Speaking of Straw Purchases...

[JohnKSa]

A straw purchase definitely took place.

That said, given that the gun was eventually transferred to the final recipient via an FFL and the final recipient has now filled out a 4473, passed the NICS, etc., it seems somewhat unlikely that the authorities would be concerned about this particular transaction at this point.

 

[Frank Ettin]

...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....

Again, it's a question of intent, which must be inferred from the totality of the circumstances.

...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...

I'm not sure it's as much a problem with the ATF guidance or the statute as it is with the nature of discussing these matters with limited facts or by using hypotheticals.

Hypotheticals can be infinitely tweaked to nudge them toward one conclusion or another. Sketchy descriptions of events invite missing pieces to be assumed -- leading one down one path or another.

 

[Doc Intrepid]

Following MLeake's drift...

I would also like to thank fiddletown and the other lawyers who have responded in this thread, for making the distinctions in the law more clear to the laymen among us. I am not a lawyer, and while laws may appear clear on their face, applying them to individual circumstances can occasionally be challenging.

With respect to the BATFE's prosecution of firearms laws regarding "straw purchases", as a layman my general understanding is that US law applies equally to all US citizens, and that no one is above the law even up to the highest offices in the land. Moreover, it is my understanding that "good intentions" do not justify breaking the law, and that under US law the ends do not justify the means. It is disturbing, then, to read congressional testimony that appears to describe BATFE itself - who should understand definitions to include "straw purchasers" and the requirements of Form 4473 - as condoning straw purchases on a broad scale apparently in contravention of US firearms laws:

"The congressional hearings held this week by the House Committee on Oversight and Government Reform revealed that the gun smuggling investigation known as “Fast and Furious” that was implemented out of the Phoenix Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE) office was conducted in a reckless manner that led to the illegal sale of thousands of firearms. Many of those firearms ended up in the hands of Mexican drug cartels and other criminals, and may have contributed to the death of Border Patrol agent Brian Terry.

Some of the most important findings of the hearing and the investigative report compiled by the Committee staff include:

BATFE knowingly allowed as many as 2,500 firearms to be sold illegally to known or suspected straw purchasers. One of those purchasers accounted for over 700 illegal guns. (emphasis added)

BATFE ordered its agents working the program not to arrest illegal gun buyers or to interdict thousands of guns that were allowed to “walk” into criminal hands.

Senior BATFE officials in Washington were regularly briefed on the operation and approved of the tactics employed.

BATFE agents who opposed the operation and who raised objections were told to “get with the program” and threatened with job retaliation if they continued their opposition.

A number of BATFE agents who were assigned to “Fast and Furious” testified about the operation."

The full article is here:
http://www.nraila.org/Legislation/Federal/Read.aspx?id=6927

I must admit that until straw purchases were defined and clarified in this thread, my understanding of US law that covers them was cloudy at best. It would appear either that senior BATFE officials were as misinformed as I was about laws covering straw purchases, or that senior BATFE officials did not feel compelled to abide by US laws.

(Alternately, of course, it could be the case that US law does not always apply in all cases, particularly in cases where BATFE wishes to allow some laws to be set aside.)

[Edit - no intent to hijack the thread, so Mods, if this 'drift' is excessive, feel free to delete my post.]

 

[MLeake]

Eghad, in the example cited, the only reason NY guy couldn't make the purchase is because of Federal regulation of interstate handgun sales... which, while I will obey the law, I still feel are BS and should be found unconstitutional.

That's one of the things I meant about future potential for SAF to attack various aspects of GCA. If the right to firearms is not supposed to be infringed, then how is it considered ok to say otherwise-eligible persons can only buy in their home state? (I believe there's a suit about that right now, because citizens in DC can't actually buy anywhere; there was one (1) FFL in DC, according to the article I read, and he was using his monopoly to charge outrageous fees.)

 

[Frank Ettin]

...in the example cited, the only reason NY guy couldn't make the purchase is because of Federal regulation of interstate handgun sales... which, while I will obey the law, I still feel are BS and should be found unconstitutional....

The thing is that there was probably a way for the NY fellow to buy the gun directly and legally. I've certainly bought handguns in States other than my State of residence. And the BATF Q&As even tell you how to go about it.

One has the handgun shipped to a cooperating FFL in his home State. With NY there may be a few more hoops to jump through, but I suspect it's doable. If the fellow's NC relative could ship the handgun to an NY FFL for transfer to the NY relative, I suspect that the NY fellow could have paid the NC dealer and made arrangements with the NC dealer to hold the gun and then ship the gun to the NY FFL upon receipt of the appropriate paperwork. That's how I've always been able to work things.

