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Straw Purchase?

Discussion in 'Legal' started by Texan Scott, Nov 14, 2012.

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  1. 2000Yards

    2000Yards Member

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    This is where it may genuinely make a difference as to whether it is a married or unmarried couple. Either person has legal claim to the money - it's irrelevant who earned it.

    Example: Wife earns a paycheck, husband doesn't. Husband and wife go to LGS, wife points out a gun, husband fills out paperwork and pays for the gun from their joint account, then hands it to her upon exiting LGS. I imagine it would be difficult for the gov. to make a case that this was a straw purchase because her paycheck is community property (in a community property state and assuming no separate property) and he's a rightful owner. Other laws not with standing, I can see how it COULD make a difference for a married couple.

    Does anyone know whether fed. regs address this?
     
  2. Frank Ettin

    Frank Ettin Moderator

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    Remember, the crime is making a false statement on the 4473 regarding who the actual purchaser is (in violation of 18 USC 922(a)(6)). Once the first person makes that false statement on the 4473, the crime has been committed.

    So, if --

    1. X says to Y, "Here's the money; buy that gun and then we'll do the transfer to me [when I get back to town, or whenever else].", or

    2. X says to Y, "Buy that gun and hold it for me; I'll buy from you when I get my next paycheck."
    or anything similar, if Y then buys the gun, he is not the actual buyer. He is buying the gun as the agent of X, on his behalf; and X is legally the actual buyer. If Y claims on the 4473 that he is the actual buyer, he has lied and violated 18 USC 922(a)(6). His subsequently transferring the gun to X in full compliance with the law, does not erase his prior criminal act of lying on the 4473.

    Some more examples --

    • If X takes his own money, buys the gun and gives the gun to someone else as a gift, free and clear without reimbursement of any kind, X is the actual purchaser; and it is not a straw purchase.

    • If X takes his money and buys the gun honestly intending to keep it for himself and later sells it to another person, father is the actual purchaser; and it is not a straw purchase.

    • If X takes his money and buys the gun intending to take it to the gun show next week to see if he might be able to sell it to someone at a profit, X is the actual purchaser; and it's not a straw purchase. He may, however have other problems if he manages to sell the gun at the gun show, and the transfer there isn't handled properly. He might also have problems if he does this sort of thing too frequently, and the ATF decides he's acting as a dealer without the necessary license.

    • If X takes his money and buys the gun with the understanding that he is going to transfer the gun to Y and that Y is going to reimburse him for it, X is not the actual purchaser. He is advancing X the money and buying the gun for and on behalf of Y, as Y's agent. So this would be an illegal straw purchase.

    Whether or not a transaction is an unlawful straw purpose will often be a question of intent. But prosecutors in various situations can convince juries of intent, often from circumstantial evidence. A slip of the tongue, posting something on the Internet, tracks left by money transfers have all, in one way or another, and in various contexts, helped convince a jury of intent.
     
  3. bobbo

    bobbo Member.

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    ...this is why if I go to the gun shop with someone, THEY fill out the 4473. Heck, I had a NICS check run on my mother when I bought her a rifle for Christmas a few years ago.
     
  4. mgkdrgn

    mgkdrgn Member

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    Yes.

    Was the gun a "gift" to his wife, or was HE filling out the 4473 because he knew she was a prohibited person?

    Who the money comes from really doesn't even enter into it.
     
  5. k_dawg

    k_dawg Member

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    IMHO: The money should not matter. It is that the person who is going to own/have/use the firearm, is the one who filled out the 4473 form.
     
  6. blarby

    blarby Member

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    Yep, its that simple.

    Amazing, huh ?
     
  7. mgmorden

    mgmorden Member

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    That's most certainly not the case though. The ATF itself has upheld that its ok to purchase a gun as a gift to someone.

    I've done it before myself. Saw a gun last year at a good deal and knew my brother didn't have a long range hunting rifle of his own, so I bought the gun (and filled out the 4473) and gave it to him on his birthday. The gun was for him to own and use, but I paid for it with my money and gave it as a gift. That's perfectly legal and not considered a straw purchase.
     
  8. hermannr

    hermannr Member

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    WA is a community property state. I purchased an absolutely beautiful High Standard Trophy, extra lr barrels, short only kit (slide and barrels), compensator, weights, all the extras, for my wife for a birthday present a few years ago. She picked it out, I purchased it..but if you want to follow the money, I am the only earner, she has always been a housewife...even though she spends most of the money, if it is an unusual purchase we always discuss it first.

