SCOTUS Has Taken a Straw Purchase Case

[Brian Pfleuger]

However, let's say I just happen to be in the shop, and I see the BM2000. I think, "hey, Blanca wants one of those. I'll buy it for him." Since I'm buying it as a gift, I'm not breaking the law. Even if he reimburses me for it. Even if I sell it to him at a higher price than I paid.

That's the real idiocy of it. Your intent could be exactly the same, "I'm going to buy this gun cheap and triple my money on Blanca!" but if Blanca somehow knows you intend to sell him the gun, it's magically a crime.

 

[Tom Servo]

What's odd is that prosecutors decided to circle the wagons around Abramski and bring out the pitchforks, while those conducting intentional straw buys routinely get off the hook.

I'm familiar with more than a few cases locally. Nobody gets the full sentence, even when the guns are later used in crimes. Most folks plead down to a lesser charge, and I've known defendants to get off with probation.

One of the major purchasers in the Fast & Furious operation got 41 months, but a guy with no intention of wrongdoing and no harm done gets the book thrown at him.

 

[motorhead0922]

Oh I'd say he would have. Apparently the Uncle lived out of State., requiring an FFL transfer of a private sale, and a pistol to boot.

You're correct Jim. I had not read through all the info, and did not see that the gun crossed a state line.

What's odd is that prosecutors decided to circle the wagons around Abramski and bring out the pitchforks, while those conducting intentional straw buys routinely get off the hook.

Well, it could be because Abramski is not exactly the poster boy for our side. There is some evidence, although apparently not enough for conviction, that he robbed the bank to begin with. The evidence is enumerated in the link in post 1:

"Meanwhile, on November 12, 2009, a bank robbery occurred at Franklin Community Bank in Rocky Mount, Virginia. An investigation of the robbery led the FBI to suspect Abramski. Abramski had been fired from the Roanoke police department in 2007, looked similar to the masked bank robber, and was down on his luck (Abramski and his wife had recently separated and their home was in foreclosure).

In executing the search warrant for the Iron Ridge Road property, agents found and seized a green Franklin Community Bank zippered bag containing the written receipt confirming the transfer of the Glock 19 handgun from Abramski to Alvarez on November 21, 2009."

Maybe the grand jury handed down the charge they could get a conviction on.

 

[Spats McGee]

But it also appears that Alvarez and Abramski had entered into an agreement for Abramski to buy the gun for Alvarez. That's kind of the heart and soul of a straw purchase.

It's just plain silly that such a thing would be illegal. Folks do the same exact thing with all kinds of other objects every single day.

For instance, I know where there's a '64 1/2 Mustang that I can get for $4000. I know that you want a '64 1/2 Mustang. I tell you I can get you the car for $6000. You agree. I buy the car and sell it to you.

The Mustang could be replaced with almost literally ANY object in the known universe and be perfectly legal... except a gun, when it becomes suddenly illegal.

The key difference is that there's not a statute on the books that makes that kind of thing a crime with Mustangs, or just about any other object. But we all know that there is such a statute with respect to firearms.

Yes, it's silly. We all know that it's silly. The courts, however, are not in the business of determining the wisdom (or silliness) of statutes. They're in the business of determining (in criminal cases) whether the State has carried its burden of proving a violation. Nothing more, nothing less. Now, if Abramski had raised a 2A challenge to the law, then the court could make a determination as to the validity of the law. He does not challenge the constitutionality of the statute, though.

I suspect that this may be part of an effort to backpedal from the "we don't have time to prosecute paperwork violations" doctrine. I agree with Tom that it's really strange that they're ready to lynch Abramski, but while known traffickers have been given such light sentences, historically speaking.

 

[Aguila Blanca]

Here's a scenario: I mention that I'm going by a gun shop today on my lunch break. Blanca says, "hey, they've got that Bustamatic 2000 in stock. Here's the money. Can you pick it up for me?" If I do so, I'm breaking the law. It doesn't matter that it's perfectly legal for him to own it.

However, let's say I just happen to be in the shop, and I see the BM2000. I think, "hey, Blanca wants one of those. I'll buy it for him." Since I'm buying it as a gift, I'm not breaking the law. Even if he reimburses me for it. Even if I sell it to him at a higher price than I paid.

