Please Help--Quick Straw Purchase Question

[kemasa]

you're doing it again. the form doesn't say that; the law that the form reflects doesn't say that. both say that the true "buyer" in the transaction is the person for whom the gun is intended, and that it is a felony for someone else to represent themselves as such on the 4473.

And what are you doing?

Why do you think that the form should say EVERYTHING possible?

If a person buys a firearm with the intention to sell it, they are still the buyer. I know it helps your case to ignore that in this example the firearm was later legally transferred with a 4473 and DROS.

that's it -- lying on the form about whether you're buying on another's behalf is the initial crime, and if that's provable without a second transaction, you could prosecute it on its own. also, performing the second transaction lawfully does not erase the first crime; laws don't work like that in general.

In this case, it could be viewed that it was being bought on the behalf of the person who is buying it and who intends to quickly sell it. The second transaction shows that in order to get the firearm to another party, the proper forms and paperwork were filled out.

lots of people who understand this properly are telling you so and citing competent, reliable authorities -- like on-point case law and the actual applicable statute, for instance -- but for some reason it's just not taking root.

Are you really so sure that they understand it properly? We shall see how it turns out and then there will be an answer. I know that lawyers are never wrong when they give their opinion.

Part of the problem is that there are those who claim that just filling out the form makes it illegal and that nothing else has to be done to make it a crime. There needs to be proof that a false statement was made and some people don't want to tie the whole process together, yet want to use the second transfer as proof of what the first transaction means.

The problem is what is determined to be the "buyer" and they want to claim that the original person filling out the 4473 was not the buyer, ignoring the view that the person could be the buyer and then flip it and become a seller. The view of the second transaction can be viewed different ways. Some claim it shows that the first person to fill out the 4473 was not the real buyer, but it can also be viewed that the second transfer shows that the original buyer is now a seller.

Only time will tell which view is correct.

[fiddletown]

...Well, first off it says that the actual purchaser acquired a firearm by means of a straw purchaser. In the example being talked about the actual purchaser did not actually acquire a firearm by means of the first 4473 transaction. The "actual purchaser" acquired the firearm by means of the second transfer, not the first one...

Well, not really. Under established principles of agency law, the way the transaction really breaks down is --

1. X, the straw purchaser buying the gun on behalf of Y, as Y's agent, takes physical possession of the gun when he picks it up from the FFL.
   
   
2. But because he has acting as the agent of Y, Y has what is known as equitable title (or ownership), i. e., the right to have it physically transferred to him by X.
   
   
3. X, until he transfers it to Y, has physical possession, but in trust for Y.
   
   
4. And as previously discussed, because X was buying the gun by prior arrangement on behalf of Y, as Y's agent and proxy, X is not the actual purchaser and therefore committed a crime (violating 18 USC 922(a)(6) and/or 18 USC 924(a)(1)(A)) by falsely claiming on the 4473 to be the actual purchaser.

...This means that just filling out the 4473 is not enough, the actual purchaser also has to acquire the firearm in order for it to be a straw purchase. If the straw purchaser never gives the firearm to the "actual purchaser", then it does not fit what is said.

And this was discussed by snobord99 in post 142 and me in post 144.

...@ the seat of the pants lawyers : its only a straw purchase if the ultimate receiver of the firearm (handgun in this case) is a prohibited person. If said receiver of firearm would "otherwise pass the DROS and check no problem" then no harm no foul ....

First, snobord99 and I aren't "seat of the pants" lawyers. We're real lawyers.

Second, ATF says you're wrong (Federal Firearms Regulation Reference Guide, 2005, at page 165 (emphasis added)):

...Questions have arisen concerning the lawfulness of firearms purchases from licensees by persons who use a "straw purchaser" (another person) to acquire the firearms. Specifically, the actual buyer uses the straw purchaser to execute the Form 4473 purporting to show that the straw purchaser is the actual purchaser of the firearm. In some instances, a straw purchaser is used because the actual purchaser is prohibited from acquiring the firearm. That is to say, the actual purchaser is a felon or is within one of the other prohibited categories of persons who may not lawfully acquire firearms or is a resident of a State other than that in which the licensee's business premises is located. Because of his or her disability, the person uses a straw purchaser who is not prohibited from purchasing a firearm from the licensee. In other instances, neither the straw purchaser nor the actual purchaser is prohibited from acquiring the firearm.

