Speaking of Straw Purchases...

fiddletown,

You have been charitable and patient in explaining the law here. Thank you. And I firmly second your remark about local law enforcement officers not being experts on federal gun laws. Heck, many of them are ignorant of state laws, as evidenced over the years by legal open carriers being proned out and arrested (Philadelphia, and Fairfax and Norfolk, Virginia leap to mind).

The original question isn't that difficult, folks. This is clearly a straw purchase. Nothing in the law absolves the NC relative of lying on the 4473 when he affirmed he is the "actual purchaser," a term of art, if you will, of the firearm. Unless he bought it with his own money (without reimbursement from the NY relative) and gave it gratis to the NY relative, then he lied on the 4473.

Case closed.

An unlikely case for prosecution, perhaps, but a violation of federal law, nonetheless.
 
markj said:
My cousins are cops, I ran it by them and if the buyer while on the stand said he intended to gift the gun, no charges could be brought. It is all in the words used. If he said Ibought it for him cause he couldnt then he is in trouble. So did anyone ask the real person or do we judge folks on heresay alone?
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You ARE joking, right?

Hearsay? There is no hearsay involved. We have the original poster's statement as to exactly what happened.

As for your cousins, the cops: What kind of cops would advocate ANYONE committing perjury? Testifying in a court is sworn testimony. Making a false statement under oath is called "perjury," and that is a criminal offense all by itself.

Your cousins should resign and turn in their badges. If they would advise you to commit perjury, I have to assume that THEY would commit perjury, and there is no place in this country for cops who advocate and/or practice perjury.
 
You gave your friend the money to buy the gun for you
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Assuming facts not in evidence. You have no way of knowing from this thread whose money was used.

I say NOT a straw purchase. There was no intent to deceive the government about who would ultimately own the pistol.

There was intent, followed by action as evidence of that intent, to use proper channels for the transfer of the pistol to it's eventual owner. The original purchaser did not transfer the gun to the present owner, an FFL did.

It was bought with the intent to transfer properly through an FFL. Not a straw purchase in either the letter or the spirit of the law.
 
Are you the actual purchaser?

Yes.

This statement was made when the individual filling out the form was not the actual purchaser.

That is the crime.

If they had answered honestly the purchase wouldn't have been allowed even if they explained the ultimate intent to transfer through an FFL in NY. The dealer would have said they would be happy to ship it to a dealer in NY.


Let's look at the elements:

1. That the accused made a certain statement in connection with the purchase of a firearm.

2. That the statement was false in certain particulars.

3. That the accused then knew the statement to be so false

4. The statement was made with intent to deceive

If you prove the defendant knowingly lied you have essentially proven intent to deceive. People lie to deceive others and had the accused answered honestly on the 4473 the transfer would have been halted by the dealer. The intent of lying on the form is to allow the gun to be transferred.

Proving the present intent of the person who filled out the 4473 can be a challenge . But I think you could do it with circumstantial evidence in this case.

The dealer might remember seeing both parties in his shop.

I would also subpoena bank records.

Now if I were a prosecutor I wouldn't prosecute this case for several reasons none of which are an inability to carry the burden on the elements.
 
He WAS the actual purchaser. Because he intended to transfer it through an FFL to another purchaser means he never intended to deceive the government about who owned the pistol, legally and in actuality. Last time I checked, you can't transfer a gun you don't own. He owned it, then transferred it through legal channels. It's not a straw purchase when you announce the new owner to the government each time it changes hands and a NICS check is completed.
 
maestro pistolero said:
He WAS the actual purchaser. Because he intended to transfer it through an FFL to another purchaser means he never intended to deceive the government about who owned the pistol, legally and in actuality....
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Nope, he was purchasing the gun on behalf of the relative in NY. In legal terms, he was buying the gun as the agent of the NY relative. As the OP stated in post 1 (emphasis added):
l98ster said:
...A friend ...was visiting his relative when he walked into a gunstore in NC, and found a pistol that he wanted. The store told him that since he was not a NC resident, they could not sell him the pistol (he has a NY pistol permit).

A day later, he brought his relative into the gunstore to buy that pistol. His relative kept posession of the pistol in NC until he got back home and filed the appropriate paperwork to legally take possesion of it in NY....
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As described, the NC relative was buying the gun on behalf of the NY relative. The NC relatives purpose was facilitate the NY relative acquiring the gun. Everything the NC relative did was to accommodate the NY relative and further the NY relative's purpose of acquiring the gun. Again, see the ATF publication quoted in posts 17 and 18.

