Clarification of straw purchase

[Shanghai guy]

Thanks for the help, guys. Sorry I missed Librarian's thread covering this, I am new and still learning my way around here.

[snobord99]

Let me add a wrinkle.

US v Polk overturned a conviction where the supposed straw purchaser was elligible to possess the firearm at the time anyway.

http://openjurist.org/118/f3d/286/united-states-v-polk

Note however that I haven't had a chance to shephardize this.

-Gene

I believe I shepardized this case a while back (maybe a year ago) and, at the time, the case was still good law but there's a circuit split on the issue.

4th Cir: "[t]herefore, under 922(a)(6), Davis's and Lubin's false statements of the identity of the actual buyer satisfy the "fact material to the lawfulness of a sale" element, regardless of whether the actors were all lawfully eligible to purchase a firearm." United States v. Frazier, 605 F.3d 1271 (4th Cir.).

Also, there's another statute for which a person could be prosecuted for a straw purchase. I can't remember the specific cite for it but I believe it was another subsection of 922. I know I saw a case from a Circuit court distinguishing the two (sub)sections and I recall that the conviction was upheld under the other (sub)section. I think that was out of the 5th Circuit but I'm nowhere near 100% sure about that.

[snobord99]

The key, which you seem to be missing, is that one of the factors of a straw purchase is an intend to hide who the actual purchaser is. For someone who needs to have the word "single" defined in the CA PC, it is quite interesting to see your view on this.

The end of your little strawman argument above is: was the firearm legally transferred from you to the other person by submitting a PPT DROS and that the other person filled out a 4473? Yes or No. The firearm was legally transferred and there was no attempt to hide this person, correct?

Funny that your straw purchase "factor" isn't an element of the crime.

[snobord99]

Here's another question.

How can a purchase be a straw purchase if it is never transfered from the person who completed the DROS?

If itmust be transfered outed the possession of the person who performed the DROS/4473 to be a straw purchase how can the fact that a new DROS/4473 was completed not be relevant?

But you're presupposing that it has to be transferred out of the possession of the person to be a straw purchase legally. It doesn't. 922(a)(6) doesn't prohibit the transfer, it prohibits lying on 4473.

[snobord99]

Actually, I don't think that the money means much of anything other than giving an indication of what might be going on.

What matters is whether the firearm is transferred to someone else in a hidden manner, whether it is legally done (ie. private sale in another state which does not require the transfer through a FFL) or illegally done.

18 USC 922(a)(6) would disagree with you. You focus a lot on the intent to hide the true purchaser, but notice that there's no "with the intent to hide the true purchaser" element in the code?

[strongpoint]

Seems that if you really want to be on the safe side of things, you should only sell firearms you purchase 5 years (or more) after the date of purchase? That way, even if they can "prove" you lied on your 4473, you are immune from prosecution via the statute of limitations. Of course, the real problem here is that there is no strict legal definition of "actual purchaser".

you don't have to wait five years to sell a firearm; that's undiluted FUD. tenpercentfirearms cited this figure in post #8 as an example.

the only way you have lied on question 11.a is if you bought the firearm in question on behalf of another person -- in other words, if your intent at the time of purchase was that the gun would wind up in that specific person's hands as something other than a legitimate, uncompensated gift. simple solution: don't do that.

form 4473 contains some fairly clear guidance on who should be considered the actual buyer. read it -- especially the entirety of question 11.a, the certification paragraph right above the signature line, and the section about 11.a in the instructions on page 4.

At the moment in time when the LEO's purchased those firearms, they were in fact the actual purchaser. The fact that they went through a dealer for the subsequent sale proves this to be true. It doesn't matter if they intended to sell the firearm little later down the road. When they filled out the form 4473, they weren't lying, they WERE the actual purchaser. Now maybe they only intended to own the firearm for 10 minutes, 10 days, or 10 years, it doesn't matter. For that instant in time, they were the actual purchaser.

not true. an LEO or anyone else buying with the intent to resell to a particular individual or individuals would not be the actual purchaser, as outlined above.

Let's say you walk into your local gunshop and you see an original Walker Colt for sale for $1000. You buy it, knowing it's worth far more than your $1000 investment, and after taking possession you immediately auction it off for a huge profit. Illegal? Would it have mattered if you waited a month? A year?

buying in order to resell for a profit -- as long as you're not doing it with such frequency that you become an unlicensed dealer (see below) -- is perfectly legal. when you make the purchase, you can truthfully answer yes on question 11.a because you are buying for yourself, even though your motive is to flip it right away for a profit.

Here's another scenario. Let's say you are a detail freak, and you want the absolute best specimen of a particular firearm. So you buy a dozen of the same gun, try them all out, and end up keeping only the best one. You sell the others a week later. Illegal?

maybe, but not necessarily because there's a straw-purchase issue. from PC 12070:

(a) No person shall sell, lease, or transfer firearms unless he or she has been issued a license pursuant to Section 12071. Any person violating this section is guilty of a misdemeanor.

