SUPREME COURT TAKES A LOOK AT “STRAW PURCHASES” UNDER ATF FORM 4473.
On October 15, 2013, the U.S. Supreme Court agreed to decide exactly what constitutes an illegal “straw purchase” of a firearm under federal law. The case bringing this issue to the high court originated out of the Sixth Circuit Court of Appeals. The facts of the case were chronicled in a January 23, 2013 decision by that court.
In 2009, former Virginia police officer Bruce James Abramski, Jr., had a number of conversations with his uncle, Angel Alvarez, who lived in Pennsylvania, about the uncle’s desire to obtain a Glock 19 handgun. Abramski offered to purchase the weapon for his uncle, believing that his status as a former law enforcement officer would get him a good deal from a local firearms dealer who did a substantial business with law enforcement officials.
There doesn’t appear to be anything illegal about Abramski’s offer, and, in fact, he spoke with at least three other firearms dealers about how to legally make such a purchase. These dealers apparently told Abramski that any licensed firearms dealer in Pennsylvania could transfer the handgun to the uncle after it was lawfully purchased in Virginia.
Armed with this information, Abramski on November 17, 2009 went to a firearms dealer in Collinsville, Virginia, where he purchased a Glock 19 with $2000 in cash. As required by law, Abramski completed Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) Form 4473. The purchaser of a firearm must answer a series of questions listed on the 4473 with a check in either a “yes” or “no” box. Question 11.a 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.
Abramski checked “yes.” Three days later a check for $400 was deposited in Abramski’s bank account. The following day Abramski transferred the Glock to his uncle through a licensed federal firearms dealer in Easton, Pennsylvania. Abramski gave the uncle a receipt for the transfer, confirming the uncle had purchased the weapon from him for $400.
In July 2010, while conducting an unrelated investigation of Abramski’s parents’ home, federal agents discovered a written receipt for the transfer of the Glock from him to his uncle. Unable to secure an indictment in the other criminal investigation, federal authorities sought, and secured, an indictment of Abramski for two firearms offenses: 1) making the “false and fictitious” statement on the 4473 that he was the actual buyer of the Glock in violation of 18 U.S.C. § 922(a)(6); and 2) making a “false statement with respect to information required to be kept in the records of a licensed firearms dealer” in violation of 18 U.S.C. § 924(a)(1)(A).
The Government premised these charges on the “theory” that Abramski was a “straw purchaser” of the Glock that was immediately transferred to his uncle.
The federal appeals courts uniformly agree that a “straw purchase” is a sale where a person makes a purchase of a firearm claiming to be the buyer but who is actually purchasing the weapon for another person who will receive possession of it.
Attorneys for Abramski sought to have the indictment dismissed on the legal premise that because Abramski and the uncle were both legally entitled to purchase a firearm, Abramski could not be a “straw purchaser.” Attorneys further argued that Abramski’s “yes” answer to question 11.a on the 4473 that he was actual buyer of the Glock was never intended to be punished under the Gun Control Act of 1968 if the buyer had a legal right to purchase the weapon. The attorneys theorized that the intent of Congress in passing this Act was “to make it possible to keep firearms out of the hands of those not legally entitled to possess them.”
Abramski’s argument has some significant legal support. In 1997, the Fifth Circuit Court of Appeals, in United States v. Polk, addressed the issue of whether criminal liability attaches under § 922(a)(6) if the “true purchaser” (Abramski’s uncle in this case) can lawfully purchase a weapon directly. Applying the “plain language” of the statute, the Fifth Circuit determined it did not, finding that the intent of § 922(a)(6) is to criminalize false statements designed to “deceive federal firearms dealers” concerning the “lawfulness of the sale;” therefore, if a true purchaser can lawfully purchase a firearm directly, then no criminal liability attaches to the person who fills out the 4473, pays for the weapon, and gives it to the true purchaser.
The Sixth Circuit, however, refused to follow the lead of Polk as the Eleventh Circuit had in 2010. The Sixth Circuit found that the prohibition against false and fictitious statements on a 4473, and criminalized under§ 922(a)(6), is “not limited to those persons who are prohibited from buying or possessing a firearm.” The court pointed out that for the Government to obtain a conviction under § 922(a)(6) must prove four elements: “(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 deceive a firearms dealer.”
The Sixth Circuit said the issue of a “straw purchase” is implicated in element three. Rejecting Abramski’s argument that this element does not apply to a “firearms transaction” involving two “eligible purchasers,” the appeals court cited the language of the Eleventh Circuit in its 2010 decision, United States v. Frazier, rejecting this argument: “ … to say that the identity of the actual purchaser is material to the lawfulness of one sale but not to another, is counterintuitive. Although Polk focused on whether one’s identity is a fact that is material to the lawfulness of a sale under § 922(a)(6), we focus on whether one’s identity is a fact that is material to the lawfulness of a sale. The identity of the purchaser is a constant fact that is always material to the lawfulness of the purchase of a firearm under § 922(a)(6). Thus, it can be reasoned that although the lawfulness of the sale may change depending on the identity of the purchaser, the fact that the identity of the purchaser is material to the lawfulness of the sale does not.”
And that is the thorny legal issue the Supreme Court will have to resolve.
Second Amendment proponents strongly believe there is nothing wrong with a nephew purchasing a weapon he is legally entitled to purchase with the specific intent to sell it to an uncle who is also legally entitled to purchase a weapon. The Fifth Circuit says such a purchase is legal because both parties are legally entitled to purchase and possess a firearm. The Sixth and Eleventh Circuits say these legal entitlements do not matter. The fact that the nephew does not disclose the identity of the uncle as the true purchaser is a criminal act. Both arguments are logical and reasonable, but logic and reason rarely influence statutory interpretation. Such interpretations are shaped by the intent of the legislative body that enacted a statute.
So what did Congress intend with the enactment of § 922(a)(6)? The Justices will tell us.