In both instances, the straw purchaser violates Federal law by making false statements on Form 4473 to the licensee with respect to the identity of the actual purchaser of the firearm, as well as the actual purchaser's residence address and date of birth. The actual purchaser who utilized the straw purchaser to acquire a firearm has unlawfully aided and abetted or caused the making of the false statements. The licensee selling the firearm under these circumstances also violates Federal law if the licensee is aware of the false statements on the form. It is immaterial that the actual purchaser and the straw purchaser are residents of the State in which the licensee's business premises is located, are not prohibited from receiving or possessing firearms, and could have lawfully purchased firearms...

And federal courts say you're wrong. See United States v. Frazier, 605 F.3d 1271 (11th Cir., 2010) and United States v. Johnson (9th Circuit, No. 11-10290, 29 May 2012, For Publication).

...If a person buys a firearm with the intention to sell it, they are still the buyer....

It depends. As I discussed in a previous post, if someone buys a gun with the intention of trying to sell it to anyone who might want to buy it at an agreeable price, then yes, he is the actual buyer.

But if someone buys a gun by prior arrangement with another person with the intention of both parties being that he will then transfer the gun to that other person, in the eyes of the law, he is not the actual buyer. He is acting as the agent of the actual buyer, and although he takes possession, the actual buyer, until he takes physical possession, has equitable ownership.

I've also explained this in a number of prior posts in a number of different ways, including in this post, above. These various legal concepts from the law of agency can be complex and non-intuitive, but they matter here.

...I know it helps your case to ignore that in this example the firearm was later legally transferred with a 4473 and DROS....

And as has been discussed numerous times, that's irrelevant.

Let's try this:

[1] X and Y are residents of Nevada. Y drops into see X at X's office and says to X, "I saw this SIG P210 I want at LGS, but I'm on my way out of town for a couple of weeks and don't have time to go in and buy it. I'm afraid it will be sold by the time I get back. Here's the money. Would you go and buy it for me and hold on to it until I return? The I'll pick it up from you." X agrees.

[2] X and Y have entered into an express agreement whereby X will buy a particular gun on behalf of Y, as Y's agent. But when X goes to the LGS and pays for the gun and fills out the 4473, he will claim to be the actual purchaser. As discussed many times, in the eyes of the law, he is not really the actual purchaser because he is acting as Y's agent.

[3] But by your reasoning, if when Y returns X and Y go to an FFL and X transfers the gun through the FFL to Y, X's acquisition of the gun by making a false statement on the 4473 was not a straw purchase because the subsequent transfer to Y involved Y's completion of a 4473.

[4] But also by your reasoning, if X just gives the gun to Y, X's acquisition of the gun by making a false statement on the 4473 was a straw purchase because the subsequent transfer to Y did not involve Y's completion of a 4473. Note that since both parties are residents of Nevada, this transfer without formality is completely legal.

[5] So you would claim that X's acquisition of the gun by making a false statement on the 4473 was not a straw purchase if the subsequent transfer was by 4473, but that it was a straw purchase if the subsequent transfer was an entirely legal transfer without a 4473.

In light of description of a straw purchase by the ATF in its Regulation Guide, that makes no sense at all.

...Are you really so sure that they understand it properly? We shall see how it turns out and then there will be an answer. I know that lawyers are never wrong when they give their opinion...

Since understanding this stuff is how we make our livings, it's a good bet we understand it better than you do.

...Part of the problem is that there are those who claim that just filling out the form makes it illegal and that nothing else has to be done to make it a crime. There needs to be proof that a false statement was made and some people don't want to tie the whole process together, yet want to use the second transfer as proof of what the first transaction means...

I addressed this in post 139.

...The problem is what is determined to be the "buyer" and they want to claim that the original person filling out the 4473 was not the buyer, ignoring the view that the person could be the buyer and then flip it and become a seller. The view of the second transaction can be viewed different ways. Some claim it shows that the first person to fill out the 4473 was not the real buyer, but it can also be viewed that the second transfer shows that the original buyer is now a seller...

