Tuesday, June 17, 2014

Since there seems to be some confusion...

...regarding what constitutes a "straw purchase", it's pop quiz time here at VFTP!

Let's say I have an imaginary friend named Joe Blow. Joe is a deacon in his church, a school teacher, an Eagle Scout, and an all-around pillar of the community. He has never had so much as a speeding ticket, and is a fellow resident of the Great State of Indiana.

Now, envision the following two scenarios:
  1. Joe hears that ABC Arms, a gun store near me, has a sale on Blastomatics. Since Joe lives a few counties away, he says to me "Hey, Tam, can you go buy one of those Blastomatics for me? I'll cut you a check to reimburse you and throw it in the mail tomorrow." I go to ABC Arms and buy him the Blastomatic.
  2. Joe hears that a friend of his who lives near me has a Blastomatic for sale. He calls me up: "Hey, Tam, can you go buy that Blastomatic from Fred for me? He wants to do cash face-to-face. I'll cut you a check to reimburse you and throw it in the mail tomorrow." I go to Fred's house and buy him the Blastomatic.
Which of these two scenarios was the federal felony colloquially known as a "straw purchase"?

The answer is "#1". In both cases it could be argued that I am not the actual buyer, but only acting as an agent for the real purchaser, but only in one of them could it be argued that I had committed a federal crime because a "straw purchase" is a crime that consists solely of perjuring yourself on question 11.a on Form 4473(pdf):
Are you the actual transferee/buyer of the firearm(s) listed on this form? Warning: You are not the actual buyer if you are acquiring the firearm(s) on behalf of another person.
It is not, as I am seeing elsewhere on the 'net, "when you purchase for a buyer you know or suspect to be ineligible."

The BATFEIEIO's own "Don't Lie For The Other Guy!" ad campaign only muddies the water by making people think "Well, Joe Blow's not a crook! He could pass a background check!" 

Abramski was an attempt to get the court to strike down part of GCA '68. It failed. The defendant could have been a more sympathetic one, but sometimes you wind up in SCOTUS with the case you've got, not the one you want.
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35 comments:

Lazy Bike Commuter said...

Makes me wonder if soon they'll come down on someone buying a gun for their spouse, or when both buy a gun, coming down on them for putting it on one 4473.

Tam said...

Out of curiosity, have you read the explanation in the back of the 4473?

Lazy Bike Commuter said...

I have, but it's... been a while.

Matt W said...

From the back of the 4473:

"You are also the actual transferee/buyer if you are legitimately purchasing the firearm as a gift for a third party."

Just don't turn around and charge your wife for the gun and you're kosher ;)

benson said...

Excellent post. Concise and informational.

Jake (formerly Riposte3) said...

The .gov's own inconsistency on this issue sure doesn't help the confusion. As Scalia pointed out in his dissent:

Consider the following scenarios in which even the Government regards the man at the counter as the “person” to whom the dealer “sell[s]” the gun:
[...]
Guns intended for resale.Introducing money into the equation does not automatically change the outcome. The Government admits that the man at the counter is the true purchaser even if he immediately sells the gun to someone else. And it appears the Government’s position would be the same even if the man at the counter purchased the gun with the intent to sell it to a particular third party, so long as the two did not enter into a common-law agency relationship. [Abramski v. US, 573 U. S. ____ (2014), Dissent, pp. 7-8. Emphasis mine.]

So the question becomes, at what point is "agency" established? Abramski seems to have fallen afoul of that test (seemingly never before used) because his uncle gave him the money beforehand, which he then used for the purchase. Maybe he would have been safer (or at least won in court after spending thousands on lawyers) if he had bought it with his own money and then "sold" it to his uncle?

Or, maybe, he would have been screwed either way because the .gov was gunning for him after they failed to tie him to a robbery?

Yrro said...

I've always wondered... is it legal if I have buyer's remorse in the parking lot, and sell it to my buddy when I get home?

Seems like such a bizarre and minor distinction. I'm kind of disappointed in Kennedy.

Tam said...

Jake,

The difference is this:

1) I buy the gun thinking "I bet I could sell this to Jake." Not acting as your agent.

2) Jake saying "Go buy that gun and I'll pay you for it." Me acting as your agent.

Nobody's saying it's fuzzy. The dissent turns on the fact that it's inane to have one be illegal and the other not.

Condition: Ready said...

The dissent is much better written than the opinion because the dissent looks at the law while the opinion attempts to change the law to suit the "intent" of Congress. I don't want the courts interpreting the law to do what Congress meant to do but to stick with the plain text of the law.

Interestingly, in the dissent, Scalia writes:

"Introducing money into the equation does not automatically change the outcome. The Government admits that the man at the counter is the true purchaser even if he immediately sells the gun to someone else. Tr. of Oral Arg. 34-35. And it appears the Government's position would be the same even if the man at the counter purchased the gun with the intent to sell it to a particular third party, so long as the two did not enter into a common-law agency relationship.

So, Scalia is basically arguing that the Government claims that as long as I didn't agree to act as your agent in buying the gun then it's perfectly legal for me to claim to be the purchaser even if I intend to immediately sell it to another specific person. I could even walk out of the store immediately after purchasing the gun and sell it to you in the parking lot - if it was legal in your particular state.

