Receiving gun from a soon-to-be felon, advice needed.

[Sheepdog1968]

Sounds like it may be a problem worth avoiding. Do you really want, need these firearms? I know it's not a popular answer. Just a thought.

 

[baylorattorney]

I don't see how he kept his weapons prior to the plea deal. Once charged, he should have become a prohibited person. What is the deal?

 

[Bubbles]

I think the rule is if the asset was given specifically to hide the asset from the court. In your case, this would not be true as the government is forcing him to dispose of (gift) these assets.

The problem is he's dealing with two different court systems, and one may not give a rat's patoot what the other says. The federal criminal court is saying "get rid of the guns, you're now a prohibited person" while the VA state civil court may say "You gave away valuable assets just before filing BK? Do over!"

IANA lawyer but it seems to me the wisest course of action for the OP's friend to take would be to find a local FFL and sell or consign the guns through him, and use the cash to pay off his debts. That way he would have a paper trail so he could show the feds where the guns ended up, and he could show the BK court that he wasn't trying to hide anything and received fair market value for his guns - as long as he can show that cash was used to pay down debts or listed as part of his BK stuff.

 

[rajb123]

Typiicallly, gifts or sales made 3 months or less before a bankruptcy are presumed to be fraudulent transfers of assets and the debtors and courts usually pursue these; right?

 

[FIVETWOSEVEN]

I don't see how he kept his weapons prior to the plea deal. Once charged, he should have become a prohibited person. What is the deal?

I thought you only lost your rights through conviction regarding criminal acts, not just simply being charged.

 

[baylorattorney]

Wrong, federal law is if you are charged (indicted) with a crime and face the possibility of a year in prison, you are prohibited from transferring those guns. Its a catch 22 kinda and still a bit unclear This prior to any determination of guilt or innocence.
See:
4. The federal gun ban includes some people who are only under indictment! Anyone who is "under indictment for a crime punishable by imprisonment for a term exceeding one year" is not allowed "to ship or transport . . . any firearm or ammunition or receive any such firearm or ammunition." 18 U.S.C. § 922(n).

Notice "possession" isn't listed in the above, but transport and ship are not defined and merely possessing them could be a violation.

 

[baylorattorney]

Perhaps in this case the man wasn't yet indicted and plead on an "information" alone. This is the only way he could possibly posses weapons and transfer them, but he'd have to transfer them prior to the plea. I think I read here that part of the plea deal was to circumvent this federal law, but I don't believe prosecutors have authority to circumvent federal law. Idk

 

[baylorattorney]

"Part of his plea agreement is to become a cooperating witness for the feds against another person involved in the same scheme, who apparently the FBI wants to see in jail for a long time.<br />
<br />
Obviously he will soon be a felon and lose his 2A rights. He has a massive gun collection. As part of the deal, he is allowed by the the FBI to give his collection away, and I am receiving about a third of it, although"

So if he already pled guilty, he is already a prohibited person for possession AND transfer of guns and ammo. The Attorney General Eric Holder is the only one who could approve this circumvention of the law to allow these transfers to occur post conviction. So if Eric Holder is involved, it could quite likely be the absolute truth as stated. Lol

 

[Jim K]

Bikemutt,

It has happened. When an LEO is asked if it is OK to so such and such and says "we have no problem", what he means is that the action is not illegal under the laws he is charged with enforcing. As to the laws someone else, or some other agency, is charged with enforcing, that is someone else's problem.

Jim

 

[Telekinesis]

So if he already pled guilty, he is already a prohibited person for possession AND transfer of guns and ammo.

He might have made the agreement with the feds and just not have been brought before the court to plead yet. That would keep him from being a felon in possession, but idk about the transport. Maybe he is having a friend or family member actually transport the weapons? That seems like it would satisfy the law.

He is not prohibited from transferring the firearm, only receiving or transporting the firearm (in interstate/foreign commerce).

18 USC 922 (n)
It shall be unlawful for any person who is under indictment for a crime punishable by imprisonment for a term exceeding one year to ship or transport in interstate or foreign commerce any firearm or ammunition or receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

To the OP: if possible, try and see if your friend can stall/put off declaring bankruptcy for as long as possible. I believe (though am not positive) that there is a limit to how far back a bankruptcy court can go to reverse transactions. I don't think the court would be able to go after the guns, but you never know. Definitely get a lawyer knowledgeable in this field.

 

[essayons21]

Ok I will try to answer some questions.

I have already received about a third of the guns I am going to get. The next loads will occur over the next few weekends, as I have to work and he lives pretty far away.

My "friend" is my future father-in-law. Sentencing will be about the time of the wedding... hell of a present for his daughter. So that complicates simply refusing the firearms. Many have family or sentimental attachments.

He has plead guilty and is no longer in possession of the firearms. The remainder that I will get are being temporarily kept by a person who lives nearby and is also receiving guns.

He can't sell them to a FFL for a variety of reasons that some have mentioned.

I'm pretty comfortable at this point that there are no violations of criminal law. His personal bankruptcy will probably also not occur for more than 90 days, at the very least I won't do anything with the guns until that occurs. This certainly isn't an attempt to shelter his assets as no money is going back to him. I have been in contact with an attorney in the family (the non-felon side ) who specializes in tax law, and there are no issues with gift taxes.

I should be in contact with an agent working the case tomorrow so hopefully I can get some more answers.

ETA: A bankruptcy court going after guns as assets seems incredibly complicated. If a investor gets a lein against the guns, who supervises that transfer? How do you transfer guns to a corporation? Who determines that they are not a prohibited person? Not to say that it couldn't happen, it just seems crazy.