But the fact that there is a way to do something legally doesn't really make it less illegal to do it in an illegal manner.

And whether or not these provisions of federal law are possibly unconstitutional doesn't really mean anything until a court has actually tossed them out.

 

[maestro pistolero]

The BATF OPINION is not the law. Looking at the law itself, there is much more room for doubt as to whether this is a straw purchase.

 

[JohnKSa]

Lying on the 4473 in the particular way that the purchaser did in this example is defined as a straw purchase. This isn't a matter of anyone's opinion, not even the BATF's--it's clearly a straw purchase.

 

[Frank Ettin]

The BATF OPINION is not the law. Looking at the law itself, there is much more room for doubt as to whether this is a straw purchase.

Technically, it's not even an opinion. The publication quoted in post 17 and 18 is guidance for FFLs.

But it does tell us how BATF interprets and will enforce the statute.

Even if a judge ultimately disagrees with BATF in a situation like the one raised in this thread, some poor slob will have been arrested by federal officers, subjected to extensive interrogation and investigation, had to post bail, probably indicted and wind up spending $10K, $20K, $50K or more to try to beat the rap.

Doesn't sound like a very good plan to me.

 

[Frank Ettin]

Lying on the 4473 in the particular way that the purchaser did in this example is defined as a straw purchase. This isn't a matter of anyone's opinion, not even the BATF's--it's clearly a straw purchase.

I agree. It's always barely possible a judge could be persuaded to disagree. But getting there would be an expensive trip through a meat grinder.

I think that's a really lousy idea, especially when, as long as one is not a prohibited person, there is probably a completely legal way (at least under federal law) for him to get the gun he wants.

If one understands the law, one can usually find a way to (1) accomplish his reasonable and lawful purpose; and (2) minimize the chances for legal complications.

 

[Aguila Blanca]

If one understands the law, one can usually find a way to (1) accomplish his reasonable and lawful purpose; and (2) minimize the chances for legal complications.

As you have stated multiple times in this discussion, what counts is the intent.

If one sets out with the intent of following the law, one is likely not to encounter legal problems.

If one sets out with the intent to circumvent (rather than comply with) the law, one significantly increases one's probability of encountering legal problems.

 

[Eghad]

I feel that there are a lot of BS laws but as a citizen I dont get to pick and choose which laws I will follow. As a citizen there are other venues to get laws changed.

As a responsible gun owner I don't get to pick and choose which laws I will follow. It is the gun owners who pick and choose laws like that and get caught doing it who give responsible gun owners a bad name. I do support efforts various ways to get those laws changed.

 

[MLeake]

Like I said before, I think the law is BS, but I follow it.

Meanwhile, I hope SAF can do something to remedy the problem, and I think the situation in DC may be the door to future change.

With regard to the OP, he's an anonymous guy relating a story told him by an unnamed source. We don't know how credible he is; we also have had no answer with regard to whether NY paid NC. We can assume he did, in which case we have a straw purchase. OTOH, it could also be the case that NC cousin bought NY cousin a gun he wanted, without expectation of reimbursement, in which case it should have qualified as a gift, and NC could have legitimately answered yes to 11a.

Do we all think that was the scenario? Odds are, no, but there is a way in which the transaction could have been legit (IE a solicited but no less legitimate gift from NC). The fact of the later NY 4473 means this situation probably would not draw attention.

With regard to the scenario, I agree with those who've recommended having the gun sent to a NY FFL from the NC dealer in the first place. Please note that's exactly what I said I did, when buying a father's day gift for my lady's father. Ordered from J&G, had sent directly to the MO FFL in her dad's name.

I'm not suggesting people skirt laws. I am simply suggesting that there is a way in which the OP's scenario could actually have been lawful, even if we suspect it was probably otherwise.

 

[Powderman]

well, im not worried of the legal ramifications due to it being on the internet.

Think again.

You have confessed to falsifying a Federal record (the 4473), and of completing a "straw purchase" of a firearm in violation of Title 18, US Code.

You have noted your intent to circumvent the law in that case.

You have confessed to a Federal level felony offense.

Whether the law is stupid or not is not the issue. Whether the law makes sense is not the issue. Whether you agree with the law or not is not the issue. The fact is that Title 18, US Code, is codified as a part of Federal law.

Were I you, I would read fully and understand both Escobedo v. Illinois, 378 U.S. 478 (1964), and Miranda v. Arizona, 384 U.S. 436 (1966).

You also might want to take a detailed look at Berghuis v. Thompkins, 560 U.S. (2010).

You, sir, have willfully and with intent broken the law. Period.

 

[Uncle Buck]

I am not a lawyer, nor do I play one either on the internet or in real life. I do appreciate the lawyers opinions and views. (Heck, my own lawyer has even kept me from making a few mistakes now and then. )

But I fall in to the camp of "It was a straw purchase."

