Please Help--Quick Straw Purchase Question

[JagerDog]

Do you really think anyone would believe you?

Do you really think a DA is going to take this up? The check to his dad said "Happy Father's Day" and the eventual gift includes a card that says "to a wonderful son". The "paper trail" IS the evidence. Any burden of proof the contrary is on the DA.

[fiddletown]

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

How in the world did you get to there? We're discussing the elements of the crime of making of making a false statement on the 4473 regarding who the actual purchaser of the firearm is. Any crime has certain elements that constitute that crime. And in discussing a type of crime in general terms, it is common for lawyers to talk in terms of those elements.

If a prosecutor thinks a crime has been committed by a particular person in a particular case, that person is brought to trial. The purpose of the trial is to decide if that person actually did commit the crime.

One of the things a lawyer might do for a client is help the client understand how to conduct his affairs in a way that avoids the doing things that are the elements of a crime.

...The firearm was purchased and then later transferred with all the required paperwork, but I guess you want to ignore that aspect...

As I and Librarian (and a few others in this thread) have pointed out, a subsequent transfer in accordance with the required paperwork doesn't cure a straw purchase. The straw purchase is really the false statement on the 4473 regarding who the actual purchaser is.

That is, in fact, how BATF sees it as well. See (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. ...

...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.

Care to cite some legal authority for that proposition?

Indeed in many States, a gun may be transferred from one resident of that State to another without any formalities -- no DROS, no 4473, no background check. In many States that would be a perfectly legal transfer. But a legal, private party transfer, without formality, where permitted, will not erase an initial crime that occurred when the gun was initially obtained from a dealer by making a false statement on the 4473 regarding who the actual purchaser is.

Do you really think a DA is going to take this up? ...

That's not about whether you broke the law. That's about whether you can get away with it.

[kemasa]

How in the world did you get to there? We're discussing the elements of the crime of making of making a false statement on the 4473 regarding who the actual purchaser of the firearm is. Any crime has certain elements that constitute that crime. And in discussing a type of crime in general terms, it is common for lawyers to talk in terms of those elements.

Because YOU have already decided that a straw purchase has occurred, when that is really in question.

If a prosecutor thinks a crime has been committed by a particular person in a particular case, that person is brought to trial. The purpose of the trial is to decide if that person actually did commit the crime.

One of the things a lawyer might do for a client is help the client understand how to conduct his affairs in a way that avoids the doing things that are the elements of a crime.

As I and Librarian (and a few others in this thread) have pointed out, a subsequent transfer in accordance with the required paperwork doesn't cure a straw purchase. The straw purchase is really the false statement on the 4473 regarding who the actual purchaser is.

Since the firearm has not been transferred to the next person as they have not touched it, how can you say that it was a straw purchase? If the person filling out the form decides, for whatever reason, to not give the firearm to the person, then how can it be a straw purchase?

You have decided it already, so nothing is going to change your mind.

That is, in fact, how BATF sees it as well. See (Federal Firearms Regulation Reference Guide, 2005, at page 165 (emphasis added)):

You need to read that more carefully and not just see what you want to see. It assumes that no other transfer occurs which documents the firearm going from one person to another through a FFL.

If you look at the don't lie web site, you will see that one aspect is trying to keep the person's name off the transaction, which does not apply if a DROS and 4473 is submitted.

Care to cite some legal authority for that proposition?

I already have.

Indeed in many States, a gun may be transferred from one resident of that State to another without any formalities -- no DROS, no 4473, no background check. In many States that would be a perfectly legal transfer. But a legal, private party transfer, without formality, where permitted, will not erase an initial crime that occurred when the gun was initially obtained from a dealer by making a false statement on the 4473 regarding who the actual purchaser is.

That creates a different situation since the end buyer would not be documented. You need to not ignore that in CA the transfer has to go through a FFL and that documents who is getting the firearm.

That's not about whether you broke the law. That's about whether you can get away with it.

Funny, but first you have to be sure that the law was broken. If it has not been broken, then there is no issue as to whether you are getting away with anything.