Yep, that's it in a nutshell.

For example, I just got a card in the mail about a gun show coming up in two weeks. It's about 50 miles away, and I may or may not be able to get there. But I'm sure if I ask around at the range I can turn up somebody who will be attending. So I could hand one of these people a wad of cash and they can legally pick up ammo, holsters, scopes, parts, accessories, and gun-related "stuff" up the wazoo for me ... but if they buy a mil-surp CZ-82 or even a non-functional Colt 1860 Army ... now it's a straw purchase? How is that logical, and what purpose does it serve? Especially if my new-found friend spends all my money on the ammo I asked him to buy, then he spots the 1860 Army and buys it anyway since he knows I've been looking for one at the right price.

So now HE bought the gun, using his own money. I think we agree that it's 100 percent, squeaky clean legal if he gives it to me because I'm such a great guy, yes?

Suppose, though, that he hands it to me (through an FFL transfer, of course) and I pay him for it. Is it a straw sale then? After all, he used HIS money (my money was already spent on ammo). He WAS the actual purchaser -- even though his intention was to transfer it to me as soon as possible.

Then we ratchet things up another notch: He spent all my money on ammo, but we live in an era of cell phones. He spies the 1860 Colt so he calls me from the show: "Hey, I just spotted a cheap 1860 Colt, just like you've been talking about. The price is right. Shall I grab it for you?" What then if I say, "Yeah, grab it"? He's STILL using his money, but now he already knows he will be completely reimbursed.

It seems to me that this entire case hinges not on the transfer but on the answer he gave to one question on the 4473, and I just don't see that he lied on the form. ESPECIALLY not when he had asked not one but THREE FFLs and they ALL told him what he wanted to do was legal. Words are supposed to have meaning, and "lie" does not means the same thing as "make a factual mistake." Heck, I know for a fact that I once made an incorrect statement under oath in a deposition. I didn't lie -- I was wrong in my recollection of an event that had taken place two years previous, and I wasn't aware that my statement was incorrect until six months after the deposition. Did I perjure myself? No, not in my eyes, and not in the eyes of the law. I told the truth as I understood it to be at the moment. Why should it be any different when you're checking a box on a piece of paper?

 

[Brian Pfleuger]

The key difference is that there's not a statute on the books that makes that kind of thing a crime with Mustangs, or just about any other object. But we all know that there is such a statute with respect to firearms.

Yes, it's silly. We all know that it's silly. The courts, however, are not in the business of determining the wisdom (or silliness) of statutes.

I know, but that doesn't make it any less frustrating me that we have elected and continue to elect politicians, and accept their appointments of bureaucrats, who continue to create and enforce stupid, illogical laws. A law that I don't agree with is one thing, there are differences of opinion. Laws and interpretations that might as well come from Wonderland are another thing all together.

 

[lcpiper]

By born2climb;
Was a crime committed with the gun? If not, then WHAT'S THE BIG DEAL???

By Tom Servo;
Why single this guy out?

By Tater
The Agent that pushed this……..Well, who knows what his motives are...

By Tom Servo;
What's odd is that prosecutors decided to circle the wagons around Abramski and bring out the pitchforks, while those conducting intentional straw buys routinely get off the hook.

And what did they convict Al Capone for?


It's just a thought, but it isn't too far out there. Maybe they just want to get there hands on this guy so he can't disappear on them while they pull together proof of his involvement in the bank robbery. Abramski is already a suspect isn't he?


On a side note, back to the check and the money. Businesses don't consider a check as payment until it clears the bank, it's a promise of payment, but it isn't payment as far as I can see, not the way mine are treated anyway.

And second, Father and Son. I can't say how many times things have come up between my Father and I where one has promised to pay the other, and sometimes it goes that way and sometimes it doesn't. We have this routine where we both insist on paying but neither of us can predict exactly how it will actually turn out. It's almost like a protracted game of "Who's got the check?" at the restaurant. I'm just saying, things just are not black and white between a Father and Son.

 

[TATER]

Brian, Talk Frustrating! Watch a group of Thugs dressed in red choreograph and direct from 20-30 feet away . The females look back running their fingers down the glass tables until they see the thugs nod their heads…. Well of course she buying it for herself.

