Virginia Woman Charged with Dealing w/o a License

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sigcurious

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Has anyone seen anything more substantive about this? Hopefully this incident will do some good by bringing to light some numbers about similar situations and laws, where enforcement may or may not be consistent.

I do find it unfortunate that the title and formatting of the article implies that buying that number is somehow illegal(instead of woman resells or sells 31 handguns in 2 weeks they focus on the buying).
 
As far as the media formatting the verbeage in the article...sounds typical.

As far as She goes....ya' can't fix 'stupid'.
 
If she's convicted, I think this may be a case of the defendant "talking her way into a prison sentence". There's nothing explicitly illegal about buying a large number of guns in a short time, now that "one gun a month" is no longer the law here in Virginia. And I don't even think there's anything inherently illegal about privately selling multiple guns in a short time - think of a collector culling out his collection, or a widow selling her dead husband's guns.

It sounds like her problem is going to come from the fact that she admitted to buying the guns with the intent to turn them around for a profit.
 
ScottRiqui said:
If she's convicted, I think this may be a case of the defendant "talking her way into a prison sentence". There's nothing explicitly illegal about buying a large number of guns in a short time, now that "one gun a month" is no longer the law here in Virginia. And I don't even think there's anything inherently illegal about privately selling multiple guns in a short time - think of a collector culling out his collection, or a widow selling her dead husband's guns.

It sounds like her problem is going to come from the fact that she admitted to buying the guns with the intent to turn them around for a profit.
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Ding! Ding! Ding! We have a winner.

For those of you who may never have worked in the criminal defense field, let assure you that you would be astounded at the number of people who talk themselves right into jail time.
 
Even if she admitted nothing, buying 31 of them in two weeks in person (at gun shows) is unusual even for collectors (unusual, not impossible or criminal). If she really resold them all within 16 days, it would be difficult to convince a jury she didn't intend to resell when she bought them.

Obligatory: "Don't talk to the police" (in serious criminal matters)
 
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My Dad knew a coin/stamp collector who got in trouble for the very same thing.... He was a "collector" who supported his family by buying and selling coins and stamps. There were a lot of issues with the IRS, and he chose to fight them. It did not turn out well for him.
 
Saying that selling guns at a profit makes you a dealer is not the case. If you are doing it as a livelihood that's a different thing.
 
btmj said:
My Dad knew a coin/stamp collector who got in trouble for the very same thing.... He was a "collector" who supported his family by buying and selling coins and stamps. There were a lot of issues with the IRS, and he chose to fight them. It did not turn out well for him.
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In any case, one doesn't need a federal license to be a dealer in coins/stamps. One does need a federal license to be a dealer in guns. A collector of most types of "collectibles" who deals in such could have tax problems. Dealing in guns without the proper license will get one into other serious legal trouble.

jason_iowa said:
Saying that selling guns at a profit makes you a dealer is not the case. If you are doing it as a livelihood that's a different thing.
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Really? What is the difference? Where is the line drawn? Do you have any clue what you are talking about?

"Engaged in the business" is defined at 18 USC 921(a)(21)(C), emphasis added:
(21) The term “engaged in the business” means—

(A)...

(B) ...

(C) as applied to a dealer in firearms, as defined in section 921 (a)(11)(A), a person who devotes time, attention, and labor to dealing in firearms as a regular course of trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms, but such term shall not include a person who makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of his personal collection of firearms;...
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The operative concepts are (1) devoting time, attention and labor; (2) doing so regularly as a trade or business; (3) the repetitive purchase and resale of guns; and (4) intending to make money.

"Livelihood" simply means:
1: means of support or subsistence
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Nothing in the statutory definition of "engaged in the business" requires that it be one's only business or means of support. It could be a side business, a secondary business or one of several ways you have of bringing money into the household. What matters is that you're doing it regularly to make money. You don't even necessarily need to make a profit to be "engaged in business." People go into business all the time and wind up not making money. It's not that they're not engaged in business; it's just that they're not very good at it.

