At what point is it no longer a straw purchase?

[Thernlund]

Heh. Then it's just sematics, isn't it? In which case, this is now a circular argument.

Po-tay-to, po-taw-to.


-T.

 

[Art Eatman]

NavyLT, regardless of what you heard from one individual agent, I suggest you read what the regulations say.

Paragraph 478.32, beginning on Page 33, with the pertinent part being on Page 34, right-hand column.

Nowhere does it speak to what the purchaser is otherwise going to do.

A legal person buying for another legal person is not a straw purchase. Parent to family member, sib to sib as a gift, friend to friend, etc.

Sure, it's wise to use an agent's opinion as a guideline. But it is not definitive. It's no different from telephone advice from somebody at IRS: If it's not in writing from the legal department, it's not definitive.

Read. The. Regulations.

 

[green country shooter]

Since the term "straw purchase" is not defined in the law itself, I guess you can make it mean whatever you want.

I realize Art is a moderator, but he is wrong. If you buy a gun for someone else, it is a federal felony. It does not matter whether the person is prohibited from owning a gun or not. It does not matter what the BATFE says, either. What matters is what the law says and what the U.S. attorney for your district says. I quoted the law above, but everyone seems to be ignoring it. There is nothing in the law relating to lying on the form 4473 about the other person being a prohibited party.

 

[evan price]

Green Country Shooter, the USC you cited clearly says, "Engaged in business". To be engaged in business is the thing to debate in this- and obviously the intent is to eliminate the kitchen-table FFL's who actually do not have an FFL.
While I personally would not like to get ten years in a Federal Pound-you-in-the-A**-prison for a debate on what the meaning of "engaged" is, I respectfully disagree since all crime revolves around intent. If the OP's INTENT was not to resell a firearm then it is not a crime.

I had a gun once that I bought & shot it one range trip and decided it wasn't for me, and since a buddy had told me, "If you ever want to get rid of that, call me!" I called him. He paid me what I paid for the rifle. He's quite happy with it. I used the money to buy something else.

Am I an (unindicted) felon?

 

[NavyLCDR]

+1 Green Country Shooter.

Just so we clarify, Art. You are saying that it would be perfectly legal for a 19 year employee of mine, whom I can legally sell a handgun to in Washington, to come to me and say, "Sir, I want an XD45 for self defence, Sportmans Warehouse has them on sale, will you buy it for me?"

I say, "Sure! Since you are legal to buy from me, I will buy the gun and sell it to you!" I buy the gun at SW, walk out to the parking lot and sell it to my 19 year old employee.

So all of that is legal, Art?!? Let me ask you this, would you do it with the BATF present?

GIFTS are a completely different case and it doesn't matter if the gift is to a family member or not.

 

[RDak]

I'm not getting this one.

There is a paper trail to you and then you would say you sold it to him. (I assume you'd get a receipt. If not, you still sold it to him.)

This isn't a strawman sale and there is a paper trail IMHO.

What am I missing?

(NavyLT: In Michigan, your example would be a strawman purchase IMHO, unless you both had a pistol purchase permit from the local police.)

 

[blackcash88]

Fuggedaboutit. NavyLT is too dense to get it. I worked with WAAAY too many Navy O-3s and learned to not expect much intellectually from them. And this is coming from a retired O-6.

 

[waterhouse]

Paragraph 478.32, beginning on Page 33, with the pertinent part being on Page 34, right-hand column.

Nowhere does it speak to what the purchaser is otherwise going to do.

A legal person buying for another legal person is not a straw purchase. Parent to family member, sib to sib as a gift, friend to friend, etc.

Sure, it's wise to use an agent's opinion as a guideline. But it is not definitive. It's no different from telephone advice from somebody at IRS: If it's not in writing from the legal department, it's not definitive.

Read. The. Regulations.

Art, we've been through this before. The regulation you are quoting basically says "You cannot knowingly sell a gun to a prohibited person." This is a law. It is not the "straw purchase" law. The straw purchase law deals with the truthfulness of your answers at the time when you fill out and sign the 4473.

