Please Help--Quick Straw Purchase Question

[snobord99]

I think that what has alot of people wrapped around the axle is the "intent" crime regarding the intent of the purchaser at the time of filling out the 4473 (and the ability or lack thereof to prove intent)

Under a strict interpretation it could be argued that a firearm collector/investor who buys and sells rare/collectible guns with the intent of turning a profit would really need to be a dealer to stay legit. Ridiculous example: if it was my intent to buy up every colt python in existence in CA and then slowly sell them off at 1000% profit (since I now own the entire supply) would make me a straw purchaser no matter how slowly I sold them off since I never had the intent of buying the firearm for personal consumption/use. My intent was always to resell later at a higher price.

This intent issue might be where some LEOs walk a fine line in using their ability to purchase non-roster pistols and then turn around and resell them at a markup later. Sure, its completely legal to buy a gun decide you don't like it and sell it ppt at fair market value... however do that too many times per year it might raise a red flag (and be pretty hard to explain why you bought and sold the same make and model of handgun more than once).

In general "intent" crime can difficult to understand because it is not necessarily about the end result of the events that actually took place but the mindset of the folks involved when the events took place. While intent may be difficult to prove, I think what some people might be getting riled up about is that IF falsely accused of a straw purchase, your intent is equally difficult to defend.

Scenario A: Johnny wants to buy an offlist handgun. Goes to his buddy Joe who is a cop and says, hey I really want an XDm but I can't get one in CA without going thru the SSE hoops. Joe says, I can get you one no-prob since I am roster exempt, just pay me back sometime after we ppt to you. Joe buys the XDm and in the process commits a crime because his sole intent of purchasing the gun is to resell to Johnny thus lying on the 4473.

Scenario B: Johnny laments to his cop buddy Joe about how it sucks that he can't easily get an XDm in CA. Joe remembers how Johnny saved his bacon when serving overseas together and decides to use his roster exempt status and buy Johnny an XDm as a gift. Johnny is floored and tries to pay Joe back, but Joe refuses.

Scenario C: Johnny reads the latest version of Guns and Ammo and is all jazzed about the new XDm only to findout he cannot get it CA due to the roster. Joe, had purchased an XDm a couple of months ago but found he really like the SW M&P over the XDm. The XDm has been sitting in the safe for months. Joe decides to sell the XDm to Johnny via ppt to make room in the safe for future purchases.

In all three scenarios, Joe and Johnny are non-prohibited persons. In all three scenarios, the net result is the same; Johnny gets an XDm from Joe (who purchased it with his roster exempt status). Scenario A is illegal due to the purchase with the intent to resell regardless of $$ between Joe and Johnny changes hands prior to or after Joe executes the purchase. Scenarios B and C are legit.

Its all really fine lines between legal and illegal. The gift scenario is difficult because, gifts are rarely one-way expressions of gratitude. In the above scenario, if Johnny reciprocates the gesture and gives Joe a gift of roughly the same value as the XDm at a later date, could an overzealous prosecutor accuse Joe of a being a straw purchaser? If so, how long should the recipient of a gifted firearm wait until they reciprocate a gift back to the original purchaser?

Another example that might fall into the gray zone is couples where one spouse works and the other is a stay at home spouse. My wife does not have an income of her own; rather we decided it was more financially beneficial for her to stay home and raise the kids. I give her a monthly allowance into her personal checking account to cover daily expenses. If she decides to use that money to buy a firearm for me as a gift, would that technically make her a straw purchaser since the "source of the $$-me" is considered the actual buyer?

Related but maybe slightly off topic, how does a non-person entity like a corporation or NFA-trust purchase a firearm. By definition, the person buying the firearm is acting as an agent of the corp/trust... or does that fall into a completely different realm of paperwork instead of a 4473?

A parallel idea of intent is the 12020 threads regarding clubs, etc. Carrying a baseball bat and glove in the trunk of your car for the weekly pick up game after work is perfectly legal. Carrying a baseball bat in your trunk "for protection in case you get mugged" is a felony. Same idea here with the straw purchase and intent as buyer of the firearm.