But an occasional sale is not being "engaged in the business." Where is the the line between an occasional sale and the repetitive purchase and resale? That's not clear from the statutes. Let's see what some courts have said:

  • The Third Circuit, in upholding a conviction of dealing in firearms without a license noted (U.S. v. Tyson, 653 F.3d 192 (3rd Cir., 2011), at 200-201, emphasis added):
    ...By the statute's terms, then, a defendant engages in the business of dealing in firearms when his principal motivation is economic (i.e., “obtaining livelihood” and “profit”) and he pursues this objective through the repetitive purchase and resale of firearms. Palmieri, 21 F.3d at 1268 (stating that “economic interests” are the “principal purpose,” and “repetitiveness” is “the modus operandi ”). Although the quantity and frequency of sales are obviously a central concern, so also are (1) the location of the sales, (2) the conditions under which the sales occurred, (3) the defendant's behavior before, during, and after the sales, (4) the price charged for the weapons and the characteristics of the firearms sold, and (5) the intent of the seller at the time of the sales. Id. (explaining that “the finder of fact must examine the intent of the actor and all circumstances surrounding the acts alleged to constitute engaging in business”). As is often the case in such analyses, the importance of any one of these considerations is subject to the idiosyncratic nature of the fact pattern presented...
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  • And the Fifth Circuit noted (United States v. Brenner (5th. Cir., 2012, No. 11-50432, slip opinion), at 5-6, emphasis added):
    ...the jury must examine all circumstances surrounding the transaction, without the aid of a "bright-line rule". United States v. Palmieri, 21 F.3d 1265, 1269 (3d Cir.), vacated on other grounds, 513 U.S. 957 (1994). Relevant circumstances include: "the quantity and frequency of sales"; the "location of the sales"; "conditions under which the sales occurred"; "defendant's behavior before, during, and after the sales"; "the price charged"; "the characteristics of the firearms sold"; and, "the intent of the seller at the time of the sales". Tyson, 653 F.3d at 201.
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  • The Sixth Circuit noted (United States v. Gray (6th Cir., 2012, No. 11-1305, slip opinion), at 8):
    ...However, "a defendant need not deal in firearms as his primary business for conviction." United States v. Manthey, 92 F. App'x 291, 297 (6th Cir. 2004)....
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  • And in upholding Gray's conviction the Sixth Circuit also noted (Gray, at 8-9):
    ...We have previously held that evidence was sufficient to support a conviction under § 922(a)(1)(A) where it showed (1) that the defendant frequented flea markets and gun shows where he displayed and sold guns; (2) that the defendant offered to sell guns to confidential informants on multiple occasions and actually sold them three different guns on two different occasions; (3) and...that the defendant bought and sold guns for profit. See United States v. Orum, 106 F. App'x 972, 974 (6th Cir. 2004)...
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  • In affirming a conviction of dealing in firearms without a license, the Ninth Circuit stated (U.S. v. Breier, 813 F.2d 212 (C.A.9 (Cal.), 1987), at 213-214, emphasis added):
    ...Courts have fashioned their own definitions of the term. For example, we have previously stated "that where transactions of sale, purchase or exchange of firearms are regularly entered into in expectation of profit, the conduct amounts to engaging in business." United States v. Van Buren, 593 F.2d 125, 126 (9th Cir.1979) (per curiam). In United States v. Wilmoth, 636 F.2d 123 (5th Cir. Unit A 1981), the Fifth Circuit stated that to prove the status of the accused as one engaged in the business of dealing in firearms, "the Government must show a greater degree of activity than the occasional sale of a hobbyist." Id. at 125. "It is enough to prove that the accused has guns on hand or is ready and able to procure them for the purpose of selling them from time to time to such persons as might be accepted as customers." Id.; accord United States v. Carter, 801 F.2d 78, 82 (2d Cir.), cert. denied, --- U.S. ----, 107 S.Ct. 657, 93 L.Ed.2d 712 (1986); United States v. Burgos, 720 F.2d 1520, 1527 n. 8 (11th Cir.1983)....
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Also, it's worthwhile to note that profits are taxable as short term or long term capital gains. But if one isn't engaged in a business some deductions ordinarily allowable as business expenses would not be allowable.
 
Thanks for the good info Etten...that took a little time to put together?