So, who wants to test this hypothesis:

You call me up and say, hey, I've been looking for a Blastomatic and if you find one I'll buy it from you.

I then go to my local store, find a Blastomatic, buy it and then sell it to you. Scalia believes the government testified that this is perfectly O.K.

So long as I wasn't acting as your agent when I went into the store then it's perfectly legal. So, does acting as your agent mean you gave me the money before hand, that you gave me specific instructions about how much to pay and which one to buy or some combination of the above?

It's truly dangerous when courts now allow regulatory agencies to create their own law and the court's uphold those laws based on what Congress must have meant to do rather than what they actually wrote.

Scott J said...

What I find inane is having to do a 4473 if my pa-in-law in another state wants to give me a rusty old .22 to fix up and perhaps pass on to my son one day simply because pa-in-law resides in another state.

Tam said...

Condition: Ready,

"So long as I wasn't acting as your agent when I went into the store then it's perfectly legal."

The scenario you laid out is one that has you acting as my agent. That's the very definition. Yes, I read the dissent.

mikee said...

The decision and dissent are wonderful, both, because the decision is a microcosm of liberal progressive thought versus conservative anti-statist thought.

Progs say all your rights belong to the government, and are doled out only as we see fit.

Cons say all your rights belong to you, and government infringes only as narrowly as possible to achieve a desired end.

Beyond that, there is little to say other than fraudulently getting a LEO-only price to resell a Glock to your uncle at cost is a hell of a ridiculous way to get 5 years probation.

But now the circuit split on straw buyers is sealed up in favor of law enforcement.

I will simply provide gift receipts, prominently stating in big letters to be GIFT RCPTS, to anyone for whom I purchase firearms in future, as will the straw buyers for the Sinaloa, Tijuana, Juarez, Los Zetas and Beltran-Leyva cartels.

La Familia cartel and Bloods, Crips and MS-13 gangs will not do so, leaving their straw buyers subject to prosecution, because that's just the way those rotten guys roll.

Robin said...

Here's another point. We've criminalized lying to the government in a lot of different places - but no where else is it a crime unless the lie is "material".

Kagan covers this by claiming that Abramski's lie was material because the government was lied to about where the firearm went. But since he could have legally bought the gun and later decided to sell to the uncle, in the same fashion, legally, Kagan's justification is based on falsifying the facts.

Mike Gallo said...

Hey Tam what about when I buy a gun (Title 1) or can (Title 2) for my trust? I am not really the actual purchaser, I am an agent for a fictitious entity that is the true purchaser. The "agent" argument falls flat in the face of other buying interactions that are considered legal. This really is making it up as they go along at its finest.

tailwind said...

I think the morals of the agency story here are 1)don't use a check to pay your buddy to go buy the Blastomatic for you, 2)don't communicate via email or any other means subject to recording, and 3)don't lie on the 4473*.

*even if you agree to do the deal, if you use your own cash and your intention is to re-sell the Blastomatic to your buddy, the initial purchase is for you, not him. Therefore you can truthfully state on the form that you are buying the gun for yourself. If you live in a state where private gun sales must go through an FFL, the whole thing is moot.

Kevin said...

Having read the decision, Tam, I think I have to take exception to your definition. It appears to me that the Court decided that what was illegal is that Abramski received payment up front. If he'd been payed when the interstate transfer to his uncle occurred, no crime would have been committed. If he'd GIVEN the gun to his uncle, no crime would have occurred.

I've asked this elsewhere - what happened to the concept of mens rea?

Tam said...

Kevin,

You are free to take exception, but you are incorrect.

Guns as gifts are indeed a-ok. There are clear instructions and examples on the 4473, or you can go watch the little BATFE educational cartoons featuring Carla the Gun Store Clerk.

The crime here is perjury. There is no such thing as "felony straw purchase". If you are buying the gun at the direction of someone else and with someone else's money (whether you have yet received the money or not), then you are not the actual purchaser and are, perforce, lying when you answer "yes" to question 11.a.

If he'd just bought the gun as an outright gift for his uncle, that would be fine and not even the feds are disputing that. It's printed right on the 4473.

The law is goofy and needs to be overturned, yes, but it's not as hard to understand as everybody's trying to make it here.

Tam said...

Mike Gallo,

"This really is making it up as they go along at its finest."

No it's not. It's been printed right on the form for years.

Sigivald said...

Tam said: The crime here is perjury

Not quite! "Making false statements on a 4473" is not perjury.

(Perjury, Federally, is 18 USC 1621, making a false statement under oath.)

This - lying on a 4473, at least per the Majority decision's view here* - is also an illegal false statement (18 USC 924(a)(1)), but not perjury.

Both are felonies (in that they have a maximum penalty of over a year in prison - five years, in this case), but it's not even quite a nitpick to separate them - one involves an oath, and the other not, and they're different statutes.

Sigivald said...

What I can't figure out under that argument is how a gift that isn't a surprise ("I want a Blastomatic Illudium Q-36 for my birthday!" "Okay.") is not also illegal under the statute, if a "straw purchase" ("I want a Q-36, here's some money". "Okay.") is.