I was with my wife and she told me to pick out a gun for my birthday. I picked out two and told her to choose the one she liked best. It is my understanding it was not a straw purchase, it was a gift.

I had been looking for a 9mm to carry as a concealed gun. I could not find anything I liked. My buddy showed up one day and handed me a 9mm that he had seen and bought it for me, thinking I would like it. (If I had not, he would have kept it.) There was no exchanging of money. It was a gift, not a straw purchase. (We have traded guns in the past, helped each other out with one thing or another. He is actually more like a brother.)

My mothers friend is a convicted felon and can not legally buy a firearm. He has been trying for years to get me to buy him a handgun. He is even willing to pay me "Double your money." I refuse because it would be a straw purchase.

I was visiting my father in NH. We went to Welches Gun Shop. I saw several pistols and a rifle I wanted. Dad said he would buy one of them for me and he would ship it to me. He paid for the gun and I had to call back to Missouri to get the FFL to send the documents so we could get it shipped. That was not a straw purchase. It was a gift. Now I do believe that if I had asked Dad to buy me the gun BECAUSE I could not legally purchase it, both of us would have broken the law.

If I ask you to buy me a gun because I can not get it legally, and you buy it, you have gotten yourself in to a straw purchase arrangement. It does no good to say the intent was so that you could hold it until I could get the proper clearance to have the gun legally.

Like other have said, there is a right way and a wrong way to do something. It may be a little harder to do things the lawful way, but it is certainly cheaper than having to hire a lawyer to defend you after you get caught.

 

[GoOfY-FoOt]

Powderman wrote: YOU, YOU, YOU, YOU, YOU, YOU

Actually, if you read the OP, he states that a friend of his is the one who did all of those things. So, how is it that he is the guilty one?

Relax, and might I suggest ingesting a low-temperature pharmacutical...?

 

[Eghad]

if you have knowledge of a felony that is reconizable by a U.S. Court of Law you can be fined and/or imprisoned for failing to report it

That gives the ATF some leverage over the individual that knew about the crime.

So if some enterprising ATF agent were to get wind of this do you think NC Guy's friend would sing like a canary?

Title 18 U.S.C. Chap1 &4

Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both

.

You do not want to be on the wrong end of the legal meatgrinder that is the federal government. It can cost you time and money you dont have.

The moral of the story is do things the right way and do not tkae an illegal shortcut when it comes to firearms.

I dont think anything will come of this internet post. Now you can see what it could cost folks for not doing the right thing and taking shortcuts.

 

[Powderman]

Actually, if you read the OP, he states that a friend of his is the one who did all of those things. So, how is it that he is the guilty one?

Eghad beat me to it. However, this might also prove noteworthy:

Whoever, knowing that an offense against the United States has been committed, receives, relieves, comforts or assists the offender in order to hinder or prevent his apprehension, trial or punishment, is an accessory after the fact.
Except as otherwise expressly provided by any Act of Congress, an accessory after the fact shall be imprisoned not more than one-half the maximum term of imprisonment or (notwithstanding section 3571) fined not more than one-half the maximum fine prescribed for the punishment of the principal, or both; or if the principal is punishable by life imprisonment or death, the accessory shall be imprisoned not more than 15 years.

-Title 18 US Code, part 1, Chap. 1, paragraph 3

My point is this...until the law is changed, obey the law.
Don't try to think around it, evade it, or tapdance around it. The bottom line is this: Both people broke the law.

 

[GoOfY-FoOt]

Yeah, that's why he is on here, trying to garner everyone's opinion. He didn't believe it was out of line. So the "having knowledge", wouldn't necessarily apply, would it? Maybe he should call the authorities, now though, since it seems to be the consensus that it was a straw purchase, he was referring to, hypothetically....geez

 

[Aguila Blanca]

Yeah, that's why he is on here, trying to garner everyone's opinion.

I don't think he was looking to get everyone's opinion. I think he was looking to have people tell him that his opinion was correct. When that didn't transpire, he went silent. Today is June 19 and it's 11:05 a.m. where I am. The OP was last logged onto this site at 10:00 p.m. last night. But he last posted in this discussion on June 11, over a week and two screens full of discussion ago. Significantly, he has NOT responded to multiple requests to divulge who actually provided the money to buy the firearm.

IMHO he knew the transaction was tainted but hoped to be convinced otherwise.

 

[GoOfY-FoOt]

He most likely was using the "friend" scenario, to keep from incriminating himself, in the story. I can read between the lines, too. I was just contributing to the frenzy that was manifesting amongst the hair-splitters...