I do think that a business dealing in Firearms is under a little more scruttiney than say a nail salon. Background checks, Federal forms, inspections - you are dealing with the Federal government more then if you moved a few cases of hair spray to customers.

That said, the line or number is not clear or if that is a State thing since your business must be registered with the state.

I think it comes down to common sense. We all have bought or sold a few guns here and there, but this person was buying and selling at a good pace which is not in the normal realm of gun collecting.

I am even limited in my county of 1 gun a week or the dealer has to send some additional form to the Feds that they did NOT want to do. So when I ordered two guns at once, I had to wait for the second week for them to send in the 2nd gun form so it was under the radar.

So if I have to do all that just for (2) little handguns, you would suspect that the person who thinks they can run around buying and selling 15 guns at a time should very well have thought to get all the licenses and insurance that is needed.
 
kilimanjaro said:
When you deal in firearms for profit, you are a dealer.
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jason_iowa said:
Saying that selling guns at a profit makes you a dealer is not the case. If you are doing it as a livelihood that's a different thing.
Click to expand...

Frank Ettin said:
Really? What is the difference? Where is the line drawn? Do you have any clue what you are talking about?
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Jason_Iowa is substantially correct in the distinction he draws. I would like to have made a profit every time I sold a firearm (maybe a half dozen times in my life), but I would not fit the definition of a dealer. Indeed, if one undertakes dealing in firearms "as a regular course of trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms", as Frank Ettin's citation indicates that is "a different thing".

Frank, the law you provide is an excellent review of the issue and it is a real service for you to provide that cogent summary. The acrimonious introduction is "a different thing".
 
zukiphile said:
...Jason_Iowa is substantially correct in the distinction he draws...
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Actually, he is not. His comment:
Jason_Iowa said:
Saying that selling guns at a profit makes you a dealer is not the case. If you are doing it as a livelihood that's a different thing.
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is far too imprecise to be helpful.

Indeed, the Third Circuit in Tyson (at 200), makes no distinction between "profit" and "livelihood":
...By the statute's terms, then, a defendant engages in the business of dealing in firearms when his principal motivation is economic (i.e., “obtaining livelihood” and “profit”)...
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Essentially one factor is whether the actor's principal motivation is economic, whether called "profit" or "livelihood" is of no consequence. So Jason_Iowa's contrived distinction between "profit" and "livelihood" really doesn't help us understand the underlying legal issues.

The courts which have looked at the question have identified multiple factors which would need to be considered by the trier of fact to decide whether or not a defendant was "engaged in the business."
 
Frank Ettin said:
Actually, he is not. His comment:

Jason_Iowa said:
Saying that selling guns at a profit makes you a dealer is not the case. If you are doing it as a livelihood that's a different thing.
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is far too imprecise to be helpful.
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That is incorrect. The comment help to correct the misperception to which it responds, that if one deals in firearms for a profit, one is a dealer. To that degree it is helpful.

Frank Ettin said:
The courts which have looked at the question have identified multiple factors which would need to be considered by the trier of fact to decide whether or not a defendant was "engaged in the business."
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That is correct, there is more than one factor to be assessed, not just whether one dealt for a profit. As I have noted, explaining those is helpful.

Frank Ettin said:
Really? What is the difference? Where is the line drawn? Do you have any clue what you are talking about?
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Gratuitous lack of courtesy isn't.
 
thallub said:
Found it:
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Interesting. I would jump to the conclusion that she was buying these items for the purpose of re-selling to prohibited persons just because the letter note that one was recovered from a "suspected narcotics trafficker", but that kind of result, if proven, could give the facts a different hue.
 
I think the only way she could possibly sells things sold at Chantilly (rather expensive show) for a profit that quick was that she was selling them to criminals.

By the time you pay the going price and taxes it will be a rare event where you can sell it to another legal buyer for a profit. He/she could go buy it for the same price and not your mark up, if they can legally buy it.

Not sure selling them quickly is a crime, but selling them to banned people is.
 
Post #11 is pretty darned clear. There is a lot of frivolous messing around with words in some of the other posts which vary from confusing to underwhelming. Enough.
 
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