 

[baylorattorney]

You are learning that Gun laws, federal, are murky waters to say the least. Perilous even. Like most things federal, they mean what they want them to mean when they want them to mean it and for whom as well. With such vagueness and ambiguity, NTM discriminatory application, they don't pass real constitutional muster.

 

[Rmeju]

ETA: A bankruptcy court going after guns as assets seems incredibly complicated. If a investor gets a lein against the guns, who supervises that transfer?

If they get a lien, but your father-in-law has not filed bankruptcy, the investors could simply have the local sheriff levy via a "writ of execution" which authorizes the sheriff to seize the named assets, which would presumably be the guns. If multiple parties have such liens, then it gets very sticky about which party can actually levy.

If he has already filed for BR protection, then it gets more complicated. State authorities, such as the local sheriff, cannot come after those assets via a writ of execution. The guns' fate would be decided by the BR court.

If the creditors have a perfected security agreement with your father-in-law (or the relevant business he was in charge of) that covers the guns, then the creditors are probably more likely to spend time tracking them down, especially if they have the most senior lien(s), because that will mean that they get paid the full value of those guns when they are sold, instead of only getting a tiny, pro-rata share of their value that "unsecured creditors" get (like 5%).

This all assumes that those creditors even have a legal claim on the guns, which they very well may not. And, it's just a tiny fraction of the whole story. This could get very complicated for you. You might consider talking to a bankruptcy lawyer, or a creditors remedies & secured transactions lawyer.

 

[DammitBoy]

I'd be surprised if any bankruptcy court wouldn't look at your "transaction" with your future father-in-law as collusion to hide assets.

It's possible that this thing could land you in very hot water.

 

[Frank Ettin]

Here's another one I, as a lawyer wouldn't begin to try to sort out over the Internet.

[1] In these sorts of deals, the details matter; and we don't have all the details. If I were working on this professionally, I'd want to read all the documents involved and talk with the prosecutor about how this has all been set up and what's on the horizon as far as the civil forfeiture proceedings.

[2] Depending on how this is all set up, and the timing of everything, if the friend files bankruptcy, his creditors might try to set aside the gifts of his gun collection as a preferential distribution. I don't have enough information to begin to assess whether or not they might have a decent case, but if enough money is involved, and the creditors are coming up too short, they might take a run at it. If they do, the OP will find himself in some litigation in the bankruptcy court if he wants to keep the guns.

[3] There may well be income tax issues for the OP. Gifts are income.

[4] Then there are the usual problems with asking for advice about real life, personal legal problems from a bunch of anonymous strangers. They may or may not know what they are talking about, and this is a public place. These matters need to be discussed with one's own lawyer in private -- where it's all confidential.

[5] Yes, lawyers are expensive. How much are the guns worth? And in general, paying a lawyer to help keep you out of trouble is a lot less expensive than paying a lawyer to try to get yourself out of trouble.

 

[Byrd666]

I'm no lawyer, but, seeing as how the Feds themselves ok'd the transfer of property from him to you, it is just that. Your property. Not his.

They can sue your friend for every thing he has, not what he doesn't.

Ask a real attorney to be dead certain of the civil and criminal laws and codes.

 

[Frank Ettin]

I'm no lawyer, but, seeing as how the Feds themselves ok'd the transfer of property from him to you, it is just that. Your property. Not his....

I am a lawyer, and I wouldn't dream of saying anything like that based on the limited information we have.

 

[gym]

I was appointed custodian for a manager of mine who went to federal prison, for a 1 yr sentence, about another business involving "realestate sales", His attorney drafted a letter and I took posesion of his Barretta. After he got out, he asked if he could have me sell the gun and they agreed, I then just gave him the check, all legal. It was locked up in the safe in my business, and he had his job waiting for him when he got out.
The actual bosses he worked for never got any time.
He did all of this prior to his sentencing or verdict, they basically told him what he could expect if he pleaded guilty.

 

[coolluke01]

I would at least buy them for a dollar. A gift can be retracted passing money from one to another is a binding deal.

 

[Frank Ettin]

...passing money from one to another is a binding deal.

Not necessarily, especially in bankruptcy court.

 

[mgkdrgn]

To the OP

Bottom line, you are being dropped into the middle of a krapstorm. And there is no krapstorm like a family krapstorm.

Best of luck to you.

 

[DMF]

Something is missing from the original story.

. . . he is allowed by the the FBI to give his collection away . . . even though he was ordered to transfer them out of his possession as gifts by the FBI.

He can also be allowed to make arrangements to sell the collection. The FBI cannot force him to "gift" his property to anyone. IF there was a civil or judicial forfeiture order from a federal court that process would be enforced by the USMS not the FBI. I find it extremely odd that someone facing severe financial hardship, which may include restitution and fines, would choose to "give away" tens of thousands of dollars in assets, rather than sell those assets to pay his looming debt.

 

[Jumping Frog]

Several have mentioned "gift tax".

The person that pays the gift tax is the person who made the gift, not the person who receives the gift. It is not income to the gift recipient.

Conversely, if a relative "loans" you money with interest owned, and then you default on the loan where the relative forgives the loan, then it is a tax loss to the lender and the forgiven loan is now income to the recipient.

 

[Frank Ettin]

...The person that pays the gift tax is the person who made the gift, not the person who receives the gift. It is not income to the gift recipient...

Gifts of cash are not taxable as income to the recipient. But if the gift is an appreciated asset, like perhaps a valuable gun which has increased in value, the gain might be taxable were the recipient to sell it. Of course that might create issues determining that proper basis.

 

[armoredman]

What an interesting kettle of fish! When it's all over, how about raffling off some of them you don't want and donating the proceedings to your local firearms rights outfits?
Like you said, hell of a wedding present...wow...