    Oh yes, as for a prohibited person,,,she is 64 years old and has neot even had a traffic violation, even though she has driven since she was 16 (in NYS BTW)
     
  9. bikemutt
    • Contributing Member

    bikemutt Member

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    Exactly. My wife has bought me several shotguns for birthday gifts, all disclosed as such to the FFLs, all legal.

    The only change I wish to make is to make birthdays a monthly affair :)
     
  10. Jim K

    Jim K Member

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    Davek wrote about entrapment:

    "That is a COMPLETELY bogus, inaccurate statement that in no way applies to this scenario even if it WERE an ATF sting. Entrapment involves the police or state MAKING you commit a crime .... "

    Well, that statement is at least a partly bogus, inaccurate statement. Entrapment does not involve coercion or force. If a person is forced to commit a crime, there is no crime. I have never heard of a case where a LEO actually forced anyone to commit a crime; maybe it has happened but it would clearly involve an illegal action on the part of the LEO.

    Entrapment occurs when a LEO does something that causes a person to commit a crime when that person had no previous intent of committing a crime. There is a often a fine line, which is why courts don't usually buy the "entrapment" defense.

    Giving a person who is pre-disposed to commit a crime (the street pusher who needs a new supply) the opportunity to do so is not entrapment.

    That is why LEO's will always make sure that the person involved brings up the idea. In the above case, it would probably be entrapment IF the ATF agent raised the issue and made the offer; making a tempting offer IS entrapment if the person had no prior intention of committing a crime. But if the other person told an ATF "friend" that he wanted a machinegun and would pay x dollars for one, there is no entrapment - the person was predisposed to commit the crime.

    So what else would entrapment be? A case of entrapment might be where a woman police officer entices an innocent male into committing a crime by making sexual promises she has no intention of keeping.

    Or where undercover police spend weeks pretending to befriend a person while enticing and persuading him to commit a crime so they can arrest him. (Such cases have happened where police believed a person was guilty but couldn't prove it.)

    Jim
     
  11. blarby

    blarby Member

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    In all of the "wife " statements- why not just have the wife buy the dang thing ?

    Assume you want to give a true gift, and not have her know about it :

    If you are the sole earner, it is your money.

    You can buy a gift, and give it to someone. Thats addressed. Thats OK.

    I can't conceive of an area where she would give you a handful of exclusively her money, and say buy me a secret gun gift. If she did, sadly, yes, thats a straw purchase.

    If you have communal property, and its a gift to your spouse, .......... Its also your property.

    However, names go on forms in federaly land, and federaly land in this instance doesn't support communal property. If you have communal assets, this would be impossible to prove. Thats why there are no cases of this, as pursuing it is not in the spirit or intent of the law. IF you can find one- show it to me.... I will print this thread in entirety, eat it, and video tape it to put on youtube. Guaranteed.

    Straw purchase is not difficult to understand. Its just not.

    Give every scenario you want, one by one, and lets go over them- you can see and address each one very easy.

    Straw gifting does not exist.

    Straw purchasing. Does.

    If you wink wink and nod nod it, you can do amazing things. But thats not the intent.

    Of all of the byzantine gun regulations, this is perhaps the easiest one to follow.

    Frank made about the plainest explanation possible- read that again please !
     
    Last edited: Nov 16, 2012
  12. HankB

    HankB Member

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    Married couple finances are usually so thoroughly co-mingled it would be extremely difficult to say one paid for a firearm with "the other person's" money - if anyone can cite a case of such a prosecution where neither party was a prohibited person, please do so.

    I also have very strong reason to believe that in some instances a parent buys a firearm on behalf of Junior who has earned money bagging groceries, delivering newspapers, or whatever, but not being 18, is ineligible to purchase a firearm himself so Mom or Dad has to do the paperwork . . . but Junior pays. Again, unless Junior goes on to do something nefarious, I'd like a cite of a case in which Mom or Dad was prosecuted as a straw purchaser for filling out the paperwork for a gun bought with Junior's money. (An argument can be made that Junior's cash = parent's cash.)

    The law's been on the books for decades, and in a nation with 330,000,000 people, there must be multiple instances of prosecution where examples like those above have been prosecuted . . . if it's actually a concern.
     
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