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SCOTUS to hear Straw Purchase case

Discussion in 'Legal' started by usmarine0352_2005, Oct 15, 2013.

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  1. usmarine0352_2005

    usmarine0352_2005 Member

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    Interesting. This case decides whether a straw purchase applies to one legal person purchasing a gun for another legal person.



    Too bad they chose not to hear Woollard v. Gallagher.








    http://bearingarms.com/u-s-supreme-court-to-hear-straw-purchase-case/








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  2. Midwest

    Midwest Member

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    It went through an FFL. I see it as the FFL took possession of the gun and then logged it in his book, did the paperwork and then logged it out after the uncle passed the background check. People go through FFL's all the time to sell guns from one to another on gun broker and in person. It is not a straw purchase.

    Mr Abramski can legally transfer it to any FFL, which he did.


    "After buying the firearm, Mr. Abramski drove to his uncle’s hometown and met him at a gun store. Together, they filled out the paperwork to resell the gun. Mr. Abramski’s uncle filled out the federal background check forms and the transfer was approved. However, ATF pursued the case against Mr. Abramski for saying he was the “actual buyer” in the original sale."
     
  3. usmarine0352_2005

    usmarine0352_2005 Member

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    So it shouldn't even be going to court, no?
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  4. HexHead

    HexHead Member

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    The was the actual buyer, then resold the gun, going through an FFL. How is this possibly illegal?
     
  5. Frank Ettin

    Frank Ettin Moderator

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    This is likely to be an interesting case. For background, the Fourth Circuit opinion affirming Mr. Abramski's conviction may be found here.

    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.

    Well so far the ATF and the Fourth Circuit disagree with you, and their opinions trump yours. The Supreme Court will have the final say.

    We have a Sticky on straw purchases. We'll see if we need to revise it after the Supreme Court has ruled.

    Discussed in the Fourth Circuit opinion and our Sticky.
     
  6. bthest86

    bthest86 Member

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    Sounds like they're prosecuting a thought crime here.
     
  7. Frank Ettin

    Frank Ettin Moderator

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    Intent or state of mind is an element of many crimes.
     
  8. Pawpaw40

    Pawpaw40 Member

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    This illustrates what is wrong with universal background checks, gun registration, magazine limits and all the rest of the gun control idiot's plans. The ATF generally doesn't prosecute what most of us characterize as "criminals". The criminal class is usually prosecuted by the state for serious violations of the law. The ATF usually only targets those that the state will not prosecute, mainly to set an example, for petty stuff. A lot of them are set-up to perform illegal acts.
     
  9. Frank Ettin

    Frank Ettin Moderator

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    Well who you characterize as criminals is pretty much beside the point. Someone who violates a criminal law is, by definition, a criminal. You might not think something ought to be a crime, but so what?

    And as for you other assertions, I doubt you can back them up.
     
  10. Bighouse Doc

    Bighouse Doc Member

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    So how does this affect buying a gift for one's adult children?

    -Doc
     
  11. Frank Ettin

    Frank Ettin Moderator

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    Pretty much covered in the thread I linked to in post 5.
     
  12. billdeserthills

    billdeserthills Member

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    Easy to see the reason why the atf has gone to the trouble. The accused has taken it upon himself to be the dealer in essence, which is technically illegal in the eyes of the atf. If they win this will give them new power to enforce what has always been a gray area. Another real good reason to never speak with law enforcement without your attorney present.

    Sure seems like the atf could find something better to expend their resources on, like
    hows about finding some of those fast & furious guns they lost?
     
  13. Pawpaw40

    Pawpaw40 Member

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    Anecdotally, I have a friend who is a Deputy US Marshall in a large Midwestern city with a high crime rate inner city. One of his duties is to review the overnight arrest reports and forward those that include violations of Federal laws to the US Attorney's office. He told me that over 80% of the arrest reports that included the use of a firearm, were forwarded to the US Attorney for violations of federal firearm laws. The US attorney brought federal charges against only the ones that the state refused to prosecute. My friend told me that those prosecuted at the federal level were people who had minor felony convictions from long ago, or misdemeanor domestic violence convictions. Statistically, Chicago has one of the lowest federal prosecution rates for federal gun laws in the nation. The US Attorney for that region does not charge hardly anyone with violations of federal gun laws, despite having one of the highest gun murder rates in the nation.
     
  14. Jim K

    Jim K Member

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    As I understand it, the charge was lying on the 4473 by saying he was the actual purchaser when he had been given money by someone else to make the purchase. That does not address whether the second sale is through a dealer, if either person can legally own a gun, or the state(s) of residence of either person.

    It is like a ball player who tells a congressional committee that he does not take drugs when he does. The issue is not whether he takes drugs or whether the drugs are illegal; the issue is that he lied under oath. The same is true of a lie on a 4473, which has the same status as lying under oath.

    It is not a gift, since IIRC, the ultimate buyer put up the money. A gift is given to someone, not sold to them. To some extent, it is a matter of intent. If the gun was originally bought with the intent to resell it to someone else, then that would be a straw purchase, even if neither person was a prohibited person, and even if the second sale was through a dealer.

    If the original purchaser used his own money, and later sold the gun, it could be hard to prove that the original purchaser simply didn't like his new gun and decided to sell it. But that argument is not valid if the real buyer provided the purchase money in advance. That shows intent to violate the law.

    This is the kind of case that would probably not have been prosecuted a few years ago. But under this administration, frustrated in its desire for a near-universal gun ban, BATFE has been ordered to enforce in the harshest possible manner existing laws, to "make examples" out of even minor violators. Like the barriers and armed agents at the Washington memorials, the idea is to "make it as hard as possible" on the general public.