I think that part of the problem is that you are making some assumptions as to what a straw purchase is. What do you really think that the issue is with a straw purchase? What do you think the point of the law regarding straw purchases is?

[fiddletown]

Because YOU have already decided that a straw purchase has occurred, when that is really in question.....

I've described the elements of the crime in question, called a straw purchase. But the crime is actually making a false statement on the 4473 regarding who the actual purchaser is.

Now the hypothetical that has been running all through this thread is that Y wants a gun, and he wants X to buy it for him. So if Y makes, in one for or another, an arrangement with X that X will buy the gun, either with money that Y gives him or by advancing his (X's) own funds to later be reimbursed by Y, and transfer it to him (Y), X would be buying the gun on behalf of (as the agent or proxy for) Y. Under those circumstance, were X to claim on the 4473 that he is the actual purchaser, he would be lying.

Under those circumstance, under the principles of agency law, Y would be considered the actual buyer. So X, by claiming to be the actual buyer, would be making a false statement on the 4473 and thus violate 18 USC 922(a)(6).

Those are the facts that constitute the elements of the crime: an existing arrangement between two people for one person to buy a gun from an FFL on behalf, as the agent or proxy for, the other person with the intent of transferring that gun to the other person. When those facts exist, the crime of making a false statement on the 4473 regarding the actual buyer has taken place. In a particular case in which the crime was charged, the trial would be for the purposes of determining if those facts were true.

One of the issue will be establishing with evidence the core element of the crime, i. e., that the defendant was buying the gun on behalf of, as agent or proxy for, another person. So --

• The source of the money to buy the gun would be material. If Y gives X the money up front, that would be a fact from which it could be inferred that X is buying the gun on behalf of Y. Similarly, if there's evidence (like a note or letter or conversation overheard by third party) that Y has promised to reimburse X, that would also be evidence from which it could be inferred that X was buying the gun on behalf of, as the agent or proxy for, Y.
  
  
• Other consideration flowing from Y to X could also be material. Maybe cash isn't changing hands, but there's some other type of underlying trade, e. g., cancellation of a preexisting debt, an agreement to render a service. That sort of thing could also allow a trier of fact to conclude that X is buying the gun on behalf of, as the agent or proxy for, Y.
  
  
• The actual subsequent transfer of the gun by X to Y would also be evidence that X was buying the gun on behalf of, as the agent or proxy for, Y. The transfer isn't, in and of itself, an element of the crime. But it goes to show intent. And as a practical matter, it would be hard to prove a this sort of violation without some actual, subsequent transfer.

But note also, that (1) it doesn't matter that the subsequent transferee may lawfully possess a firearm; and (2) it doesn't matter if the subsequent transfer is lawful.

Note also that there are a number of sorts of transaction which might look like a straw purchase, but would not be. So --

• If X takes his money, buys the gun and gives the gun to Y as a gift, free and clear without reimbursement of any kind, X is the actual purchaser; and it is not a straw purchase.
  
  
• If X takes his money and buys the gun honestly intending to keep it for himself and later sells it to Y, X is the actual purchaser; and it is not a straw purchase.
  
  
• If X 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, X 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.

...You have decided it already, so nothing is going to change your mind....

Phooey!

...You need to read that more carefully and not just see what you want to see. It assumes that no other transfer occurs which documents the firearm going from one person to another through a FFL....

The BATF doesn't address that because it's irrelevant.

Or do you believe that it's not a straw purchase if the subsequent transfer goes through an FFL, but that is is a straw purchase if the subsequent transfer is a completely legal private party transfer, without formalities between residents of the same State (but not California, of course)? Or how about if it's an intrafamilial transfer in California, which doesn't require an FFL?

...If you look at the don't lie web site, you will see that one aspect is trying to keep the person's name off the transaction,...

First, the Federal Firearms Regulation Reference Guide, 2005 published by the ATF to furnish guidance to licensees is certainly a more comprehensive and authoritative source than the NSSF public service web page. Second, the transaction descriptions in the NSSF site are illustrative and not exhaustive. Third, cite a statute (not a public service message) that makes keeping one's name off the transaction as an element of a straw purchase.

