Supreme Court Affirms Conviction In Gun “Straw Purchase” Case

Supreme Court Affirms Conviction In Gun “Straw Purchase” Case

[Edit: The title of this post was edited to better reflect the Court’s ruling.]

This morning the US Supreme Court released it’s ruling in Abramski v. United States–the firearm “straw purchase” gun case–in which it affirmed Abramski’s convictions.  (The full-length opinion is embedded at the bottom of this post.)

In reaching it’s decision the majority–led by Kagan, and including Ginsburg, Breyer, Sotomayor and the necessary swing-vote, Kennedy–the Court took a very broad interpretation of the government’s statutes, regulations, and even mere practice in narrowing the scope of lawful 3rd-party purchases of firearms, arriving at their conclusion less by looking at the actual statutes and regulations and more by looking at their perception of the “context” and intended “purpose” of those statutes and regulations.

Facts

The defendant in this case, Abramski, arranged to purchase a Glock 19 for his uncle, Alvarez.  Abramski had previously been a law enforcement officer, and it is common practice for law enforcement officers to be able to purchase firearms at a discount to the price generally available to the public.

Although Abramski had been fired from his LEO job two years prior, he retained his police officer identification, and intended to use that ID to purchase the pistol for his uncle at a favorable price.

The Uncle wrote Abramski a check for $400 with “Glock 19” written in the memo field.

Two day later Abramski appeared at an FFL (a Federal Firearms Licensee, through which most gun sales are required to occur) and purchased the gun.  In the process of doing so he completed the Federally required Form 4473.  Form 4473 asks for particular personal information, and also asks the buyer to reply to a series of interrogatories.

Among the questions asked was 11.a, which asks whether the purchaser is the “actual buyer” of the firearm.  Abramski answered in the affirmative–absent which the sale would not have been processed by the FFL.  He also signed an acknowledgement that a false answer to 11.a constituted a felony.

Abramski’s purchase cleared the NICS (National Instant Criminal Background Check System) and the FFL sold him the Glock.

Abramski then deposited the check from his uncle, transferred the gun to his uncle (lawfully, using an FFL in his uncle’s state, which differed from his own), and received a receipt in return.

This receipt was to later be discovered by Federal agents executing a warrant on Abramski as part of an investigation into other alleged wrongdoing.

Prior Legal History

Abramski was indicted on two charges, the violation of Federal statutes §922(a)(6)–making a false statement re: a fact material to the lawfulness of the sale–and §924(a)(1)(A)–making a false statement re: any information required to be kept on file by an FFL.

At trial he submitted motions to dismiss both charges.  With respect to the “lying re: lawfulness of the sale” charge  he argued that he had not violated this law on the basis that his uncle was legally eligible to own a gun.  With respect to the “lying re: information kept on file” he argued that the “actual buyer” question to which he lied is not among the specifically enumerated pieces of information required to be so kept on file.  When the District Court denied these motions Abramski entered a conditional guilty plea preserving his right to appeal, and was sentenced to two concurrently five year sentences.

Upon appeal the 4th Circuit Court of Appeals affirmed his convictions.  It noted in its decision that there was a split among the appellate courts on these issues, however.  The 5th Circuit agreed with Abramski’s position on the first issue, that a third-party purchase is lawful if the ultimate receiver of the firearm would have been lawfully permitted to purchase the gun themselves.  Two other circuits, however, disagreed, and the 4th Circuit elected to adopt this majority position.    With an eye primarily to addressing this split in the appellate courts, the Supreme Court granted certiorari last year.

Abramski’s Supreme Court Arguments

Before the Supreme Court Abramski renewed his §922(a)(6) “lying re: lawfulness of the sale” argument that the sale ought to be deemed lawful if, as here, it would have been lawful for the final recipient to purchase the gun themselves.  In parallel, however, he expanded this argument to cover even circumstances in which the final recipient would not have been able to lawfully purchase the gun.  This broader argument is based on the notion that §922(a)(6) in fact never reaches beyond the initial purchaser, concerning itself only with the individual standing across the counter from the FFL, with no reach beyond that individual.

