Abramski v U.S. Supreme Court Decision (Straw Purchase case)

[Frank Ettin]

I wonder if trusts have 14th amendment rights?...

A trust would not because a trust is not an entity (person). A trustee would, as a natural or artificial (a corporation) person.

A trust is not an entity (like a corporation is). It does not do business as an entity, in its name. It doesn't sue in its name. It isn't sued in its name. It is a special structure for holding title to property.

In a trust, there is one of more trustees who hold title to certain property. Trustees can be natural persons or artificial persons (corporations). But the property is owned by the trustee(s). If the trustee is a natural person, he personally owns the property which is held in trust.

But in a trust, while the property is owned by the trustee he is not free to do with it as he wishes. He is not free to use it for his own purposes. He owns the property as a fiduciary to use for the benefit of one or more third parties called the beneficiaries.

The rights and obligations of the trustee with regard to the property he owns in trust (sometimes called the "trust res") are set out in writing in a document called a trust, or trust document, or trust indenture. That document describes what the trustee must do, may do and may not do with the property he owns in trust. That document also sets out the rights and obligations of the beneficiary.

The trust is started, assuming a trustee agrees to act, by a person, called the trustor or settlor, transferring property to the trustee. The trustee accepts the property subject to the trust document and agrees to be bound by the trust document.

So there is no entity called a trust. Business related to the property held in trust is conducted by the trustee as trustee, as a person (natural or artificial, as the case may be).

The foregoing is the basic structure of any trust arrangement. Trusts are used in many contexts for many purposes and to hold title to all kinds of property.

 

[dogtown tom]

smkummer So I buy a machinegun, short barrel rifle/shotgun or suppressor. The form 5320.04 does not ask this question. Why does a 4473 ask this question?

Because a form 4473 is a "Firearms Transaction Record" and both buyer and dealer complete it before you pick up your NFA firearm.

The 5320.04 "Application for Tax Paid Transfer and Registration of Firearm" is merely the tax document that must be approved before transferring the NFA firearm to the transferee.

Both title 1 and title 2 purchasers have passed a background check. Wasn't the meaning and intent of the anti straw purchase to prevent someone PROHIBITED from owning a firearm getting one?

The background check is not run until AFTER the buyer/transferee has completed the 4473.

From what I gather from this, us gun owners have to be very careful how we articulate, that is all that happened with the ruling. Sort of a speak easy situation. All my high grade collectable guns are purchased because I believe someone else will like them and pay me more than what I paid, THAT IS MAINLY WHY I BOUGHT THEM. That may be the same day at a gun show or 40 years down the road. Lawyers, accountants, realtors and now gun enthusiasts have to articulate correctly or else!

Buying firearms and eventually selling them has nothing to do with the Abramski ruling or straw purchases.

Kind of makes me feel like I am in Nazi Germany.

Really? Then you have no clue what life was like in Nazi Germany. Let me know when the US starts up those extermination camps.

Who here has not bought a gun because it was a great deal and planned on flipping it?

Do that occasionally and it's not a problem.
Do that often enough and it's possible that you could be considered as "engaging in the business" and would require an FFL.

If you want to make a profit off of buying and selling guns, get an FFL before you become the next Abramski.

 

[deadin]

I think a point being missed here by those that contend they "know" that their buddy (the one they are buying the gun for) is a righteous, upstanding, not prohibited person and there should be no reason they shouldn't be able to legally buy the gun for him, is, while they may "know" this, the FFL and NICS system doesn't and won't unless the buddy fills out the paperwork and the check is run.

 

[Elkins45]

What if my brother, who I know to be the legal owner of a firearm that has been sent to a shop for repair work, asks me to pick it up and pay for the work for him? I'm assuming I would have to fill out a form for that transaction. How would one go about that, or could I do so at all under the Court's decision?

This specific scenario is addressed on the instructions for the 4473 form. If you are picking up a repaired gun for someone else you are not required to answer this question.

 

[barnbwt]

Thanks for the clarification on trusts; they are so often referred to as entities I figured they were legal construct 'person' like corporations (instead the lack of liability buffer in trusts unlike corporations means there is nothing to be treated equally/unequally by the 14th, like you say, and there treatment is purely statutory --did I get that right?)

Also for a quick recap question;
Abramski's initial receiving of the handgun under false, but otherwise legal pretenses (per 4473 transferee question) was the crime, but not the subsequent transfer to the uncle, right? So had the handgun not been seized as evidence (I'm just assuming it has been), the uncle would still have and be shooting the Glock? As best I can tell from the ruling, the uncle committed no wrong doing in enlisting a third party to 'obscure' his identity and sell him a firearm (because he himself was not a prohibited person). Just trying to see if the ruling keeps all the "straw" liability for lawful-persons sales (God, it's like talking in oxy-morons around here, now) on the "straw" buyer, rather than the end-user who supplies the means and motive for the "crime."

