]

2. Is a gun buyer’s intent to sell a firearm to another lawful buyer in the future a piece of information “required . . . to be kept” by a federally licensed firearm dealer under

I certainly hope the Court's answer to number 2 is a resounding "NO!" because, otherwise, for all practical purposes a giver's intention to give away a new firearm to an end recipient as a gift (which has the exact same result, absent an exchange of funds or reimbursement) should also result in the FFLs being required to keep a record of giftees -- which the law (and BATFE guidance) plainly does not require.

[Clark]

Joe Waldron, pro gun debater, tells me that few crime guns come from gunshows, but many crime guns come from straw man purchases. He adds that after the crime, the strawman buyer is almost never prosecuted. He says a typical situation is a convicted felon has his girl friend buy the gun. The prosecutor does not want to take some welfare mom to trial.

So I pondered this until I realized that it would be very hard to prosecute a strawman if there is no paper trail. The girl friend could simply say she later sold it to her boy friend, or he took it without asking, etc.

All this must leave prosecutors looking hard for a straw man case with a paper trail. And then on November 15, 2009 -- Alvarez sends Abramski a check for $400 with "Glock 19" in the memo line.

[Frank Ettin]

...strawman buyer is almost never prosecuted. He says a typical situation is a convicted felon has his girl friend buy the gun...it would be very hard to prosecute a strawman if there is no paper trail. The girl friend could simply say she later sold it to her boy friend, or he took it without asking...

I have no idea what percentage of various variations on such transactions might be prosecuted, but some time back in reaching case law I came upon a fair number of cases involving that sort of conduct.

So it looks like at least some such cases do get prosecuted.

[rwilson452]

I recall a case some time ago where women druggie bought a gun for her dealer. The judge let her off with probation so she could care for her children.

[KyJim]

Oral argument is this morning. ScotusBlog has an analysis at http://www.scotusblog.com/2014/01/ar...on-gun-buyers/. I'm not sure if they'll analyze the oral argument or not. It seems they do not always do so.

Note:

[Armorer-at-Law]

A good (and unbiased) recap of the oral argument can be found here: http://www.scotusblog.com/2014/01/ar...s-the-problem/

[Spats McGee]

From the link that Armorer-at-Law posted:

The hypotheticals flowed fast and furious, . . . .

Anybody care to opine as to whether this pun was intentional?

[Armorer-at-Law]

And here is a link to the actual oral argument transcript: http://www.supremecourt.gov/oral_arg...-1493_2135.pdf

[Marred]

I don't see that this is a straw purchase case because he wasn't buying for a prohibited person. They got him for lying on form 4473, they can prove that he only bought the gun for his father.
Form 4473 says "I understand that answering "yes" to question 11.a. if I am not the actual buyer is a crime punishable as a felony under Federal law, and may also violate State and/or local law." Dude is toasted.
If you buy a gun as a gift for someone else and legally transfer it into their name for no money, that also is a violation of what you are signing on form 4473 question 11.a. More proof that telling the truth can get you in trouble.

[Frank Ettin]

Originally Posted by Marred

I don't see that this is a straw purchase case because he wasn't buying for a prohibited person....

That has nothing to do with it according to ATF. It's all covered in post 18.

Originally Posted by Marred

...If you buy a gun as a gift for someone else and legally transfer it into their name for no money, that also is a violation of what you are signing on form 4473 question 11.a...

No, read the instructions to Question 11.a. on the current Form 4473 (emphasis in original):

Question 11.a. Actual Transferee/Buyer: For purposes of this form, you are the actual transferee/buyer if you are purchasing the firearm for yourself or otherwise acquiring the firearm for yourself (e.g., redeeming the firearm from pawn/retrieving it from consignment, firearm raffle winner). You are also the actual transferee/buyer if you are legitimately purchasing the firearm as a gift for a third party. ACTUAL TRANSFEREE/BUYER EXAMPLES: Mr. Smith asks Mr. Jones to purchase a firearm for Mr. Smith. Mr. Smith gives Mr. Jones the money for the firearm. Mr. Jones is NOT THE ACTUAL TRANSFEREE/BUYER of the firearm and must answer ”NO” to question 11.a. The licensee may not transfer the firearm to Mr. Jones. However, if Mr. Brown goes to buy a firearm with his own money to give to Mr. Black as a present, Mr. Brown is the actual transferee/buyer of the firearm and should answer “YES” to question 11.a. However, you may not transfer a firearm to any person you know or have reasonable cause to believe is prohibited under 18 U.S.C. § 922(g), (n), or (x). Please note: EXCEPTION: If you are picking up a repaired firearm(s) for another person, you are not required to answer answer 11.a. and may proceed to question 11.b.

[Marred]

You are correct Frank.

[KyJim]

I quickly ran through the transcript. It is often a bad idea to guess the justices' votes based on their questions but I'll venture a guess or two. I think Kagan and Breyer are in favor of the government with Sotomayer and Alito leaning that direction. There's an outside chance Breyer might go with a lenity argument (interpreting a criminal statute in favor of the defendant if ambiguous). Scalia is solidly on the side of defendant with Roberts probably also there. Kennedy seemed to be leaning that direction. Thomas did not ask questions and I didn't get a read on Ginsburg.

[Frank Ettin]

Based on KyJim's handicapping I'm not going to be making any bets on how this turns out.

[Tom Servo]

Frank is correct on the law as it stands. We've been over this in other threads. It's a bad law, but is it unconstitutional? That's the question.

Based on KyJim's handicapping I'm not going to be making any bets on how this turns out.

I will. I predict they'll uphold it. In National Federation of Independent Business v. Sebelius last year, Roberts pretty much declared a new policy of judicial restraint. The idea is that SCOTUS should bend over backwards to uphold a law unless there's no other way whatsoever to justify it.

That worries me more than Scalia's vagueness in Heller.

[Aguila Blanca]

Roberts can speak for Roberts, but judges have a tendency to think for themselves (especially the Supremes). And they'll sometimes vote the way they want to vote even when it's clearly wrong. (If not for that, Heller and McDonald should both have been 9-0 votes.)

If Alito votes to uphold this conviction I will be very disappointed in him.

[Don P]

On FOX this morning this was discussed with Judge Napolitano and both he and Steve neglected to bring up the issue of the money time line that exchanged hands. Hearing this FOX has dropped the ball. From what I have read here it seems that is the heart of this whole case the money time line and purchase time line.

[Al Norris]

The real question, as I see it, is whether or not the ATF can changes the rules and make something criminal when it is not given that authority within the statute at issue.

That goes to the heart of Form 4473, question 11.a.

If the Justices believe that such a power is not within the law, as written, then the case should never have been brought and form 4473 will have to be changed. It is instructive that from 1968 until 1994, this Government viewed the entire thing in the manner the petitioner is requesting. It was only in the last 20 years, that this ATF changed how things should work.