With respect to the §924(a)(1)(A) “lying re: information kept on file” Abramski concedes that section does indeed require the FFL to keep on file a lengthy list of enumerated peices of information, including:

. . . transferee’s name, sex, residence address (including county or similar political subdivision), date and place of birth; height, weight and race of the transferee; the transferee’s country of citizenship; the transferee’s INS-issued alien number or admission number; the transferee’s State of residence . . .

Nowhere among that list of information to be kept on file, however, is that covered by question 11.a:  whether the person initially purchasing the gun is the “final buyer.” Therefore, he could not have violated §924(a)(1)(A) by having lied in response to that question.

Kagan’s Majority Opinion Re: §922(a)(6) “lying re: lawfulness of the sale”

Kagan hinges her opinion on the rather straightforward expedient of looking through the initial buyer of the gun to the final purchaser, and setting that ultimate owner in the position of “person” and “transferee” described in the relevant statutes.  She does this on the grounds that the failure to do so, and to follow Abramski’s argument

would undermine–indeed, for all important purposes, would virtually repeal, the gun law’s core provisions

which she describes as including the key goals of verifying a would-be purchaser’s identity and background (as well as ensure required information was kept on file by the FFL).

She continues that

All the prerequisites for buying a gun . . . refer to a “person” or “transferee.” Read Abramski’s way (“the man at the counter”), those terms deny effect to the regulatory scheme, as criminals could always use straw purchasers to evade the law.  Read the other way (“the man getting, and always meant to get, the firearm”), those terms give effect to the statutory provisions, allowing them to accomplish their manifest objects.  That alone provides more than sufficient reason to understand “person” and “transferee” as referring not to the fictitious but to the real buyer.

and

Contrary to [Abramski’s] contention, the information Question 11.a. requests–“[a]re you the actual transferee/buyer[?]” or, put conversely, “are [you] acquiring the firearm(s) on behalf of another person[?]”–is relevant to the lawfulness of a gun sale.  That is because for all the reasons we have given, the firearms law contemplates that the dealer will check not the fictitious purchaser’s but instead the true purchaser’s identity and eligibility for gun ownership.  By concealing that Alvarez was the actual buyer, Abramski prevented the dealer from transacting with Alvarez face-to-face, see §922(c), record his name, age and residence, §922(b)(5), inspecting his photo ID, see §922(t)(1)(C), submitting his identifying information to the background check system, see §922(t)(1)(B), and determining whether he was prohibited from receiving a firearm, see §922(d).  In sum, Abramski thwarted application of essentially all of the firearms law’s requirements.  We can hardly think of a misrepresentation any more material to a sale’s legality.

Kagan’s Majority Opinion Re: §924(a)(1)(A) “lying re: information kept on file”

With respect to Abramski’s argument that he cannot be convicted of violating §924(a)(1)(A) because the information which he falsely provided–his response to Q.11.a re: whether he was the “actual buyer”–is not enumerated among the pieces of information the FFL is required by statute to keep on file, Kagan simply disagrees. Because Form 4473 itself must be kept on file, she argues for the majority, and Q.11.a is part of Form 4473, Abramski did, in fact, make a false statement regarding information that was to be kept on file, thereby violating §924(a)(1)(A).

Scalia’s Dissent Re: §922(a)(6) “lying re: lawfulness of the sale”

Scalia authored the dissent, in which he was joined by Roberts, Thomas, and Alito.  With respect to §922(a)(6) “lying re: lawfulness of the sale” Scalia simply rejects the majority’s designation of the ultimate recipient of the gun as the “person” or “transferee” contemplated by the Gun Control Act.  Of the majority’s contention that the Act’s principal purpose was to keep firearms out of the hands of those not legally entitled to have them, and that this “purpose” requires that Abramski’s uncle be deemed the “person” to whom the “dealer” sold the gun, Scalia responds

The majority’s purpose-based arguments describe a statute Congress reasonably might have written, but not the statute it wrote.

Scalia acknowledges that certainly one purpose of the Act was to increase the difficulty for ineligible persons to acquire guns, but that purpose was not an absolute.  Indeed, he notes numerous circumstances under which both Government itself acknowledges that one person can buy, through an FFL transfer, a firearm with the full intent of promptly delivering that firearm to a third person who was no part of the FFL transaction, including

Guns Intended as Gifts. In the government’s view, an individual who buys a gun “with the intent of making a gift of the firearm to another person” is the gun’s “true purchaser.” The Government’s position makes no exception for situations where the gift is specifically requested by the recipient (as gifts sometimes are).  So long as no money changes hands, and no agency relationship is formed, between gifter and gifteee, the Act is concerned only with the man [“buyer”] at the counter.