(b) Subdivision (a) does not include any of the following:

(4) The infrequent sale, lease, or transfer of firearms.

(c)

(1) As used in this section, "infrequent" means:

(A) For handguns, less than six transactions per calendar year. For this purpose, "transaction" means a single sale, lease, or transfer of any number of handguns.
(B) For firearms other than handguns, occasional and without regularity.

if this involves handguns, you might also run into the one-in-30 limit -- PPTs are exempt, but not in LA (jeez), according to the CGF wiki. also, i presume you can see how dumping this number of firearms might raise a red flag in the AG's office. if i were selling the 11 guns in your example, i would be ready to answer any questions the DOJ/BOF might have.

[strongpoint]

Not to sir the pot but one question comes to mind reading these arguments. A lot of this seems to hinge on whether or not the secondary buyer can legally buy the gun or not. And in the case of an off roster handgun the argument is that since its off roster the secondary non LEO buyer can't legally buy the gun. Here's my question: is it the buying of the gun that is illegal or the selling of it by the FFL?

As I understand it, is the sale that is prohibited. If so then there was no straw transaction. Just because you cannot sell me something does not mean it its illegal for me to buy it.

i think you're misunderstanding the case in the OP. FFLs weren't selling the guns in question; LEOs were. LEOs can legally buy off-roster handguns. they can also legally transfer those guns to other buyers face-to-face, since PPTs are roster-exempt. also, the roster is defined by california law, so the feds wouldn't be interested in roster violations.

as for what the accused could be prosecuted for, see above.

[tenpercentfirearms]

Please go read this thread again since there is new data there.

http://www.calguns.net/calgunforum/showthread.php?t=562886&page=5

Fiddletown claims to be a lawyer and does a rather nice job outlining what I have already attempted to outline. Kemasa will be posting up where he got his law degree shortly. It might have been from the NSSF website.

[dantodd]

But you're presupposing that it has to be transferred out of the possession of the person to be a straw purchase legally. It doesn't. 922(a)(6) doesn't prohibit the transfer, it prohibits lying on 4473.

But if there is another 4473 on the subsequent transfer to the next owner doesn't that suggest that the initial buyer believed that they were, in fact, the actual buyer? If they believed somone else was actually the buyer why would they need to execute another 4473? While I agree completely that in the case of using another person's money you are not the "actual buyer" but to use your own money and then properly document any subsequent transfers seems the very definition of being the "actual buyer."

[tenpercentfirearms]

While I agree completely that in the case of using another person's money you are not the "actual buyer" but to use your own money and then properly document any subsequent transfers seems the very definition of being the "actual buyer."

I think we are all in agreement there. If you use your own money you are the buyer. If you use someone else's money, you are not the buyer.

[strongpoint]

But if there is another 4473 on the subsequent transfer to the next owner doesn't that suggest that the initial buyer believed that they were, in fact, the actual buyer? If they believed somone else was actually the buyer why would they need to execute another 4473? While I agree completely that in the case of using another person's money you are not the "actual buyer" but to use your own money and then properly document any subsequent transfers seems the very definition of being the "actual buyer."

why should it matter what the initial buyer believes? what matters is a) what the initial buyer actually did, and b) what the law actually prohibits. ignorantia juris non excusat ("ignorance of the law is no excuse") has been firm legal principle since rome.

the 4473 defines "buyer" as "the person for whom the firearm is intended," not "the person who is putting up the money right this second." the exact wording on the form is:

warning: you are not the actual buyer if you are acquiring the firearm(s) on behalf of another person.

in boldface type. the responsibility for understanding that falls upon the person who signs the form, and the principle in question is explained in several places for anyone who cares to read it.

I think we are all in agreement there. If you use your own money you are the buyer. If you use someone else's money, you are not the buyer.

don't take "money" too literally. if i purchase a firearm intending to transfer it to dantodd in exchange for any consideration (i.e., not a gift), it's a straw purchase -- even if the consideration dantodd plans to pay me with is, say, mowing my lawn for the next six months.

[BigJ]

i think you're misunderstanding the case in the OP. FFLs weren't selling the guns in question; LEOs were. LEOs can legally buy off-roster handguns. they can also legally transfer those guns to other buyers face-to-face, since PPTs are roster-exempt. also, the roster is defined by california law, so the feds wouldn't be interested in roster violations.

as for what the accused could be prosecuted for, see above.

Thanks. I think you're right. What got me confused that someone said:

...one of the factors of a straw purchase is an intend to hide who the actual purchaser is.

and in response, someone else said:

...The end user did not purchase the firearm directly from the FFL because the end user could not lawfully purchase the firearm from the FFL. So the end user had the officer purchase the firearm for them by concealing their identity on the officer's 4473.

The way I read that its on buyer's purchase-ability / legal state that defines (in part) a straw purchase. Its a very different thing to say the FFL could not lawfully *sell* the firearm to the end user.