 

[Wreck-n-Crew]

One of the major purchasers in the Fast & Furious operation got 41 months, but a guy with no intention of wrongdoing and no harm done gets the book thrown at him.

That hits a nerve with me as well. The 41 monthes was evidently a PASS.

I know, but that doesn't make it any less frustrating me that we have elected and continue to elect politicians, and accept their appointments of bureaucrats, who continue to create and enforce stupid, illogical laws. A law that I don't agree with is one thing, there are differences of opinion. Laws and interpretations that might as well come from Wonderland are another thing all together.

My take on it as well. To me there should be a clause that allows a person to buy and transfer so long as they knew them personally and that they were not a felon, had felonious intent, or mentally unstable.

Brian, Talk Frustrating! Watch a group of Thugs dressed in red choreograph and direct from 20-30 feet away . The females look back running their fingers down the glass tables until they see the thugs nod their heads…. Well of course she buying it for herself.

First point is that most "Thugs" get thier guns from the streets. Secondly there is a big difference from someone like me purchasing a pistol for my sister with her money and getting more time than a gun runner for a mexican drug cartel.

Problem is the law is casting a wide net posibly and probably catching the wrong fish then throwing them in with the lot. Not to mention the posibility of being prosecuted by a bunch of antis who hate me and have pity for a real criminal.

My beef is with the obvious holes n the law and not with whether or not Abramski was guilty of another crime and they got him on a different one like they did Mr. Capone

 

[ThesNazud]

Thanks Spats, I never fully understood how they determined it, except the obvious, so I was a little confused...

 

[motorhead0922]

I don't see why several of you are complaining about Abramski's sentence. He got 5 years probation. Montelongo got 3 1/2 years in prison.

On June 29, 2011, pursuant to a plea agreement with the
United States Attorney, Abramski entered conditional guilty
pleas, pursuant to Rule 11(a)(2) of the Federal Rules of Criminal
Procedure, to both charges in the indictment.7 On October
3, 2011, the court sentenced Abramski to five years of probation
on each offense, to run concurrently. Abramski thereafter
filed a timely notice of appeal.

 

[JohnKSa]

Since I'm buying it as a gift, I'm not breaking the law. Even if he reimburses me for it. Even if I sell it to him at a higher price than I paid.

In my opinion, you would be on thin ice if money changed hands between the two of you. For one thing, you can't claim it's a gift anymore. It's not a gift if you are reimbursed or if he pays you for it.

As I understand it, if it became an issue, your defense would be that you simply bought it with the intent to resell it. That is legal as long as you weren't making a habit of buying and reselling guns (you'd need an FFL to continually engage in buying and reselling guns) and as long as he hadn't asked you to buy it on his behalf (then it would be a straw purchase).

 

[Tom Servo]

I don't see why several of you are complaining about Abramski's sentence. He got 5 years probation. Montelongo got 3 1/2 years in prison.

Montelongo's actions are the sort of thing this law was supposed to punish. Those guns went into the hands of criminals and were used in homicides. The sentence for straw purchasing is supposed to be ten years.

We won't fully enforce the law for people who do real harm, but we'll prosecute a man on malum prohibitum? Sorry, but I can't get behind that.

 

[Don P]

My question is why didn't dad by the gun for himself to start with? Why did son buy the gun then sell to dad?
Doesn't make sense (something fishy going on) and opened one hell of a can of worms.
Especially after dad was able to pass the background check.
Go figure.

 

[Frank Ettin]

My question is why didn't dad by the gun for himself to start with? Why did son buy the gun then sell to dad?...

As a former LEO son was able to buy the gun at a discount from a particular dealer. All of this was about saving a little money.

 

[Brian Pfleuger]

In my opinion, you would be on thin ice if money changed hands between the two of you. For one thing, you can't claim it's a gift anymore. It's not a gift if you are reimbursed or if he pays you for it.

As I understand it, if it became an issue, your defense would be that you simply bought it with the intent to resell it. That is legal as long as you weren't making a habit of buying and reselling guns (you'd need an FFL to continually engage in buying and reselling guns) and as long as he hadn't asked you to buy it on his behalf (then it would be a straw purchase).