The statute (18 USC 923(a)(1), IIRC, requiring the transferee's name be recorded by the FFL) makes no mention of "gifts" or what "transferee" might mean apart from "person taking the gun from the FFL".

It seems to me that this is a terrible decision on the basis of the text of the law.

Absent Congress adding in text to make the law match what the ATF wants (which honestly, wouldn't be the worst outcome), it sure seems like at least the prearranged gift case is as much a "straw purchase" under the terms of the "false statements" law as just buying a gun for someone else.

I don't see a justification for a textual distinction.

Bubblehead Les. said...

Sigh! Kennedy, Kennedy, Kennedy. Sometimes, I wonder what part of Space-Time his Brain resides in.

Bubblehead Les. said...

Sigh! Kennedy, Kennedy, Kennedy. Sometimes, I wonder what part of Space-Time his Brain resides in.

Bubblehead Les. said...

Sigh! Kennedy, Kennedy, Kennedy. Sometimes, I wonder what part of Space-Time his Brain resides in.

Jake (formerly Riposte3) said...

"This really is making it up as they go along at its finest."

"No it's not. It's been printed right on the form for years."


Well, they have been going along for years.

The ATF's position on this has changed from "not a crime even if you buy it for a prohibited person" to "not a crime if the person is not prohibited" to the current "not a crime unless money changes hands", despite the fact that Congress has never actually changed the statute.

Tam said...

Sigivald,

"What I can't figure out under that argument is how a gift that isn't a surprise ("I want a Blastomatic Illudium Q-36 for my birthday!" "Okay.") is not also illegal under the statute, if a "straw purchase" ("I want a Q-36, here's some money". "Okay.") is."

922(a)(6)

Dan Atwater said...

"If he'd just bought the gun as an outright gift for his uncle, that would be fine and not even the feds are disputing that. It's printed right on the 4473."

I've seen people freaking out about how this ruling means that gift giving is now considered a straw purchase, and how it makes private sales illegal. I read the whole damn thing and while I may be misinterpreting some legalese, I just can not find what they're talking about.

Am I missing something here?

Windy Wilson said...

Many other issues in the law turn on much finer distinctions than this.
Agency is something like hearsay in that not a lot of lawyers and judges understand it, to say nothing of "civilians".

Turk Turon said...

Is it true that Abramski was a retired LEO?

It seems to me that the Court is saying that in order to catch the guilty (who traffic guns to felons) we have to also convict the innocent (who do not).

Geodkyt said...

I once bought a gun (a Steyr M1912), and hadn't had it at home 30 minutes when I realized I really felt no attachment to it, hated the trigger, and realized I didn't have a ready supply of 9x23mm Steyr or the clips.

So I ended up selling it to a buddy who does collect such (and even reloads 9x23mm Steyr) for what I paid for it.

Since when I bought it, my intent was I was buying it for myself, I was perfectly correct to say the purchase was for myself. The fact that less than 24 hours later, I agreed to sell it to someone else, is irrelevant.

Jake (formerly Riposte3) said...

Oh, btw:

"I've asked this elsewhere - what happened to the concept of mens rea?"

The government has been smothering the concept of mens rea at every opportunity for quite some time now. After all, "there's no way to rule innocent men", and strict liability makes it so much easier to create guilty ones.

Sean said...

IMO the true lesson of all this is "don't lie on a federal form".

I haven't seen many people comment on the fact that the buyer was acting dishonestly by using his LEO for a person who was to entitled to it. In some sort of possible interpretation he defrauded the dealer and/or Glock out of additional profit they would have received from selling at the non-LEO price since the intended recipient from the start wasn't a LEO.

It's a stupid law, but it was violated. We learn from others so we don't have to learn for ourselves.

Borepatch said...

I bought a brand new Ruger 10-.22 for #2 Son for a Christmas present. Is that now illegal? I guess it depends on the mood of the District Attorney that day.

Ed said...

Tam said:
"The law is goofy and needs to be overturned, yes, but it's not as hard to understand as everybody's trying to make it here."

Sean said:
"It's a stupid law, but it was violated. We learn from others so we don't have to learn for ourselves."

indeed. We all have learned from this. It is another reason why everyone must remind your Congressperson that GCA '68 must be revoked before more are arrested.

Sean said...

"I bought a brand new Ruger 10-.22 for #2 Son for a Christmas present. Is that now illegal? I guess it depends on the mood of the District Attorney that day."

Buying a firearm as a gift is plainly allowed, and it says so right there on the 4473 form. This case wasn't about buying a gift and nothing in the ruling has any bearing on gifts. I wish people would stop with the Chicken Little stuff..

Mike Gallo said...

Do u even NFA, bro?

There is still confusion as to whether or not some Title 2 firearms even need a 4473, or a 4473 but no NICS call, and there is ongoing and changing "guidance" to this day. You failed to address my counter argument showing ambiguity where you insist there is none. Prince law firm even has a Form 1 in for a minigun right now due to the confusion caused by the latest fictitious entity guidance.