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October 15, 2013, 02:01 PM | #1 |
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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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October 15, 2013, 03:11 PM | #2 | |
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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:
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October 15, 2013, 03:37 PM | #4 |
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The Fourth "Circus" Is twisting the intent…
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October 15, 2013, 03:57 PM | #5 |
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SCOTUS Has Taken a Straw Purchase Case
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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? |
October 15, 2013, 04:44 PM | #7 | |
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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. |
October 15, 2013, 05:29 PM | #9 | |
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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.
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October 15, 2013, 05:56 PM | #10 | |
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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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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? |
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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October 15, 2013, 06:12 PM | #13 | |
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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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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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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? |
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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October 15, 2013, 07:36 PM | #17 | |
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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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October 15, 2013, 07:40 PM | #18 | ||||||||
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The real issue here is likely to be the language of the statute (18 USC 922(a)(6), emphasis added): The general legal definition of "material" is: 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:
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October 15, 2013, 07:50 PM | #19 | ||
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October 15, 2013, 08:34 PM | #20 | |
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As I stated previously, the legal status of the recipient is irrelevant. The law prohibits proxy buys in general.
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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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October 15, 2013, 09:30 PM | #22 | |
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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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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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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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October 15, 2013, 11:28 PM | #25 | |
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