Ever buy a gun for someone else (a friend or relative who is lawfully allowed to own firearms)? Maybe as a favor because you are at a gun show they could not attend, you have a Gunbroker account and they do not, or because you get a LEO or other discounted price? Tread lightly, you might wind up “breaking bad.” A criminal conviction in one such case will be reviewed by the U.S. Supreme Court. Review was granted by order of October 15, 2013. Expect the court’s opinion in the Spring of 2014. (Abramski v. United States, Docket No. 12-1493).
Bruce James Abramski, a former Virginia police officer, purchased a Glock Model 19 from a Virginia dealer for his uncle who lived in Pennsylvania. The uncle had sent a check to Abramski for the Glock. Abramski was advised (incorrectly) by more than one FFL holder that the proper way to conduct the transaction was for him to purchase the Glock from a Virginia FFL and then transfer it to his uncle via a Pennsylvania FFL. He followed their advice. In completing Form 4473 with the Virginia licensee, he answered “YES” that he was the “actual buyer.” The particular question and related instructions for the form are as follows:
11.
a. Are you the actual transferee/buyer of the firearm(s) listed on this form? Warning: You are not the actual buyer if you are acquiring the firearm(s) on behalf of another person. If you are not the actual buyer, the dealer cannot transfer the firearm(s) to you.(See Instructions for Question 11.a.)
NOTICE, INSTRUCTIONS AND DEFINITIONS
Question 11.a. Actual Transferee/Buyer:
For purposes of this form, you are the actual transferee/buyer if you are purchasing the firearm for yourself or otherwise acquiring the firearm for yourself (e.g., redeeming the firearm from pawn/retrieving it from consignment, firearm raffle winner). You are also the actual transferee/buyer if you are legitimately purchasing the firearm as a gift for a third party.
ACTUAL TRANSFEREE/BUYER EXAMPLES: Mr.Smith asks Mr. Jones to purchase a firearm for Mr.Smith. Mr. Smith gives Mr.Jones the money for the firearm. Mr.Jones is NOT THE ACTUAL TRANSFEREE/BUYER of the firearm and must answer “NO” to question 11.a. The licensee may not transfer the firearm to Mr. Jones. However, if Mr. Brown goes to buy a firearm with his own money to give to Mr. Black as a present, Mr. Brown is the actual transferee/buyer of the firearm and should answer “YES” to question 11.a. However,you may not transfer a firearm to any person you know or have reasonable cause to believe is prohibited under 18U.S.C.§922(g), (n), or (x).
Abramski was a suspect in a bank robbery (state charges were dismissed and he was never charged with federal bank robbery). The FBI executed a search warrant and found the paperwork respecting the Glock purchase. As a result, he was charged with two felonies: Making a material false statement on the Form 4473, and causing the Virginia licensee to make a false entry on required FFL records. Both charges were directed at his name being falsely reflected as the actual buyer. He entered a conditional guilty plea to reserve his right to appeal. The U.S. Court of Appeals affirmed his conviction. Following the holdings of other appeals courts, except one, the court held that the identity of the actual purchaser is always material to the lawfulness of a purchase. In other words, the “straw” purchase prohibition applies even when the firearm is being purchased for another who is not a prohibited person. (Note, it was quite clear Abramski was put on notice of buying a firearm for another not a gift by the form’s instructions, and he should have therefore answered “NO.” The licensee would have then refused the transaction).
I believe barring some application of the rule of lenity, the Court’s focusing just on the question on the form and not the accompanying explanation and example, or the Court finding a procedural irregularity on the implementation of the “actual buyer” interpretation by the ATF, it will affirm Abramski’s conviction, despite the fact that his uncle could legally own firearms and that he was advised by FFL’s how to effect the transaction. (Advice from an ATF employee with authority to opine on the law might have made a difference). The offenses in question are false statement type offenses, not gun “running” or the sale of firearms to prohibited persons.
I hope the Court gives some direction to a more common occurrence which to some presents a continuing morass. That is, when someone purchases a gun with their own funds knowing they are likely going to sell it in days or weeks after minimal or no use, for the price paid, but have no particular transferee in mind. I think the answer is quite clear that person is the “actual buyer” in such circumstances, and ordinarily, need not be a FFL license holder to sell it. I welcome some inkling from the Court as to its view of the law on that, regardless of how it rules on Abramski’s conviction.
You can view the Abramski Supreme Court legal papers, including a friend of the court filing by the NRA, here. Abramski was convicted of violating 18 U.S.C. § 922(a)(6) and 924(a)(1)(A)
This sure seems to be something that’s going to be penumbra’d.
The 4473 regulation serves the law making it illegal for a prohibited person from buying a gun. It’s quite clear that since neither party was prohibited the LAW wasn’t broken… It’s all these pesky regulations from Congress abdicating their legislative authority to the numerous bureaucracies that’s the heart of the issue.
A recent successful prosecution reflects the ATF view if you purchase a serialized AR-15 lower which you intend to build out and sell to an already identified buyer, you have made a false statement on Form 4473 when you representrf you are the actual buyer. (An unlicensed person should not be building AR-15s to sell to others).
The Supreme Court heard oral argument in the case yesterday. Sometime Friday, the Court will post the argument audio. I will post the link to it, and maybe some commentary ASAP thereafter.
Here’s the link to the audio of the argument before the U.S. Supreme Court:
http://www.supremecourt.gov/oral_arguments/argument_audio_detail.aspx?argument=12-1493&TY=2013
I will be very surprised if the conviction is reversed. One count maybe. This is not a case about the Second Amendment or private sale gun rights. It is about false statements, one on a form which had instructions which gave Mr. Abramski more than a clue he might be “breaking bad.” A couple of points worth noting: (1) a person who resides out of state is ineligible to purchase a handgun, without FFL receipt in state, so it is not much different than a barred “straw” purchase for a convicted felon, and; (2) it is a crime to answer a question falsely, even if the government has no right to ask the question.