Common Sense Escapes 4th Circuit in 'Straw Purchase' Gun Decision?
A guy wants a pistol. His nephew gets a law enforcement discount, so he gives the nephew the money to purchase the gun. The pistol is then legally transferred to the uncle, saving that uncle money.
The nephew is later charged with multiple federal crimes. The Fourth Circuit upheld his punishment earlier this week.
What were the crimes?
- making a false statement that was material to the lawfulness of a firearm sale [18 U.S.C. § 922(a)(6)]; and
- making a false statement with respect to information required to be kept in the records of a licensed firearms dealer [18 U.S.C. § 924(a)(1)(A)].
So what was the false statement? Question 11.a. on ATF Form 4473 asks:
"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. If you are not the actual buyer, the dealer cannot transfer the firearm(s) to you."
So, how did the Feds find out about this familial transfer? The defendant, Bruce Abramski, Jr., was suspected in a bank robbery after being fired from the Roanoke Police Department. Multiple warrants were issued and searches conducted in the course of that investigation, but the charges were later dropped.
To recap, we have a guy who was falsely accused of robbery (innocent until proven guilty) and who bought a firearm and transferred it legally to his uncle, charged with two federal offenses.
Practice note: Though the parties agreed, before the judge, that the defendant could appeal all pre-trial rulings, the overly specific language of Abramski's conditional plea agreement was never updated. Both sides signed off anyway. The missed language could have cost Abramski his chance to appeal, but the court took notice of the oral agreement, despite it not being "on the record."
Abramski arguing the common sense proposition that purpose of the Gun Control Act of 1968 was to keep guns out of the hands of those who cannot purchase them legally. The Fifth Circuit agrees with him. However, the Fourth, Sixth, and Eleventh Circuits do not.
In order to prove 922(a)(6), the prosecution must show that (1) the defendant knowingly made (2) a false or fictitious oral or written statement that was (3) material to the lawfulness of the sale or disposition of a firearm, and was (4) intended to deceive or likely to deceive a firearms dealer.
Technically, the Fourth, Sixth, and Eighth are probably correct under a strict literal reading of the statute. The identity of the true purchaser, lawful or unlawful, is material to the lawfulness of the sale. The Fifth Circuit focuses on lawfulness and states that if the true purchaser can lawfully purchase the firearm directly, criminal liability does not attach.
One has to wonder about the the greater implications. This ruling makes guns-as-gifts or situations like Abramski's illegal as straw purchases if the original buyer has no intent of owning the gun at the time of purchase. Christmas. Ruined.
- United States v. Abramski (Fourth Circuit Court of Appeals)
- Interstate Firearm Sale Regulations Challenge Fails on Standing (FindLaw's Fourth Circuit Blog)
- Does Maryland's 'May Issue' Concealed Carry Law Violate 2nd Amendment? (FindLaw's Fourth Circuit Blog)
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