Legal Ownership and Straw Purchases: SCOTUS

[JohnKSa]

So it's my practice to document business/financial transactions.

I document my firearm sales by moving the gun to the sold tab in my inventory spreadsheet and adding a notation indicating the sale price.

Of course things can get dicey when you document an illegal transaction.

A true statement. Your comment about doing the research is also apt, but both of the statements are wanting in terms of practicality for the average (or even the above average) person who is not a lawyer. It's a rare person who intentionally documents illegal transactions. The problem (as in this case) is that people document transactions they believe to be legal but end up being mistaken. This topic is relatively simple, but it should be pretty obvious from the comments on this thread that even gun enthusiasts often do not adequately understand the law or its ramifications.

The only way to really insure that you're not documenting an illegal transaction is to engage the services of a lawyer, or to do a really significant amount of research to try to get a good grasp on the particular legal topic (and all significantly related legal issues) in question. Maybe that's practical for some folks, but it's clearly beyond the pale for the average gun owner.

Let's say I add a date column to my spreadsheet. Now I've created the potential for someone to mine that data to try to provide evidence against me that I'm selling enough in a short enough period to accuse me of being an unlicensed dealer. The authorities would have had to do devote effort and funds to surveillance to gain that kind of information otherwise. It's highly unlikely that something like that would have ever come to their attention if I didn't provide it.

Let's say I add a buyer column to my "sold" tab on the spreadsheet and one or more of the buyers end up being a prohibited person. I can tell the authorities that I don't have to verify that buyers aren't prohibited, so I haven't broken the law, but how does that make me better off than if I just told them that I don't have to keep a BoS in the first place so I don't know who I sold it to?

Finally, most of what people consider to be "documentation" is easily faked. Short of doing all BoS' through a notary or using an FFL for all private transfers, none of the documentation provided would carry significantly more weight than the information in my spreadsheet tab, or, for that matter, my spoken claim that I sold the gun.

IMO, if the answer is that you don't have to do X, and doing X could potentially provide evidence against you, then, IMO, the average, non-lawyer is better off NOT doing X than assuming that doing it isn't going to be problematic.

 

[giggitygiggity]

I would argue that he bought the gun for himself. There is nothing to say how long he has to own it. Maybe he did buy it for himself and then a second after he bought it, he decided to give it to his uncle. What if 10 years after he purchased it, he decided to give it to his uncle? My point is that the spirit and intent of the law is that someone doesn't buy a gun that they can legally own and then give it to someone who is not allowed to own it (ie: a straw purchase).

 

[wildbilll]

The whole straw man thing seems to have some grey areas. But in this instance I can see why they decided to proceed against him.

Lessons learned from this guy's situation:

1. Do not accept a payment from someone else in advance of your purchase of said firearm.
2. Do not keep any financial record of the transaction that indicates that payment was made for said firearm in advance of it's purchase by you on their behalf.

I can see where, with a lack of any supporting documents, it would be difficult for the government to prove that you purchased a firearm for someone else.
Only you and the ultimate buyer would truly know if a fraudulent entry was made on the 4473.
In this instance, the case was wrapped up in a nice package with a bow on top for the prosecutors by the defendant.

With no other records indicating differently, it seems that it could just as likely be that you bought a gun and afterwards you got buyers remorse and sold the gun.

I understand why he did what he did, to get the discount. Another argument would be that he did not transfer the gun to his uncle. He transferred it to the other FFL. It's the other FFL that transferred it to the Uncle.
But I think he is hosed due to the fraud on the form.

 

[Frank Ettin]

....Finally, most of what people consider to be "documentation" is easily faked. ....

IMO, if the answer is that you don't have to do X, and doing X could potentially provide evidence against you, then, IMO, the average, non-lawyer is better off NOT doing X than assuming that doing it isn't going to be problematic.

As you wish.

But it's still been my experience in the course of my career that folks make more trouble for themselves with no or poor documentation than with good documentation. Even routinely keeping a diary with what, where, when, how much, and with whom, will be given greater weight than one's vague recollection. And it's not necessarily a matter of evidence against you.

Understanding the law can sometimes be difficult. But at least in connection with many of the things we discuss here there's lots of information available. Sometimes being safe is primarily being conservative. Folks seem to get into trouble when they take a little information and then try to push the envelop.

I would argue that he bought the gun for himself. There is nothing to say how long he has to own it. Maybe he did buy it for himself and then a second after he bought it, he decided to give it to his uncle....

Yes, you might argue that; but why do you think it would do any good? Since the Fourth Circuit Court of Appeals affirmed Abramski's conviction, I don't see any good reason to believe that line of argument would be helpful.

And since two other courts of appeals affirmed similar convictions, it sure looks like you'd be fooling yourself if you thought that kind of argument means anything.