Interesting thread so far,
drc

+1. Very well said.

[fiddletown]

...Under a strict interpretation it could be argued that a firearm collector/investor who buys and sells rare/collectible guns with the intent of turning a profit would really need to be a dealer to stay legit. Ridiculous example: if it was my intent to buy up every colt python in existence in CA and then slowly sell them off at 1000% profit (since I now own the entire supply) would make me a straw purchaser no matter how slowly I sold them off since I never had the intent of buying the firearm for personal consumption/use. My intent was always to resell later at a higher price....

Why this is not a straw purchase issue was addressed in post 110:

...If the father bought the gun thinking "I'm going to buy this and it's going to X (and not as a gift)," then he's not the actual purchaser. If he's thinking "I'm going to buy this and only keep it as long as I can sell it to someone," then he's the actual purchaser....

And in post 111:

...in that example father isn't buying the gun for anyone in particular, and no advance arrangements had been made. He is speculating and taking the risk that no one will want to buy the gun from him. And if no one buys it, he's stuck with it....

And of course it someone does this too often, he violates federal law by dealing in firearms without a license.

...Another example that might fall into the gray zone is couples where one spouse works and the other is a stay at home spouse. My wife does not have an income of her own; rather we decided it was more financially beneficial for her to stay home and raise the kids. I give her a monthly allowance into her personal checking account to cover daily expenses. If she decides to use that money to buy a firearm for me as a gift, would that technically make her a straw purchaser since the "source of the $$-me" is considered the actual buyer?...

The reason this is a non-issue was discussed here:

...A gift of a gun to a spouse is pretty much a non-issue. Martial property is owned jointly by both spouses. So if one buys the other a gun with marital property, he/she has bought the gun with his/her own money...

And here:

I am goin to have to agree with dieselpower on this one. For instance my mother bought my dad socks for christmas. (ya great gift, anyway) well my mom does not have a job or source of income so she uses my fathers money from his paychecks for shopping etc. My mother is "gifted" the money so she used it to buy my dad a gift....

Here's why your analysis is defective.

In the law, marital property, such as the household income from either spouse, is the joint property of both the husband and the wife. So the money your mother used to buy your father his socks is, by operation of law, as much hers as it is your father's.

[kemasa]

Perhaps reading the BATF's view might be educational:

http://www.dontlie.org/why.cfm

Straw Purchasing

Buying a gun for someone who is prohibited by law from possessing one or for someone who does not want his or her name associated with the transaction is a "straw purchase."

1. An illegal firearm purchase (straw purchase) is a federal crime.
2. An illegal firearm purchase can bring a felony conviction sentence of ten years in jail and a fine of up to $250,000.
3. Buying a gun for someone who can't can cost you your good name and land you in big trouble.

Never buy a gun for someone who is unwilling or unable to do so.

http://www.dontlie.org/FAQ.cfm

What is a straw purchase?

A straw purchase is an illegal firearm purchase where the actual buyer of the gun, being unable to pass the required federal background check or desiring to not have his or her name associated with the transaction, uses a proxy buyer who can pass the required background check to purchase the firearm for him/her. It is highly illegal and punishable by a $250,000 fine and 10 years in prison.

Filling out the DROS and a 4473 with you name indicates that you are not attempting to not have your name associated with the transaction.

The above referenced site is:

What is the Don't Lie for the Other Guy campaign?

A campaign led by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATFE) ...

[fiddletown]

Perhaps reading the BATF's view might be educational...

But that's not BATF. The sites you linked to are public service statements by NSSF.

Here's what BATF has said in an official publication published by the BATF to provide technical guidance to licensees (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...

The offense is violation of 18 USC 922(a)(6), making a false statement on the 4473 (specifically about who is the actual buyer).

I covered that back at post 3 on 20th April.