If you buy a gun for yourself, and 5 years later a guy wants to buy it from you, and he tells you the reason he wants to buy your gun is that he is a convicted felon so he can't go into a store and buy one, and you sell him the gun, you have broken the law you cited, but you never made a straw purchase.

From Green Mountain Shooter's post above. Read. The. Law.

And here is the part that makes the declaration on the form 4473 a crime, namely perjury: 18 922 (a) (6)

(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;

It is available here:
http://trac.syr.edu/laws/18/18USC00922.html

That law is the law the straw purchase concept is based on. I'm not getting this from a random ATF agent. I sat down for over an hour with an ATF attorney and an assistant US attorney to talk with them about this. That law states that ANY false statement on the 4473 is a crime. No where does the law say anything about prohibited persons.

What about gifts? Take guns out of the equation. Lets say you go to buy a book. You pay for the book, and give it to your friends as a gift. You were the actual purchaser of the book. Now let's say your friend wants a book, and you happen to be heading to the book store. He hands you his credit card, or some cash, and asks you to buy the book for him. Although you are making the transaction at the store, your friend is the actual purchaser of the book. That is why question 11.a on the 4473 states "Are you the actual buyer of the firearm(s) listed on this form." That is why there is a "legitimate gift" allowance. If you are buying a legitimate gift, you are the actual buyer.

And because people have trouble interpreting the law, the ATF has an entire section in the Federal Firearms Reference devoted to explaining the straw purchase law.

16. "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 from the
licensee.
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.
Where a person purchases a firearm with the intent of making a gift of
the firearm to another person, the person making the purchase is indeed the
true purchaser. There is no straw purchaser in these instances. In the above
example, if Mr. Jones had bought a firearm with his own money to give to Mr.
Smith as a birthday present, Mr. Jones could lawfully have completed Form
4473. 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.

http://www.atf.gov/pub/fire-explo_pub/geninfo.pdf , page 25 of 32


I am aware also of US vs. Charles Ray Polk. In the 5th Circuit, you will probably be able to get away with buying a gun for another lawful person, but you will spend a heck of a lot of money defending yourself. In other words, in some parts of the country you have some legal precedent to buy a gun for another law abiding citizen, but the people who prosecute such things still hold that you do not have the lawful ability to do so.

Nothing above should be taken to say that I agree with the laws as they are written.

 

[DMF]

It seems like "time" of my ownership is the only issue.

No it's about intent. The intent which you clearly defined with this comment:

But he does not like the paper trail when buying new from a dealer.

The intent would be to lie about who the actual purchaser of the firearm is, so that he can avoid filling out the 4473. Which is illegal.

 

[DMF]

My understanding of a "straw purchase" was when someone ABLE to legally own and purchased a firearm bought one for someone who was UNABLE to legally own and purchase a firearm.

That is not true. Anytime someone fills out the 4473 and purchases the firearm or another person (not a gift) it's a straw purchase. It does not matter if the the true purchaser of the firearm is prohibited or not.

 

[Robusto]

I don't think so...

If you go buy another one for him, you'll be committing perjury when you check the box marked "I am purchasing it for me." It would be a straw purchase.

I'm not a lawyer (yet), and laws do vary from state, but I think that the key part here is if you have a reasonable belief that that person would not legally be able to buy a gun him/her self.

The intent to keep it your self is not relevant because buying a gun as a gift is totally legal as long as you obey the transfer laws, whatever they be in your state. Also, most of us buy guns with the realization that we may sell them in the future.

My thoughts, your friend is either not telling you the whole story or is totally paranoid.

 

[deadin]

I'm not a lawyer (yet), and laws do vary from state

The laws concerning the 4473 are Federal and are the same in every state.
Some states may have even more stringent requirements in place, but they really aren't germaine to this discussion.

 

[tuckerdog1]

Hey all, thanks for the feedback. First, I was not concerned what I was doing was a straw purchase. But was curious,
as "time" seemed to be the only factor in the sale of the currently owned gun. But I guess it comes down to intent & who's $$$ is buying the gun.