Were I prosecuting this case, I don't think I'd have much trouble getting a conviction.
 
The problem I have with this, in general, is that

a) it is legal to buy a firearm as a gift for somebody who may legally own it, but

b) there is no block on the 4473's I've ever filled out for "purchasing as gift."

So how does one fill out the 4473, when the intent is to buy the gun as a gift? Answer no to question 11, and then put in an explanatory block somewhere on the form?

Or is there some other means of executing the lawful transaction, without causing problems with the 4473?
 
Let me try to make the legal distinction between doing something on a someone's behalf and making a gift more clear.

[1] Say my wife and I are sitting around at home one day. I say to her, "I'd sure like a Coke. Would you mind running down to the store and picking me up a six-pack."

Then she says, "Sure, I don't mind at all."

She then goes out to the store and comes back a bit later with a six-pack of Coca-Cola.

[2] On another day, I'm sitting at home. My wife went out a bit earlier to pick up the dry cleaning.

She gets back and plops a six-pack of Coca-Cola on the table, saying, "I brought you a present."

There is a legal distinction between those two situations.

In the first, she is buying the Coke at my direction or request. She is, in legal terms, acting as my agent to buy the Coke on my behalf. When she bought the Coke she did so to fulfill my purpose and to further my explicit interest. I wanted the Coke, said so, and she went and got it for me.

In the second, she has acted on her own initiative to buy me a present. When she bought the Coke, she did so on her behalf to fulfill her purpose. She wanted to do something nice for me, unbidden by me, and purely as an act of generosity on her part.

Of course none of this matters, really, when talking about buying a soft drink.

But it matters a great deal if we're talking about guns.
 
Even so, fiddletown, I'd still like to know what the procedure is, with regard to the 4473, to purchase a gift firearm?

What I've ended up doing, since I don't know how to fill out the form in such an instance, has been to order a gun, and have it sent directly to the appropriate FFL for the recipient. I haven't touched the 4473 in a gift purchase, as the only FFL transaction has occurred where the recipient has taken possession.

But say I were in a shop, and wanted to buy my lady a handgun. How should I fill out the form? It's not really clear on the form itself.
 
b) there is no block on the 4473's I've ever filled out for "purchasing as gift."
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But say I were in a shop, and wanted to buy my lady a handgun. How should I fill out the form?
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on the form in the box for question 11a at the bottom of the question in ()
it says "see important notice 1 for actual buyer definitions and examples".
If you are buying it as a gift you are the actual buyer. so the answer to question 11a is "yes"
 
MLeake said:
Even so, fiddletown, I'd still like to know what the procedure is, with regard to the 4473, to purchase a gift firearm?...
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That is not, however, the topic of this thread. However, that might be done, the OP described, as I've quoted, a straw purchase.
 
If you are buying the gun as a gift you are the purchaser.....

you can mark yourself as the purchaser on the 4473.

That is what the ATF says.

why is that so hard to understand?


If you are buying the gun for someone else who is inelegible to purchase a firearm that is a straw purchase.

If your brother John who is out of town calls you and says hey I notice Joe's Gun shop is running a special on the SA 1911 GI Spec model go buy me one and I will pay you back when I get home. That is a straw purchase because you are not the actual purchaser and it is still a straw purchase.
 
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fiddletown, I agree with you that the OP's case would be a straw purchase, as the intent seems to have been to have the NY guy pay for the gun all along.

That makes me wonder why the NY guy didn't simply arrange a down payment toward an FFL interstate transfer with the NC dealer in the first place. Seems the OP's friends made the process overly complicated, and probably more expensive, in addition to possibly running afoul of the Feds.

Unless the OP isn't clear on the situation, and the NC guy did NOT get reimbursed by the NY guy; in which case he bought it as a gift, and had it legally transferred via a NY FFL, once the NY paperwork was completed. Which seems like it would have been legal, no?

Correct me if I'm wrong, but the issue really comes down to whether or not NY guy ever paid for the gun.
 
MLeake said:
Correct me if I'm wrong, but the issue really comes down to whether or not NY guy ever paid for the gun.
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Not fiddletown, but if I may offer my view on your question, I still think that intent counts. Someone has posted a link to the BATFE FAQ, and that specifically addresses exactly this situation: A prospective buyer who is not a "prohibited person" by virtue of being a convicted felon, but who cannot purchase a handgun because he is not in his state of residence. That's what we have been given as the situation.