[kemasa]

The key point is that the actual purchaser is being hidden in a straw purchase, which if you look at what I posted is mentioned. In the FAQ, it is only implied.

While it is on a NSSF site, where do you think that the information came from?

[fiddletown]

The key point is that the actual purchaser is being hidden in a straw purchase, which if you look at what I posted is mentioned. In the FAQ, it is only implied...

It's also mentioned specifically and more directly in what I posted long ago.

...While it is on a NSSF site, where do you think that the information came from?

But tailored to a different audience and for a different purpose.

The fundamental points, which have been the subject this thread for some six weeks, as well as prior threads on the same subject, are (1) the violation is making a false statement on the 4473 regarding who the actual purchaser is (in violation of 18 USC 922(a)(6)); and (2) it doesn't matter whether whoever finally winds up with the gun is or is not prohibited.

[kemasa]

The fundamental points, which have been the subject this thread for some six weeks, as well as prior threads on the same subject, are (1) the violation is making a false statement on the 4473 regarding who the actual purchaser is (in violation of 18 USC 922(a)(6)); and (2) it doesn't matter whether whoever finally winds up with the gun is or is not prohibited.

Really? It does not matter who ends up with the gun? So it is still a straw purchase if the person who filled out the forms still has it?

First, it has to be a false statement. You have to be able to show it is a false statement. Buying and reselling a firearm does not mean the original statement is false. Second the firearm has to go to another person.

You are correct that it can still be a straw purchase even if all parties involved are not prohibited, but it is important as to what happens to the firearm.

[JagerDog]

Send Dad a Father's Day check for $500. Dad buys gun, then decides to gift it to you for being such a good son and he knew you admired his pistol.

[fiddletown]

...the firearm has to go to another person...

Of course it does. I wrote "...the guy who finally winds up..." with the gun. Clearly in the context of the discussion the gun would be moving on.

[kemasa]

Then does it matter to you how the firearm gets to another person?

[fiddletown]

Send Dad a Father's Day check for $500. Dad buys gun, then decides to gift it to you for being such a good son and he knew you admired his pistol.

Do you really think anyone would believe you?

[fiddletown]

Then does it matter to you how the firearm gets to another person?

That was addressed ---

Here:

...the issue is lying on the Federal paperwork, the 4473, about who is actually the purchaser...

Here:

Did you read my long reply?

It doesn't change the illegality about lying about the original purchase/purchaser when you properly transfer that gun later.

Here:

.... The crime is misrepresenting on the 4473 who is the actual buyer....

Here:

.... The federal crime is making a false statement on the initial 4473. That is not cured by subsequent, legal transfers....

Here:

.... a subsequent lawful transfer does not cure the initial crime that occurred when the father made a false statement on the 4473 when he first acquired the gun on behalf of his son...

Here:

No, that has nothing to do with who the actual purchaser is. If X has asked Y to buy him a gun and X is putting up the money, X is under the law the actual purchaser; and Y would be violating 18 USC 922(a)(6), making a false statement on the 4473, if he were to claim on the 4473 that he is the actual purchaser.

Later transferring the gun legally to X doesn't change that. Of course if he doesn't transfer the gun legally to X, but does so improperly, a second, separate crime has been committed....

Here:

If the first transfer involves lying on the 4473, subsequent transfers 'doing it right' do not correct the initial crime.

Here:

...The crime is making a false statement on the 4473 regarding who the actual purchaser is (in violation of 18 USC 922(a)(6)). Once the first person makes that false statement on the 4473, the crime has been committed, and what happens afterwards can't change things....

[kemasa]

That is all based on what you think the buyer is. It does not say the "end buyer". I can buy something and I am the actual buyer, even if I intend to flip it. All of the "false statements" are based on the term "buyer". When the PPT is filled out, there is a new seller and a new buyer.

[fiddletown]

That is all based on what you think the buyer is. It does not say the "end buyer". I can buy something and I am the actual buyer, even if I intend to flip it. All of the "false statements" are based on the term "buyer". When the PPT is filled out, there is a new seller and a new buyer.