As to my friend maybe having something in his past that could make it illegal to own a firearm...well that could be true of any good faith FTF...Hell, my own family members could have something in the closet I'm unaware of. I've known this fellow & his family for over 10 years. Good upstanding people ( PTA, Girl Scouts, etc. ). They came to me asking for advice on firearms, because they know I'm into them. He has begun to get the feeling he needs to prepare for the S to HTF. His idea was to go to a gunshow and buy off the grid ( several firearms ). I had this one, that was exactly what he was looking for. I made the offer to do this whole deal. I bought it new, so there is already the dreaded paper trail to me. So big deal if there is a 2nd one. Should be nothing to fear with a good faith FTF sale.

Tuckerdog1

 

[thesecond]

It may be about intent. It may be about something else.

To the original poster, Tuckerdog1, the following is not from a practicing attorney, nor should it be interpreted as legal advice, only MHO:

To sell your first gun ("Gun A") to your buddy is a transaction which would not violate 922(a)(6), but may violate 922(d).

At the time of your purchase, you did not knowingly make any false written statements with the intent to deceive or knowing such falsity would be likely to deceive, e.g., the FFL or the ATF. Gun A was purchased by you and actually for you on that particular day in the past. Thus, all other facts equal per form 4473, there would be no violation of 922(a)(6).

The mere fact that Gun A, subsequently, is transferred to your buddy, does not sufficiently inform us of any intent at the time of the original purchase of Gun A, for purposes of a prosecution under 922(a)(6). Of course, the record of a statement like the one which follows, could yield a different result:

"I knew back then, when I bought Gun A, that the gun wasn't actually for me, because I was going to sell it to my buddy, and I checked the box yes on question 1-form 4473 anyway, and I did so because if I did not check yes on the box, the FFL would not have sold me the gun."

The relevant issue under 922(d) is your actual knowledge of the fact that your buddy (transferee) is prohibited, or your knowledge of facts which would give a reasonable person cause to believe same. At the present time, you know of no prohibited statuses which apply to your buddy (transferee). He merely stated that "he does not like the paper trail when buying new from a dealer." Now the question is, does your buddy's statement, along with other facts you already know of him (via court documents, news articles, gossip, etc.), oblige you to make further inquiry regarding your buddy's "status"?

In others news:

In contrast to the situation of a sale of Gun A, to sell your second gun (hereinafter "Gun B") to your buddy, you already have expressed the requisite mens rea (state of mind, in this case, knowledge of falsity and intent to deceive the FFL and the ATF with such falsehood) for a possible conviction under 922(a)(6). Further, you also may be charged and convicted of violation of 922(d), depending on what you know, or what you reasonably could be obligated to know, of your buddy, as discussed above.

Fellow High Roaders, are there any other provisions of title 18 that would apply to this fact scenario, outside of 18 USC 922(a)(6) and 922(d)?

 

[Deleted member 66305]

I also don't think your friend should own firearms... him not wanting a paper trail, but its ok if you have one. Speaks volumes about his mental state of mind and his morals.

Not necessarily.

Suppose I have a friend who tends towards being suspicious of the government, and post-Katrina, wants a gun that's off the books so police going door-to-door to confiscate weapons will not know to check his residence, and he knows I don't share his concern, because I've bought LOADS of guns with a papertrail.

I don't think that bears on his morals at all.

 

[bubba1]

If there is no 4473, can there still be a "straw purchase"? In other words, is this still an issue for antique firearms (manufactured in or before 1898) or a private sale?

 

[green country shooter]

It is still illegal to transfer a firearm to a prohibited person even if it is a private sale. But it is not illegal to make a private purchase on behalf of someone else. What makes the straw purchase illegal is the lie on the form 4473, not the substance of the transaction. Now, that is the federal law. Your state and local laws may make that transaction illegal.

 

[GRB]

Gave my step-daughter a 9mm Sig SP2022 as a "first apartment" present last year. I don't expect I broke the law.