And that makes no sense at all. In fact, there is no problem deciding who the actual buyer is when the transaction is properly analyzed with appropriate application of the law of agency.

[chris12]

[3] If father 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, father 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.

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

[5] If father takes his money and buys the gun knowing that 2 parties have each expressed interest in owning the gun, but he has not yet decided if he will sell it to X or Y. Is the father the actual purchaser?

[6] If father takes his money and buys the gun with a plan to sell it to X knowing that X wants the gun and has money to pay for it, but has not previously reached an agreement to sell the gun to X. Is the father the actual purchaser?

Is there a legal definition of 'actual purchaser'? Based on the posts I've read it clearly isn't the definition I would use.

[davek8s]

This thread makes me so happy.

I can't believe people are still arguing about this. For 4 pages?

I still think if the OP and his dad want to pull off this straw purchase, they should go ahead and do it. Since no one will ever find out and no DA will ever waste the time on this father/son deal.

But then again, I'm just a truck driver

[snobord99]

That's true of course. What we have is an agency agreement in which B has undertaken to act as A's agent for the purposed of buying a gun, and then A failing to perform on his side.

So on one hand, the existence of some prior arrangement for the straw purchaser to after acquisition of the gun to transfer it to some one else, is necessary for the purchase to be a straw purchase. The arranged subsequent transfer is what makes the straw purchaser not the actual buyer. The subsequent transfer is evidence of intent, but the false statement, and therefore the crime, occurs when the the straw purchase says "I am the actual purchaser" knowing that he is really not and with the existing intent to carry out his agreement with the actual purchaser.

On the other hand, that could be hard to prove, except perhaps if the facts are as described in your hypothetical.

On that point I don't agree. Ultimately, the crime is complete once B checked that box and signed the form. At the time he did so, he is lying on the form as he was not and did not intend to be the actual purchaser. If A turns around later and says "I don't want it," it can't change the fact the crime had already occurred. A changing his mind can't undo the crime that was already done so I don't think it matters, legally of course, whether that second transaction takes place.

Edit: strike that. I missed the word "arranged" in your statement, so, agreed.

The other interesting question is whether in the case of a breached agency arrangement, either party would sue. In any case, it would have to be in small claims court or pro se since I can't see a savvy lawyer taking it on. The contract is illegal. As ATF puts it (Federal Firearms Regulation Reference Guide, 2005, at page 165 (emphasis added)):

This I certainly agree with, but I don't think whether it happens as a small claims, limited, or unlimited suit really matters. The key if the idiot admits in court he didn't buy the gun for himself.

[snobord99]

i like how you're only reading the parts that seem to back up your current misguided understanding.

Fixed it for ya!

[snobord99]

[5] If father takes his money and buys the gun knowing that 2 parties have each expressed interest in owning the gun, but he has not yet decided if he will sell it to X or Y. Is the father the actual purchaser?

[6] If father takes his money and buys the gun with a plan to sell it to X knowing that X wants the gun and has money to pay for it, but has not previously reached an agreement to sell the gun to X. Is the father the actual purchaser?

Is there a legal definition of 'actual purchaser'? Based on the posts I've read it clearly isn't the definition I would use.

Both good questions and I would say yes to both.

[5] IMO, this would be no different than father buying a gun for himself to flip at a gun show where there will potentially be many interested buyers.

[6] Key phrase "has not previously reached an agreement."

In both instances, the father is buying the firearm without anyone having specifically told him "buy this for me."

[snobord99]

I like how you seem to want to ignore important aspects. The "actual buyer" has to acquire the firearm through the transaction, not some other transaction.

I'm just curious, but in your mind, if you gave a real estate agent $500k to buy a house for you, is the real estate agent the actual purchaser of the house or are you the actual purchaser of the house?

[Deadbolt]

Well, not really. Under established principles of agency law, the way the transaction really breaks down is --

1. X, the straw purchaser buying the gun on behalf of Y, as Y's agent, takes physical possession of the gun when he picks it up from the FFL.
   
   
2. But because he has acting as the agent of Y, Y has what is known as equitable title (or ownership), i. e., the right to have it physically transferred to him by X.
   