Guns Intended for Resale.  Introducing money into the equation does not automatically change the outcome.  The Government admits that the man at the counter is the true purchaser even if he immediately sells the gun to someone else.  And it appears the Government’s position would be the same even if the man at the counter purchased the gun with the intent to sell it to a particular third party, so long as the two did not enter into a common-law agency relationship.

Intended as Raffle Prizes.  The Government considers he man at the counter the true purchaser even if he is buying the gun “for the purpose of raffling [it] at an event”–in which case he can provide his own information on Form 4473 and “transfer the firearm to the raffle winner without a Form 4473 being completed or a [background] check being conducted” on the winner.

He wonders:

Why is the majority convinced that a statute with so many admitted loopholes does not contain this particular [“straw purchase”] loophole? . . . What the scenarios described above show is that the statute typically is concerned only with the man at the counter, even when that man is in a practical sense a “conduit” who will promptly transfer the gun to someone else.

He also comments on the inevitable compromises that are required to pass any complex piece of legislation, noting that:

Perhaps those whose votes were needed for passage of the statute wanted a lawful purchaser to be able to use an agent.  . . . We must accept that Congress, balancing the conflicting demands of a divided citizenry, “‘wrote the statute it wrote’–meaning, a statute going so far and no further.”

He also noted that the ATF itself did not adopt the “straw purchase” position until 1976, fully 8 years after the passage of the 1968 Gun Control Act, at which time it changed to favor the “straw purchase” purchases are illegal position.  (NOTE:  This would seem to have implications for the currently existing “gifts” and “raffle prizes” exceptions, as it would seem that the ATF could as easily eliminate those by a mere shift in policy.)

Having argued that the Act does not, in fact, intend to pierce the “man at the counter” at all, he goes on to argue that even if the statute is merely ambiguous on this point the benefit of that ambiguity should go to the defendant.  This, he argues, is particularly so where the Government itself had for man years the opposite of its current interpretation, where such earlier interpretation would have favored the defendant.

Scalia’s Dissent Re: §924(a)(1)(A) “lying re: information kept on file”

With respect to the §924(a)(1)(A) “lying re: information kept on file” issue, Scalia merely details the specific enumerated types of information the Act requires be filed by the FFL, and notes that Question 11.a re “real buyer” is not among them.  He notes that under the majority’s opinion

any “false answer on that Form”–even an answer to a question that is not among those enumerated in the regulation–necessarily “pertains to information a dealer is statutorily required to maintain.”

This, he notes in response,

carries the text of the statute a bridge too far.  On the majority’s view, if the bureaucrats responsible for creating Form 4473 decided to ask about the buyer’s favorite color, a false response would be a federal crime.  That is not what the statute says. The statute punishes misstatements “with respect to  information required to be kept, §924(a)(1)(A), not with respect to “information contained in forms required to be kept.”  Because neither the Act nor any regulation requires a dealer to keep a record of whether a customer is purchasing a gun for himself or for an eligible third party, that question had no place on Form 4473.  . . .  Information regarding Abramski’s status as a “straw purchaser” was not “information required to be kept,” and that is an end of the matter.

He concludes:

The Court makes it a federal crime for one lawful gun owner to buy a gun for another lawful gun owner. Whether or not that is a sensible result, the statutes Congress enacted do not support it–especially when, as is appropriate, we resolve ambiguity in those statutes in favor of the accused.

For those of you interested in digging into the full-length opinion, here you go:

–-Andrew, @LawSelfDefense

Andrew F. Branca is an MA lawyer and the author of the seminal book “The Law of Self Defense, 2nd Edition,” available at the Law of Self Defense blog and Amazon.com (paperback and Kindle). He holds many state-specific Law of Self Defense Seminars around the country, and produces a series of Law of Self Defense Videocasts and Podcasts available on iTunes, Stitcher, and RSS).

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