That's all been covered extensively in this thread and several others -- especially by me, snobord99 and Librarian. I and snobord99 are lawyers.

Here's an example of one of my explanations of the concept:

...Who is the actual purchaser is a question of intent. Who supplies the money is one fact from which intent might be inferred. But if you are buying the gun by arrangement on behalf of another person (i. e., as the agent or proxy of the other person), and even if you are advancing your own money to pay the price, you are not the actual buyer -- your principal is. (On the other hand, it is legal to buy someone a gun as a gift. ....)

Contrary to popular opinion, prosecutors convince a jury of a defendant's intent all the time. Intent is an element of many crimes and can frequently be inferred from actions surrounding an event or transaction, including timing. And sometimes statements made in letters, notes or even posts in an Internet forum can successfully be used as evidence of intent. (And there are numerous exceptions to the hearsay rule that would generally allow such statements to be used as evidence.)...

Hereis one example of Librarian explaining it :

...Here's how that works.

You can buy me a gift.

You fill out the paperwork, and properly identify yourself as the buyer. You take your money, buy the gun, and later transfer the gun to me, following all applicable state and Federal laws. Happy Birthday, Merry Christmas!

That's all fine.

However, if I give you the money, and say to you 'please buy gun X for me', I am the buyer, not you.

If I give you the money, you are not buying the gun, I am. It does not matter that you are the one who goes to the store and fills out the paperwork, any more than if I give you money for beer and a pizza, and it doesn't matter if I give you the money before or after the purchase.

The act of transferring valuable consideration for a good is a commercial transaction, and anyone can do that on behalf of anyone else (though not always legally); the question that concerns BATF is who pays and who receives the benefit - THAT's the buyer.

Most of the time the person engaging in the transaction and who supplies the money and who benefits from the newly acquired good is the same person - but it could be as many as three - financier, purchase-processor, beneficiary (e.g. 'Son, here is $5 - go buy your mother a card for Mother's day': father is financier, son is purchase-processor, mother is beneficiary)

My money, I'm the buyer. Your money, you're the buyer.....

Here I explain it again:

...if --

1. X says to Y, "Here's the money; buy that gun and then we'll do the transfer to me [when I get back to town, or when I get my HSC, or whenever else].", or
   
   
2. X says to Y, "Buy that gun and hold it for me; I'll buy from you when I get my next paycheck."

or anything similar, if Y then buys the gun, he is not the actual buyer. He is buying the gun as the agent of X, on his behalf; and X is legally the actual buyer. If Y claims on the 4473 that he is the actual buyer, he has lied and violated 18 USC 922(a)(6). ...

Here's another:

... as I've written many times before -

[1] If father takes his money, buys the gun and gives the gun to someone else as a gift, free and clear without reimbursement of any kind, father is the actual purchaser; and it is not a straw purchase.

[2] If father takes his money and buys the gun honestly intending to keep it for himself and later sells it to another person, father is the actual purchaser; and it is not a straw purchase.

[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...

And one of snobord99's comments:

...This current example from Fiddle is legal from a straw purchaser prospective precisely because there was no prearranged agreement another particular person would take the firearm. If the father bought the gun thinking "I'm going to buy this and it's going to X (and not as a gift)," then he's not the actual purchaser. If he's thinking "I'm going to buy this and only keep it as long as I can sell it to someone," then he's the actual purchaser. Think of it this way, in the former if X says after the father buys it "I don't want it" father's probably thinking "WTF? I don't want it, you owe me $." In the latter, if father can't sell it at the gun show, he's thinking "oh well, I'll try again later."

[kemasa]

I guess then there is no need for a trial or anything else, it is time to just lock them up, right?

The firearm was purchased and then later transferred with all the required paperwork, but I guess you want to ignore that aspect. With a typical straw purchase there is no additional paperwork to transfer the firearm and the intent is to hide the end buyer, which was not done in this case.