[fiddletown]

Care to cite some legal authority for that proposition?

...I already have....

Just to be clear, you have not cited legal authority. The NSSF public service website is not legal authority. It could not be cited in court to support your contention.

[strongpoint]

I think that part of the problem is that you are making some assumptions as to what a straw purchase is. What do you really think that the issue is with a straw purchase? What do you think the point of the law regarding straw purchases is?

this was answered logically and definitively in post #27 of this very thread about six weeks ago (not that fiddletown isn't on point; he is). you should follow the link -- it's a good read, but here's the executive summary:

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) ...

The BATF via the 4473 expects, and enforces, that all three possible roles (again, financier, purchase-processor, beneficiary) are one and the same person. When more than one person fills these roles, BATF calls it a straw purchase.

an elaboration from the same source:

If at a later date you choose to sell the gun to someone else, fine. You can choose to give the gun as a gift; that's OK, too.

If there's some kind of deal, some understanding that the buyer is buying with the intent to later transfer it to a second party, and it's not a gift, not fine.

Proving intent may be difficult; being apprehended may be unlikely.

But lying on the 4473, about who is the actual buyer, is defined as illegal.

You need to believe this. You need to actively decide, with complete information, whether you care to risk 5 years in Federal prison to get a gun for another person. Once you decide, then you should act in the way that you perceive serves your own interests.

[snobord99]

...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.

I actually disagree with you on this point. The firearm doesn't have to go to anyone else for the straw purchase to have legally happened (a second transaction doesn't fix the illegality of the first). That said, it would be pretty damn near impossible to prove the straw purchase without a second transaction (unless the straw purchaser is a total moron).

For example, say A asks B to buy a firearm for him which they will later transfer to A through FFL/PPT transaction. Neither A nor B are prohibited persons. B agrees and makes the purchase checking that magical box on 4473 we keep discussing. Say after B picks up the firearm, A changes his mind and refuses to pay B for the firearm. B is pissed and sues A and testifies that he purchased the firearm for A and had no intention of keeping it for himself. At this point, no second transaction has taken place, but B just admitted to lying on 4473 and a 922(a)(6) conviction should be a slam dunk for any AUSA.

[snobord99]

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.

Yes, you're right. That is, in fact, what a typical straw purchase is. But when did an atypical straw purchase stop being a straw purchase?

[fiddletown]

I actually disagree with you on this point. The firearm doesn't have to go to anyone else for the straw purchase to have legally happened (a second transaction doesn't fix the illegality of the first). That said, it would be pretty damn near impossible to prove the straw purchase without a second transaction (unless the straw purchaser is a total moron).

For example, say A asks B to buy a firearm for him which they will later transfer to A through FFL/PPT transaction. Neither A nor B are prohibited persons. B agrees and makes the purchase checking that magical box on 4473 we keep discussing. Say after B picks up the firearm, A changes his mind and refuses to pay B for the firearm. B is pissed and sues A and testifies that he purchased the firearm for A and had no intention of keeping it for himself. At this point, no second transaction has taken place, but B just admitted to lying on 4473 and a 922(a)(6) conviction should be a slam dunk for any AUSA.

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.

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)):

...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...

[kemasa]

This is an interesting statement:

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.

What does it actually say?

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.

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.

[strongpoint]

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.

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

[kemasa]

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

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.

[Deadbolt]

maybe i missed it but : If you father does the transfer to you via family clause....

... and you are not legally able to otherwise own a gun (be it handgun or longarm) ...

.. then your father is committing a felony (and so are you, once again.)

now - should the only thing you are lacking be an HSC = spend the couple bucks and answer 30 of the easiest questions of your life.


4pages. 4pages.

@ 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 ( which occurs anyway with an inter-family transfer ? doesnt it?)

Now if pops sold it to you at an inflated price and did this regularly ... then thats an entirely different matter.

[strongpoint]

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.

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.

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.

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.

[strongpoint]

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

wrong. go back and read this thread more closely.