The real idiocy there is that you can buy with the intent to resell but you can't sell it (get the money) before you buy it. There is fundamentally no difference.

 

[Don P]

As a former LEO son was able to buy the gun at a discount from a particular dealer. All of this was about saving a little money.

Unfortunately penny wise and dollar foolish.

 

[Al Norris]

For those interested, SCOTUSblog has the complete filings for cert: Abramski v. United States : SCOTUSblog

Of interest is the questions the petitioner wants the Court to address (link given in the OP):

QUESTIONS PRESENTED​

When a person buys a gun intending to later sell it to someone else, the government often prosecutes the initial buyer under 18 U.S.C. § 922(a)(6) for making a false statement about the identity of the buyer that is “material to the lawfulness of the sale.” These prosecutions rely on the court-created “straw purchaser” doctrine, a legal fiction that treats the ultimate recipient of a firearm as the “actual buyer,” and the immediate purchaser as a mere “straw man.”

The lower courts uniformly agree that a buyer’s intent to resell a gun to someone who cannot lawfully buy it is a fact “material to the lawfulness of the sale.” But the Fourth, Sixth, and Eleventh Circuits have split with the Fifth and Ninth Circuits about whether the same is true when the ultimate recipient can lawfully buy a gun. The questions presented are:

1. Is a gun buyer’s intent to sell a firearm to another lawful buyer in the future a fact “material to the lawfulness of the sale” of the firearm under 18 U.S.C. § 922(a)(6)?

2. Is a gun buyer’s intent to sell a firearm to another lawful buyer in the future a piece of information “required . . . to be kept” by a federally licensed firearm dealer under
§ 924(a)(1)(A).

Of equal value, are the questions the respondent would like the Court to answer:

QUESTIONS PRESENTED​

1. Whether petitioner’s statement that he was the actual buyer of a firearm on a Bureau of Alcohol, Tobacco, Firearms and Explosives Form 4473 was a false statement “material to the lawfulness of the sale” under 18 U.S.C. 922(a)(6), where petitioner purchased the firearm for his uncle and both he and his uncle were eligible to purchase a firearm.

2. Whether the identity of the actual buyer of a firearm is information that is required to be kept in the records of a federal firearms dealer under 18 U.S.C. 924(a)(1)(A).

There were two amici briefs filed, both for the petitioner. Brief amici curiae of Steve Stockman, et al. filed. and Brief amicus curiae of NRA Civil Rights Defense Fund filed..

The petitioners reply: Reply of petitioner Bruce James Abramski, Jr. filed.

All of that aside, what question(s) did the Court actually decide to answer (always in doubt until orders come out, as the Court has great latitude to rephrase the questions to their liking)? The answer (which is here) is that the Court will answer the questions as the petitioner has asked, in the exact manner asked.

While this case is only peripherally about the 2A, it will be an interesting case to follow, as it can clear up much of the "straw purchase" arguments we have.

 

[Aguila Blanca]

2. Is a gun buyer’s intent to sell a firearm to another lawful buyer in the future a piece of information “required . . . to be kept” by a federally licensed firearm dealer under

I certainly hope the Court's answer to number 2 is a resounding "NO!" because, otherwise, for all practical purposes a giver's intention to give away a new firearm to an end recipient as a gift (which has the exact same result, absent an exchange of funds or reimbursement) should also result in the FFLs being required to keep a record of giftees -- which the law (and BATFE guidance) plainly does not require.

 

[Clark]

Joe Waldron, pro gun debater, tells me that few crime guns come from gunshows, but many crime guns come from straw man purchases. He adds that after the crime, the strawman buyer is almost never prosecuted. He says a typical situation is a convicted felon has his girl friend buy the gun. The prosecutor does not want to take some welfare mom to trial.

So I pondered this until I realized that it would be very hard to prosecute a strawman if there is no paper trail. The girl friend could simply say she later sold it to her boy friend, or he took it without asking, etc.

All this must leave prosecutors looking hard for a straw man case with a paper trail. And then on November 15, 2009 -- Alvarez sends Abramski a check for $400 with "Glock 19" in the memo line.