 

[NickEllis]

Frank, how does the circuit system affect behaviour with these things? If I live in the circuit that agreed the ATF overstepped in the form, does that provide case law in that circuit covering the resale to a nonprohobited person?

Obviously once SCOTUS rules this summer it will provide overarching caselaw to all the circuits, but I'm trying to understand the system more generally.

 

[Frank Ettin]

Frank, how does the circuit system affect behaviour with these things?...

The rulings of a Circuit Court of Appeals are controlling precedent in that Circuit.

So, for example, if Abramski had been a resident of Texas (Fifth Circuit) his misrepresentation on the 4473 would not have been "material" based on U.S. v. Polk, 118 F.3d 286 (C.A.5 (Tex.), 1997).

If Abramski had been a resident of Florida (Eleventh Circuit), his misrepresentation on the 4473 would have been "material" based on United States v. Frazier, 605 F.3d 1271 (11th Cir., 2010).

When there is no prior ruling in a Circuit on point, a trial court faced with the question must decide. It may consider rulings in other Circuits as influential. And then if the question goes to the court of appeals in that Circuit, that court will make its own ruling which will then become controlling in that Circuit.

 

[JRH6856]

it should be pretty obvious from the comments on this thread that even gun enthusiasts often do not adequately understand the law or its ramifications.

Understanding the law, (both statute and case) can often be pretty easy. It is the ramifications that are problematic because attorneys, both prosecuting and defense, are always looking for new ramifications in order to make the law work for their respective sides. it's why we have courts, especially appeals courts. and why well grounded arguments are important.

 

[Arkansas Paul]

I would argue that he bought the gun for himself. There is nothing to say how long he has to own it. Maybe he did buy it for himself and then a second after he bought it, he decided to give it to his uncle.

That would have had to be argued at the original trial. They don't look at new evidence on appeal, they're basically saying that the decision should have been different as a matter of law.
Frank, correct me if I'm wrong there.

 

[HexHead]

If you accept money from someone before you purchase a gun to give to them, you are not the actual purchaser. If his uncle gave him the money to buy that gun at a discount for him and he checked "Yes" on question in question, he lied on the form. While I doubt there was any criminal intent here, just trying to help out a relative with a discount, it was still a crime.

 

[Frank Ettin]

I would argue that he bought the gun for himself. There is nothing to say how long he has to own it. Maybe he did buy it for himself and then a second after he bought it, he decided to give it to his uncle.

That would have had to be argued at the original trial. They don't look at new evidence on appeal, they're basically saying that the decision should have been different as a matter of law.
Frank, correct me if I'm wrong there.

That's correct. But let me take it a few steps further.

1. People are often very glib about what they would argue. But they consistently fail to recognize that it's not so much a matter of what they could argue. It's a matter of whether anyone would pay attention.
   
   
2. You might have a very pretty exculpatory argument; but without evidence to support it and to allow the argument to stand up against the prosecution's evidence and theory of the case, it's meaningless.
   
   
3. So if the prosecution has some solid evidence that X bought the gun on behalf o Y, as Y's agent (and if he didn't, X wouldn't be on trial), X merely saying, "No, I bought the gun for myself" probably isn't going to get him too far.
   
   
4. If you read the Fourth Circuit decision in Abramski, you'd see that the court of appeals points out that the facts underlying Abramski's conviction were undisputed. There was clearly substantial evidence that Abramski bought the gun on behalf of his uncle, as his uncle's agent. Indeed this was a procedural case, not a jury trial.
   
   
   • At the start of things, Abramski moved in the District Court (the trial court level) to dismiss the charges and suppress certain evidence.
     
     
   • When the District denied those motions, Abramski entered a guilty plea.
     
     
   • He then appealed on the basis the the District Court erred as a matter of law by denying Abramski's motions.
   
   
5. So throughout those proceedings there was never any doubt that Abramski did not buy the gun for himself.

 

[Sebastian the Ibis]

throughout those proceedings there was never any doubt that Abramski did not buy the gun for himself.

This is what makes this case so unique. The government spent a ton of $$ and man hours investigating this guy - for a bank robbery, which he was cleared of. There are, hopefully, not too many cases where the government searches a purchaser's home and bank records for a check which says "$400 for the Glock you are going to buy for me." Taking a check ahead of time makes it pretty easy for the government to cut through the - I-didn't-decide-to-sell-it-to-him-afterwards argument.

On a separate note, I love this at the very end of the transcript:

JUSTICE BREYER: Yes. But the other

20 problem -- we're back to the language. The -- there -*
21 they say your client, you know, falls within the

22 language and you say he doesn't. Is it -- all right.

23 Forget it.

It's not often that you get a Supreme Court Justice tongue tied.

 

[barnbwt]

"It's not often that you get a Supreme Court Justice tongue tied."
I imagine it's usually when the law doesn't make any sense (fancy that?)