   
3. X, until he transfers it to Y, has physical possession, but in trust for Y.
   
   
4. And as previously discussed, because X was buying the gun by prior arrangement on behalf of Y, as Y's agent and proxy, X is not the actual purchaser and therefore committed a crime (violating 18 USC 922(a)(6) and/or 18 USC 924(a)(1)(A)) by falsely claiming on the 4473 to be the actual purchaser.

And this was discussed by snobord99 in post 142 and me in post 144.

First, snobord99 and I aren't "seat of the pants" lawyers. We're real lawyers.

Second, ATF says you're wrong (Federal Firearms Regulation Reference Guide, 2005, at page 165 (emphasis added)):
And federal courts say you're wrong. See United States v. Frazier, 605 F.3d 1271 (11th Cir., 2010) and United States v. Johnson (9th Circuit, No. 11-10290, 29 May 2012, For Publication).

It depends. As I discussed in a previous post, if someone buys a gun with the intention of trying to sell it to anyone who might want to buy it at an agreeable price, then yes, he is the actual buyer.

But if someone buys a gun by prior arrangement with another person with the intention of both parties being that he will then transfer the gun to that other person, in the eyes of the law, he is not the actual buyer. He is acting as the agent of the actual buyer, and although he takes possession, the actual buyer, until he takes physical possession, has equitable ownership.

I've also explained this in a number of prior posts in a number of different ways, including in this post, above. These various legal concepts from the law of agency can be complex and non-intuitive, but they matter here.

And as has been discussed numerous times, that's irrelevant.

Let's try this:

[1] X and Y are residents of Nevada. Y drops into see X at X's office and says to X, "I saw this SIG P210 I want at LGS, but I'm on my way out of town for a couple of weeks and don't have time to go in and buy it. I'm afraid it will be sold by the time I get back. Here's the money. Would you go and buy it for me and hold on to it until I return? The I'll pick it up from you." X agrees.

[2] X and Y have entered into an express agreement whereby X will buy a particular gun on behalf of Y, as Y's agent. But when X goes to the LGS and pays for the gun and fills out the 4473, he will claim to be the actual purchaser. As discussed many times, in the eyes of the law, he is not really the actual purchaser because he is acting as Y's agent.

[3] But by your reasoning, if when Y returns X and Y go to an FFL and X transfers the gun through the FFL to Y, X's acquisition of the gun by making a false statement on the 4473 was not a straw purchase because the subsequent transfer to Y involved Y's completion of a 4473.

[4] But also by your reasoning, if X just gives the gun to Y, X's acquisition of the gun by making a false statement on the 4473 was a straw purchase because the subsequent transfer to Y did not involve Y's completion of a 4473. Note that since both parties are residents of Nevada, this transfer without formality is completely legal.

[5] So you would claim that X's acquisition of the gun by making a false statement on the 4473 was not a straw purchase if the subsequent transfer was by 4473, but that it was a straw purchase if the subsequent transfer was an entirely legal transfer without a 4473.

In light of description of a straw purchase by the ATF in its Regulation Guide, that makes no sense at all.

Since understanding this stuff is how we make our livings, it's a good bet we understand it better than you do.

I addressed this in post 139.

And that makes no sense at all. In fact, there is no problem deciding who the actual buyer is when the transaction is properly analyzed with appropriate application of the law of agency.

lol dang

[fiddletown]

[5] If father takes his money and buys the gun knowing that 2 parties have each expressed interest in owning the gun, but he has not yet decided if he will sell it to X or Y. Is the father the actual purchaser?

[6] If father takes his money and buys the gun with a plan to sell it to X knowing that X wants the gun and has money to pay for it, but has not previously reached an agreement to sell the gun to X. Is the father the actual purchaser?...

In each of those two hypotheticals, the father is the actual purchaser. He has purchased the gun for his own purposes, not by specific arrangement with a particular other person on that person's behalf.

In your hypothetical [5], his purpose was to keep the gun for himself or possibly sell it to one of two people he has reason to believe might want it. If one of them doesn't want it, father is stuck with the gun, unless he can now sell it, or give it, or trade it to someone else.