Giving someone a gun as a gift is not a 'straw purchase' type thing, even if you bought the gun today and gave it to someone tomorrow. You bought it for yourself so you could give it as a gift. You did not buy it "FOR" someone else, the for here meaning that you did not make the purcahse instead of them making the purchase so they could avoid the paperwork or whatever other legal issue.

 

[Art Eatman]

Okay. "Actual purchaser" box on the 4473.

Then they tell you this: "Where a person purchases a firearm with the intent of making a gift of the firearm to another person, the person making the purchase is indeed the true purchaser. There is no straw purchaser in these instances."

Visualize, if you will, a few double-dates to Ruth's Chris Steakhouse...

Sometimes I wonder who's minding the store.

, Art

 

[jonmerritt]

I had one of my delivery customers ask me if I could buy them a 9mm pistol, after he asked about a good starter pistol. I said no way, go to the Sherrif and get a purchase permit, good for 1 year. Required here in Iowa for a handgun purchase. But you pretty much put your money down with your purchase permit, fill out the form and walk out with it.

 

[ar10]

but wants to use you as a cut-out who has the paper on him. Nice friend.

Exactly, don't do it.
I had a neighbor 2 houses down from me that wanted me to sell him one of my handguns. He stated he was "swamped" at work and didn't have the time to buy one at the only gun store in a 30 mi radius of where we live. I mentioned it to one of the LEO's at the range one day and asked if he could legally verify the guy's background. He could and a couple of days later called me and stated the guy had two DV convictions and he had pleaded guilty on both.
Moral is: I sell him a gun, in my view, it's a straw purchase. If I sold one to him knowing his convictions I would stand a very good chance of loosing my license and convicted of a 5th deg felony.

 

[DMF]

Let's clear up this gift issue.

If you buy a gun with your money, and give it to someone as a gift, and they give you no money or other item(s) of value, for the gun, that is a gift. You purchased it, as a gift for them, with no compensation from them for the gun.

If you buy a gun, and another person gives you some or all of the money for the gun, or trades you something else of value for the gun, either before or after the purchase, it's not a gift.

However, as I've said before, don't just take my word for it, contact a lawyer who is competent and experienced on the issue of firearms laws and ask the attorney.

 

[blkbrd666]

Just to confuse the issue: Has anyone ever been browsing the used gun case at their local shop and see a "steal of a deal" on a gun you have no use for but you just can't pass up the opportunity to get it at that great price? In your head you're thinking, "I can always get my money back on that one". So, you buy it and take it home. You show it to your best buddy and he just can't believe the deal. He wants to buy it and will give you $50 more than you paid less than 2 hours ago...so, you sell it to him.

Now, was it a straw purchase(you never really intended to keep it) or are you now a "Kitchen Table FFL"(you did see yourself making a profit on such a great deal)???

 

[TexasRifleman]

So, you buy it and take it home. You show it to your best buddy and he just can't believe the deal. He wants to buy it and will give you $50 more than you paid less that 2 hours ago...so, you sell it to him.

Now, was it a straw purchase(you never really intended to keep it) or are you now a "Kitchen Table FFL"(you did see yourself making a profit on such a great deal)???

I'd say that's not a straw purchase since you didn't have a specific buyer in mind, you just bought a bargain for yourself that you thought you could sell later. There was no intent to hide who the true purchaser was. How could there be? YOU didn't even know who was gonna end up with it, or how long it would take to move it.

 

[green country shooter]

Come on, people! Why are you so determined to decide sales are not illegal? Do you think dealers have a specific buyer in mind for every gun they buy from a wholesaler? Of course not. The intent to resell is what matters. That's what makes you "engaged in the business."

Evanprice, you seem to think you're contradicting me by saying the OP had no intent to resell. I'm not passing judgment on a set of facts. I agree that if you buy a gun with the intent to resell, you are committing a crime. I'm not willing to express an opinion about a specific set of facts because I don't believe I have all the facts.