Now you are suggesting that the NC relative decides to buy the handgun and give it to the NY relative as a gift. IMHO, that would be legal -- if that's what went down. That would entail the NC relative saying, "Gosh, Bob, it's a bummer you can't buy that gun because of a technicality. Tell you what, I got a big bonus check last week, so I'll just buy it for you and it'll be my gift to you."

But that's not what happened, is it? Let's look at how the original poster described the unfolding transaction:

A day later, he brought his relative into the gunstore to buy that pistol. His relative kept posession of the pistol in NC until he got back home and filed the appropriate paperwork to legally take possesion of it in NY. When his NY pistol permit was amended and the pistol from NC was put on it, he had his relative send him the pistol through the proper FFL channels.
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I have asked two or three times in the course of this thread for the OP to tell us who actually paid for the pistol, and he has not provided that information. In the absence of a definitive answer, does the above description of what went down sound to you -- in all honesty -- like the NC relative bought the pistol on his own initiative, with his own money, as a gift?

Doesn't sound that way to me.
 
Correct me if I'm wrong, but the issue really comes down to whether or not NY guy ever paid for the gun.
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not really it comes down to intent.

Hypothectical
NY guy tells NC relative about gun. NC relative says I been looking at getting one of those and goes down to shop and buys it. NY guy goes back home. NC relative shoots gun in backyard and manages to kill his lawnmower. now he's got to buy a new lawnmower but doesn't have the money because he bought a gun. Calls the NY relative and offers to sell it to him. NY relative pays for it and has it transfered legaly through his FFL.
this is not a straw purchase because NC guy bought the gun with the intent to keep it.
 
Aguila Blanca, since when do gifts have to be solely at the gift-giver's initiative?

I've given several gifts in the past, that had been wanted and asked for by the recipients.

In the OP's case, the money is where the issue would lie, as the intent was clearly for NY guy to end up with the gun. The OP having not stated how the money worked, and the OP's account being hearsay, I think the legal basis for saying "THIS IS A STRAW PURCHASE" would be shaky. Then again, assuming the OP has been accurate so far, and assuming NY guy gave NC guy the money for the gun, then it looks like a straw purchase.

I'm just not too keen on ATF regulations, which seem to be intentionally written so as to be at least a little bit confusing. No offense to the lawyers here (fiddletown, Aguila Blanca, et al) but I've always felt there should be a requirement for laws to be written in very plain, clear, and easily understood English. Granted, that would be bad for legal business, but it would be so much easier for all the rest of us...

But you can see the result in the mass of threads where TFL members think it's a straw purchase for a parent to buy a handgun for their 18yo son in Florida - who can't buy (from an FFL) but can own a handgun at that age in Florida - even though it's legal for them to buy the gun as a gift.

So, in this case, intent was a given - NY guy would have the gun. I still think you'd need to establish that NY guy paid for the gun; otherwise, is there a rule that says a gift can't have been requested?

Edit: Also, does the fact that the NY guy didn't take theoretical possession until the NY 4473 was completed have any bearing? One would think that would, at minimum, be a mitigating factor in that it shows intent to comply with the requirement.
 
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Sorry for the drift, but it would be interesting to see how SAF's recent victories could eventually be applied to getting rid of the GCA of 1968, downsizing the ATF drastically, and making this kind of thread an anachronism.
 
There was nothing confusing in those excerpts from the ATF Regulations guide. They were crystal clear.

NC Guy came in but was a prohibited purchaser. The next day NC Guy and NC Relative comes in and buys the pistol then has it shipped to NY Guy via FFL.

If I were a prosecutor I would subpoena NC Guy and NC Relatives bank records to see if there were any withdrawals and deposits in those accounts for about the same purchase price as the pistol. Then let those two decide what thier testimony is going to be on the stand.

Maybe NC Relative did buy the gun as a gift. If that is case then there is no straw man purchase.

However, in my long years of dealing with human nature when people have to ask if something they or someon else did is wrong then something not kosher was done usually.

With out all the facts we will never know. The excerpts from the ATF Regulations guide are clear as to what constitutes a straw purchase and who the purchaser is when the firearm as being a gift.

We know that a gift is something given to another person without compensation.

If I took compensation from another person to buy them a firearm then I am not the real purchaser and it is a straw purchase.

If the ATF was indeed reduced under your scenario

I would still support an instant background check for firearm buyers to weed out people who do not need to buy firearms and laws against straw purchasers who are buying for a person prohibited from buying a firearm.
 
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