So my question was if the secondary buyer can legally own and purchase firearms, is it a "straw" purchase if the seller can't sell the firearm to him directly because of laws imposed on the seller?

That's probably picking knits. But the distinction between legal purchase and legal sale seems to have been glossed over (probably because it doesn't matter in this case?)

[dantodd]

Please go read this thread again since there is new data there.

http://www.calguns.net/calgunforum/showthread.php?t=562886&page=5

Fiddletown claims to be a lawyer and does a rather nice job outlining what I have already attempted to outline. Kemasa will be posting up where he got his law degree shortly. It might have been from the NSSF website.

I've met Fiddletown a number of times, he is a real attorney and pretty much dead on AFAIK.

[fiddletown]

I believe I shepardized this case a while back (maybe a year ago) and, at the time, the case was still good law but there's a circuit split on the issue.

4th Cir: "[t]herefore, under 922(a)(6), Davis's and Lubin's false statements of the identity of the actual buyer satisfy the "fact material to the lawfulness of a sale" element, regardless of whether the actors were all lawfully eligible to purchase a firearm." United States v. Frazier, 605 F.3d 1271 (4th Cir.).

Also, there's another statute for which a person could be prosecuted for a straw purchase. I can't remember the specific cite for it but I believe it was another subsection of 922. I know I saw a case from a Circuit court distinguishing the two (sub)sections and I recall that the conviction was upheld under the other (sub)section. I think that was out of the 5th Circuit but I'm nowhere near 100% sure about that.

The other statute is 18 USC 924(a)(1)(A), and the case is United States v. Johnson (9th Circuit, No. 11-10290, 29 May 2012, For Publication). This is the case called to our attention by dantodd in post 28.

18 USC 924(a)(1) provides, in pertinent part (emphasis added):

(A) knowingly makes any false statement or representation with respect to the information required by this chapter to be kept in the records of a person licensed under this chapter or in applying for any license or exemption or relief from disability under the provisions of this chapter;

(B) ...;

(C) ...; or

(D)...,

shall be fined under this title, imprisoned not more than five years, or both....

This seems to avoid the issue identified in the split between Circuits you've noted.

924(a)(1)(A) had not previously been on my radar screen in connection with this issue. But it certainly reinforces, as noted by the 9th Circuit, that the offense generally called a straw purchase is making a false statement regarding who is the actual purchaser -- without regard to whether the subsequent transfer contemplated by the straw purchase is (1) legal; or (2) "on the books."

[kemasa]

Yes you are. Go look. We have argued about two issues in the past. Adding a long gun to a handgun DROS and adding long guns to an incomplete transaction. You are confused on which one is which. Again, not surprisingly either. You have always had a hard time keeping up with these things.

Sorry, but you are the one who is confused because you keep saying different things, perhaps because don't want to admit to what you are doing. Yes, it is hard to keep up with someone who keeps changing what they are saying.

Read the 4473 again. No where does it mention anything about other 4473s or additional paperwork. It says So why are you still completing DROS? Because the ATF and DOJ tell you to? Why are you bowing to your DOJ masters? LOL. Just blatantly ignore the clear instructions on the 4473. Get some Kemasa! Get some!

That is so funny. You are grasping at straws to try to defend your position.

Where does it say on the 4473 what you have to do in order to sell a firearm to another person? Why wouldn't it say what to do? For some strange reason you seem to think that the 4473 should document everything and if it doesn't, it proves your claimed point.

In fact, put your money where your mouth is. Have someone give you some money, run a DROS and use a 4473 to buy them a gun, then PPT it to them. Post up your 4473 control numbers, your banks statements, and send it to the DOJ. If you are so sure what you are doing is legal, then you wouldn't mind doing that right?

Just because it would be legal does not mean it is a good idea to do.

So if someone loaned me money to buy a good deal on a firearm so that I could sell it and make money, that would be illegal, right? You had best not use your credit card to buy any firearms since that is money from another source.

LOL! You won't, which proves you are advocating illegal activity while not doing it yourself. LOL some more. You are such a hypocrite. However, that doesn't bother me. You are entitled to your own opinion, even if it is not consistent with your other opinions. Some people are just that way.

Sorry, but you are just plain wrong. Unlike you, who have promote illegal activity, I have not.

I don't think that you have thought this all through and are instead just reacting. You seem to think that the second the person bought the firearm it is a straw purchase, but what if the person never gives it to the other person. Oh, it is just about the money. If you give me the money to buy a gun for you and I buy the gun, have I committed a crime? I suspect you would say yes, but what if I never give it to you? Does that change the crime from a straw purchase to fraud? When does it change?

What would be interesting would be if a LEO were to also have a FFL since then they could buy the firearm personally and not have to fill out a 4473. Then they could sell it, but it would have to go through their own book. Would you also consider that a straw purchase?