TCB

 

[goalie]

My issue with the entire case and the BATFE's "addition" of questions, not to mention the complete 180 of their interpretation, is idea that buying a gun for someone else, THEN TRANSFERRING IT TO THAT PERSON THROUGH AN FFL, thus ensuring that they are not a prohibited person, is illegal.

 

[dogtown tom]

goalie My issue with the entire case and the BATFE's "addition" of questions, not to mention the complete 180 of their interpretation, is idea that buying a gun for someone else, THEN TRANSFERRING IT TO THAT PERSON THROUGH AN FFL, thus ensuring that they are not a prohibited person, is illegal.

The crime occurred when Abramski lied on the 4473 at the original purchase.........what he does after that doesn't change that fact.

 

[goalie]

The crime occurred when Abramski lied on the 4473 at the original purchase.........what he does after that doesn't change that fact.

That is my point. Other than for backdoor registration purposes, why does .gov GAF in the first place?

Make the question something like: "do you intend to re-sell this firearm to a prohibited person or in an illegal manner?"

 

[dogtown tom]

goalie

Quote:
Originally Posted by dogtown tom View Post
The crime occurred when Abramski lied on the 4473 at the original purchase.........what he does after that doesn't change that fact.

That is my point. Other than for backdoor registration purposes, why does .gov GAF in the first place?

Make the question something like: "do you intend to re-sell this firearm to a prohibited person or in an illegal manner?"

It makes no difference, the Form 4473 is a record of a firearm transaction between the actual transferee/buyer and a licensed gun dealer.

As Abramski WAS NOT the actual transferee/buyer he lied when he completed and signed the form. Whether he intended to resell it to a prohibited person or in an illegal manner isn't an issue.

The moral of this story is don't buy guns on behalf of others with their $$$$.

 

[denton]

Whether Abramski broke the law by lying on his 4473 is very much open to dispute.

Apparently, it is only against the law to lie in supplying information that the FFL is required to keep. One of the questions that the Supreme Court has chosen to answer is whether the "actual buyer" question falls within that definition. We may well get a decision that says that ATF exceeded their lawful authority in even asking this question.

The Supreme Court is essentially saying that question is not settled at this time.

The other issue that the Justices pursued during orals is that given the exact same law, ATF has issued two opposite interpretations (1979 and 1994). Under one interpretation, Abramski is guilty and under the other he is not. Abramski's attorney pursued this vigorously during his rebuttal, following cues supplied earlier by the Justices. If there are two valid interpretations of the law, a defendant is entitled to the one that most favors him. If ATF attorneys can look at the same set of facts twice, and get two opposite conclusions, then there probably are two valid interpretations, and one of those favors Abramski's case.

I don't pretend to know how this is going to turn out.

 

[dogtown tom]

denton Whether Abramski broke the law by lying on his 4473 is very much open to dispute.

Apparently, it is only against the law to lie in supplying information that the FFL is required to keep.

Well, since the dealer keeps the 4473 it must be against the law huh?

The other issue that the Justices pursued during orals is that given the exact same law, ATF has issued two opposite interpretations (1979 and 1994). Under one interpretation, Abramski is guilty and under the other he is not. Abramski's attorney pursued this vigorously during his rebuttal, following cues supplied earlier by the Justices. If there are two valid interpretations of the law, a defendant is entitled to the one that most favors him.

Not necessarily. Regulations for all federal agencies change often. A number of Federal gun laws were passed between 1979 and 1994. Heck, the 4473 itself changes every few years.

If ATF attorneys can look at the same set of facts twice, and get two opposite conclusions, then there probably are two valid interpretations, and one of those favors Abramski's case.

Unlikely. Just because "A" was allowed in 1979, doesn't mean that "A" is allowed in 2014.

If it was then you could argue that Californians can have the same toys we do in Texas.

 

[JRH6856]

Well, since the dealer keeps the 4473 it must be against the law huh?

Only if the law requires it. And federal agencies do not make laws.

 

[denton]

JRH6586 nailed it.

Agencies can be delegated rule making authority, and the rules can have the effect of law. But they have to stay within the authority granted by statute. ATF may not have done that.

 

[Frank Ettin]

Whether Abramski broke the law by lying on his 4473 is very much open to dispute....

That is what this is all about.

Had he been in the Fifth Circuit, he would not have, based on United States v. Polk, 118 F.3d 286 (5th Cir. 1997). Had he been the Sixth Circuit or Eleventh Circuit, he clearly would have violated the law, based on United States v. Morales, 687 F.3d 697 (6th Cir. 2012) and United States v. Frazier, 605 F.3d 1271 (11th Cir. 2010), respectively.

But Abramski was in the Fourth Circuit, and that court apparently had not previously addressed the question. When Abramski asked the Fourth Circuit, that court decided that he had violated the law.

So now it's up to the Supreme Court to decide.