In your hypothetical [6], his purpose is to sell it to a particular person. But he is speculating in the gun, because that person didn't ask him to buy it for him. Again, if X doesn't want the gun, father is stuck with it unless he can otherwise dispose of it.

...Is there a legal definition of 'actual purchaser'? Based on the posts I've read it clearly isn't the definition I would use.

I'm not sure what definition you'd use, but in the context of this legal analysis, simply looking at the mechanics of the transaction doesn't necessarily give you the right answer.

In simple, everyday life, intuitive terms, an actual purchaser is the guy who physically hands over the money and takes the thing away. But that won't be the correct answer for 4473 purposes. That is why the 4473 includes some fairly detailed instructions for answering that question.

To be the "actual purchaser" for 4473 purposes, you are buying the gun with your money for your own purposes, to satisfy your personal want or need. We lawyers would say that you are buying the thing "for your account."

On the other hand, if you are buying the gun on behalf of, as agent or proxy for, a particular other person, you are buying the gun to satisfy hie want or need, for his account.

The thing is, superficially, these acts look the same. You give the guy at the LGS some money, fill out a form and [10 days later] walk out with the gun. The difference s the back story. And we've discussed what facts, what back stories, lead to one conclusion or another.

[snobord99]

I'm not sure what definition you'd use, but in the context of this legal analysis, simply looking at the mechanics of the transaction doesn't necessarily give you the right answer.

In simple, everyday life, intuitive terms, an actual purchaser is the guy who physically hands over the money and takes the thing away. But that won't be the correct answer for 4473 purposes. That is why the 4473 includes some fairly detailed instructions for answering that question.

To be the "actual purchaser" for 4473 purposes, you are buying the gun with your money for your own purposes, to satisfy your personal want or need. We lawyers would say that you are buying the thing "for your account."

On the other hand, if you are buying the gun on behalf of, as agent or proxy for, a particular other person, you are buying the gun to satisfy hie want or need, for his account.

The thing is, superficially, these acts look the same. You give the guy at the LGS some money, fill out a form and [10 days later] walk out with the gun. The difference s the back story. And we've discussed what facts, what back stories, lead to one conclusion or another.

What I find funny is that in simple, everyday life, we don't generally use the term "actual purchaser." The guy that runs in to 7-11 and grabs a soda for his buddy while he's there, we don't call him the "actual purchaser." We simply call him the "purchaser." IMO, "actual purchaser" is actually a legal term of art and even trying to use an everyday understanding of it doesn't work as it's not a commonly used term.

I think people here are of the opinion that the guy buying the firearm is an actual purchaser because they want it to be so, because that means they don't have to worry about straw purchase laws as much. I think if we were to survey people off the street "A asked B to buy him a Coke and gave B the dollar for it, who's the 'actual purchaser?'" I think more often than not, people would say that A was because B would normally be referred to simply as the purchaser. Throw the word "actual" in front of it and I think most people would think about who the Coke is actually for.

[fiddletown]

What I find funny is that in simple, everyday life, we don't generally use the term "actual purchaser." The guy that runs in to 7-11 and grabs a soda for his buddy while he's there, we don't call him the "actual purchaser." We simply call him the "purchaser." IMO, "actual purchaser" is actually a legal term of art and even trying to use an everyday understanding of it doesn't work as it's not a commonly used term.

I think people here are of the opinion that the guy buying the firearm is an actual purchaser because they want it to be so, because that means they don't have to worry about straw purchase laws as much. I think if we were to survey people off the street "A asked B to buy him a Coke and gave B the dollar for it, who's the 'actual purchaser?'" I think more often than not, people would say that A was because B would normally be referred to simply as the purchaser. Throw the word "actual" in front of it and I think most people would think about who the Coke is actually for.

i think that's a useful perspective.

In everyday life we don't need to turn to the law of agency to understand the legal ramifications of the activity. "Here's a buck. Pick me up a Coke.", just doesn't raise any legal issues that need to be figured out.

In "everyday life" scale, Newtonian physics works just fine. But if you need to understand what's going on inside an atom, you need quantum physics.

It's about using the right tool.

[toby]

Cheese and Rice already!