    Jim
     
  15. ngnrd

    ngnrd Member

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    I thought I had a firm grasp on what constituted a straw purchase, but this statement has me questioning that. If the above statement is true, why is the ATF not pursuing the sellers of all those "New, in box" AR's that popped up for sale after Sandy Hook, and were advertised (and selling) well above retail? Does anybody think they were originally purchased without the intent to resell in a frantic market?

    Is there any legal distinction between intending to sell to a particular individual, and intending to sell in general?
     
  16. Frank Ettin

    Frank Ettin Moderator

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    That was covered in this post (post 23) in the Sticky to which I linked in post 5:
     
  17. Ryanxia

    Ryanxia Member

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    Even if this is ruled that it IS a straw purchase, it wouldn't change the fact that if you buy a gun and 10 minutes later someone offers to buy it from you that's still legal. So all about how it's worded.

    I can't believe with all the real crime; rape, murder, etc. they go after two guys who are both legally allowed to own it.

    To me it kind of shows they are more concerned with tracking/registration than stopping crimes (but that's just my opinion).
     
  18. Carl N. Brown

    Carl N. Brown Member

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    The sellers of NIB ARs are not purchasing the guns from the dealer with the actual buyer's money. They are buying the guns from a dealer with their own money, keeping them NIB as an investment, and selling them later.

    If they are careful and don't over do it, they can do that. If they do that a lot, especially if they get a street rep as an unquestioning source of guns or have a gun turn up in a crime, and they may get hit with dealing in firearms without a license.

    But that is not straw purchase.

    On straw purchase, intent of congress on straw purchase was that the actual buyer can not be a prohibited person (ATF 4473 Question 11). The way the law is written, the purchaser must be the buyer of the gun, on the record the name on the 4473 must be the name of the person whose money paid for the gun, who receives the gun. Now, a buyer of a bona fide gift is the purchaser, buyer and (initial) recipient of the gun, and the utimate receiver of a bonafide gift must NOT be a prohibited person, and that gift is legal.

    If one wanted to gamble with appellate court, one could take a third party non-prohibited person's money, buy the gun as purchaser of record, and give them the gun, and if caught claim they, the purchaser and the actual buyer, were not inviolation of the intent of congress to keep guns from prohibited persons. It has been done successfully. It is very expensive. And it has never been tested at SCOTUS.
     
  19. 316SS

    316SS Member

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    I don't think it is fair to say he lied. He considered the issue of a straw purchase, and explained what he was trying to do to the FFL from whom he purchased the pistol. That indicates to me that he (mistakenly) felt justified in saying he was the actual purchaser on the 4473.

    I see no valid reason for it to be illegal for one non-prohibited person to buy a gun on behalf of another non-prohibited person. But it is. And he did it.

    Take home message: Beware! Many legal traps have been set for the unwary gun owner/buyer. Oh, and don't get legal advice at your LGS.
     
  20. billdeserthills

    billdeserthills Member

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    Actually many folks selling at gun shows have been arrested for just the thing you stated.
    It usually works like this, say you are trying to sell an expensive gun & nobody seems interested. The atf comes along & trades you two guns for your single expensive one. Now at this point If you put those two guns onto your table for sale You are arrested. I always suggest that you take whatever (guns)you may have aquired at the gun show home for at least overnight. That way you can sell it perhaps on sunday, after you have thoroughly checked it out and found a reason why it is unsuitable for your collection--Before you get busted.
     
  21. billdeserthills

    billdeserthills Member

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    He Definitely lied & then to add insult to injury he also incriminated himself before the policeman. Good lesson to be learned here, No cop is to be trusted-especially if you are a retired cop being questioned...

    Thing is if he had used his own money & then kept the gun overnight and found that he disliked his pre-owned
    gun, he could have sold it the next day Legally.
    Or if he had kept his mouth shut when authority started asking
    questions about something that woulda made my hair stand up-
    That woulda worked too
     
  22. Frank Ettin

    Frank Ettin Moderator

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    Do you have any documentation that exactly this has actually happened?
     
  23. RussellC

    RussellC Member

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    Something to note here, the case is going up by Writ of Certiorari...This is an extraordinary writ that is rarely granted...someone has their eye on this. I would be interested in the Ammicus Briefs that may have been filed for or against...

    Russellc
     
  24. Frank Ettin

    Frank Ettin Moderator

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    Nope, it's just pretty much in the ordinary course of business. That's how pretty much every case gets to the Supreme Court (with very few exceptions).

    Granting of certiorari is rare because the Supreme Court receives about 10,000 petitions for a writ of certiorari each year. Of those it grants certiorari in and hears about 70 to 80 cases, and it probably couldn't reasonably manage more than that number.

    What it does mean is that Abramski is getting some financial help or his lawyer is willing to put a lot of time and effort into the case, possibly without adequate compensation. It costs a lot of money to take an appeal to the Supreme Court.
     
  25. Carl N. Brown

    Carl N. Brown Member

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    Amicus Curiae (friend of the court brief) in support of Abramski
    www.lawandfreedom.com/site/firearms/Abramski_Amicus.pdf
    Friends include:
    o Congressman Steve Stockman,
    o Former ATF Assistant Director Robert E. Sanders,
    o Gun Owners Foundation,
    o U.S. Justice Foundation,
    o Gun Owners of America, Inc.,
    o Institute on the Constitution,
    o Lincoln Institute for Research and Education,
    o Abraham Lincoln Foundation,
    o Conservative Legal Defense and Education Fund,
    o DownsizeDC.org,
    o Downsize DC Foundation,
    o Policy Analysis Center,
    o Oregon Firearms Federation,
    o Virginia Citizens Defense League, and
    o Wisconsin Gun Owners
     
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