Well, since the dealer keeps the 4473 it must be against the law huh?...

Only if the law requires it. And federal agencies do not make laws.

Well Congress has said, by statute, that the Attorney General may adopt regulations regarding the maintenance of records by a licensed dealer (18 USC 923(g)(1)(A)):

(g)

(1)

(A) Each licensed importer, licensed manufacturer, and licensed dealer shall maintain such records of importation, production, shipment, receipt, sale, or other disposition of firearms at his place of business for such period, and in such form, as the Attorney General may by regulations prescribe...​

And the Attorney General has adopted regulations requiring dealers to maintain 4473s (27 CFR 478.129(b)):

(b) Firearms transaction record. Licensees shall retain each Form 4473 and Form 4473(LV) for a period of not less than 20 years after the date of sale or disposition....

 

[joeschmoe]

http://www.reginfo.gov/public/jsp/Utilities/faq.jsp

Q. What is a regulation?

A. A regulation is a general statement issued by an agency, board, or commission that has the force and effect of law. Congress often grants agencies the authority to issue regulations. Sometimes Congress requires agencies to issue a regulation; sometimes Congress grants agencies the discretion to do so. Many laws passed by Congress give Federal agencies some flexibility in deciding how best to implement those laws. Federal regulations specify the details and requirements necessary to implement and to enforce legislation enacted by Congress.

Q. What is the rulemaking process?

A. Federal regulations are created through a process known as "rulemaking," which is governed by the Administrative Procedure Act (APA) (5 U.S.C. Chapter 5). Click here for a graphical illustration of this process.

Once an agency decides that a regulatory action is necessary or appropriate, it develops and typically publishes a proposed rule in the Federal Register, soliciting comments from the public on the regulatory proposal. After the agency considers this public feedback and makes changes where appropriate, it then publishes a final rule in the Federal Register with a specific date upon which the rule becomes effective and enforceable. In issuing a final rule, the agency must describe and respond to the public comments it received.


Q. What is the Administrative Procedure Act and why is it important?

A. The APA governs the process by which Federal agencies propose and establish new regulations. The APA generally requires agencies to provide public notice and seek comment prior to enacting new regulations. The APA also lays out the process for judicial review of rules in federal court

 

[denton]

As I've said, I have no idea what SCOTUS will rule. I expect surprises.

But I disagree with Frank that it is all that clear that the AG acted within his authority. If it were clear, there would be no question for the Supreme Court to answer.

The statute says that the AG may specify how long the records must be kept, and it says that the AG can specify the form of the records. It's not all that clear to me that this allows the AG to specify the content of the records. Maybe it does, and maybe it doesn't. The government's attorney certainly vigorously argued that it does.

We've hired 9 top tier judges to work on the issue, and about next June they will resolve the matter. I do hope that we are mostly pleased with their ruling.

 

[Frank Ettin]

http://www.reginfo.gov/public/jsp/Utilities/faq.jsp

Q. What is a regulation?...

Okay, but so what?

The issue here isn't whether the regulations regarding the maintenance of records by an FFL were adopted according to proper procedure. The question of whether the "actual buyer" question is proper is a different matter.

Abramski's view is set out in his brief. And that brief discussed Abramski's view of the history of the development of the "actual buyer" question. Even Abramski acknowledges that the so called "straw purchaser doctrine" was created by the courts, not ATF (pg 6):

...in an effort to effectuate what these courts perceived as the congressional intent of the Gun Control Act, they created the straw purchaser legal fiction, which treats the ultimate recipient of a gun as the “actual buyer... As the Ninth Circuit has explained, this legal fiction uses a common law agency principle to criminalize straw purchases under the laws governing false statements to gun dealers...

The government's view is set out in it's brief.

...But I disagree with Frank that it is all that clear that the AG acted within his authority. If it were clear, there would be no question for the Supreme Court to answer...

Nonetheless, the AG's view has also been upheld by three federal Circuit Courts of Appeal. And accordingly, one of Abramski's core contentions is not that the AG exceeded his authority, but rather that (pg 24):

1. The straw purchaser doctrine is an impermissible judicial expansion of a criminal statute.​

This Court has never considered, much less endorsed, the straw purchaser doctrine created by the lower courts. As explained below, that doctrine should be rejected because it improperly expands an unambiguous criminal statute....

 

[gc70]

The amicus brief of 26 states presents a different perspective on the case:

The United States, through purely executive action, seeks to unlawfully create federal regulation of private intrastate firearms transfers between two individuals who are legally permitted to possess firearms. No federal law directly prohibits or regulates such private transfers. Instead, the States regulate those transactions to the extent their citizens deem necessary and appropriate.

According to the United States, two statutes concerning representations made to federally licensed dealers may be broadly interpreted to prohibit all “straw purchases” and therefore indirectly regulate such private intrastate transfers.