It seems odd that the end-user instigating the whole chain of criminal events is shielded from punishment precisely by the nature of the crime committed (not signing the forms themselves). I'm sure there is a legal term for this failure of law to hit the intended target(s). One would think the straw buyer is just as guilty as the guy putting him up to it (there's no guarantee the 'gun runner' is the flunky straw, and not the king pin pulling his strings, after all)

"it does not matter whether the ultimate transferee was Al Capone or somebody else."

Wasn't Capone a non-felon, non-prohibited person who could have easily passed even our modern checks and taken lawful possession of the very gun in question, right up until his tax evasion arrest and subsequent detention until death? I know "capone" is a rhetorical feint like "hitler," but a stinkin' SCOTUS judge should know to parse her words more carefully.

I think the biggest lesson to be learned here is one of the dangers of allowing 'common sense' encroachment of existing statutes (the whole "enforce the laws already on the books" crowd). The "elaborate" system of ID verification and background checks were not part of the original GCA, but the Brady Bill, correct? It was the addition of these features later on which created the "context, structure, and purpose" being used to justify the majority opinion today that the purpose of the GCA is de facto registration (or at the very least, tracking) of FFL gun transfers.

TCB

 

[barnbwt]

This specific scenario is addressed on the instructions for the 4473 form. If you are picking up a repaired gun for someone else you are not required to answer this question.

Ah, so there is no reason they couldn't add a "are you buying this firearm on behalf of another, but not otherwise in the business of dealing in firearms?" tick-box to the form. This would clear up 99% of the 4473 questions I see asked by people, and the ATF would still have the means (by way of their illegal scanning of entire bound books) to see which people are buying guns on behalf of others excessively.

After all, the sole purpose of the FFL regs is to prevent people from dealing in firearms without a license, and not to simply restrict how people can legally acquire them (at least, that's the justification they used to call it regulation of interstate commerce, right?)

TCB

 

[dogtown tom]

barnbwt ....After all, the sole purpose of the FFL regs is to prevent people from dealing in firearms without a license, and not to simply restrict how people can legally acquire them (at least, that's the justification they used to call it regulation of interstate commerce, right?)

No.
While ATF regulations address "commerce in firearms", those regulations apply only to licensees (those who hold an FFL). Nothing in the ATF regulations "prevents" anything. They are simply the rules that an FFL agrees to follow.

Those "FFL regs" are the result of the Gun Control Act of 1968.

 

[Spats McGee]

I've seen a couple of references in this thread to the notion that the "actual buyer/straw purchaser" concept is not authorized by statute. However, let's not forget that 18 USC 922, does provide this:

c) In any case not otherwise prohibited by this chapter, a licensed importer, licensed manufacturer, or licensed dealer may sell a firearm to a person who does not appear in person at the licensee's business premises (other than another licensed importer, manufacturer, or dealer) only if--

(1) the transferee submits to the transferor a sworn statement in the following form:

“Subject to penalties provided by law, I swear that, in the case of any firearm other than a shotgun or a rifle, I am twenty-one years or more of age, or that, in the case of a shotgun or a rifle, I am eighteen years or more of age; that I am not prohibited by the provisions of chapter 44 of title 18, United States Code, from receiving a firearm in interstate or foreign commerce; and that my receipt of this firearm will not be in violation of any statute of the State and published ordinance applicable to the locality in which I reside.

Further, the true title, name, and address of the principal law enforcement officer of the locality to which the firearm will be delivered are



Signature ........ Date ........”​

and containing blank spaces for the attachment of a true copy of any permit or other information required pursuant to such statute or published ordinance;

(2) the transferor has, prior to the shipment or delivery of the firearm, forwarded by registered or certified mail (return receipt requested) a copy of the sworn statement, together with a description of the firearm, in a form prescribed by the Attorney General, to the chief law enforcement officer of the transferee's place of residence, and has received a return receipt evidencing delivery of the statement or has had the statement returned due to the refusal of the named addressee to accept such letter in accordance with United States Post Office Department regulations; and

(3) the transferor has delayed shipment or delivery for a period of at least seven days following receipt of the notification of the acceptance or refusal of delivery of the statement.

18 U.S.C.A. § 922(c) (West)

So an FFL may only sell a firearm to someone who does not appear in person on the premises if: (1) the transferee submits a sworn statement; (2) that the transferor sends to the AG and the CLEO of the transferee's place of residence; (3) by certified mail, return receipt requested and received; and (4) the transferor delays shipment for seven days after getting the green card back.

IMHO, that's makes for pretty good evidence that Congress really wanted the actual purchaser of a firearm to meet the FFL face-to-face for the sale. Straw purchases circumvent that.

 

[Arizona_Mike]

@barmbet: In general a trust is not a "person" which is what makes the NFA so unusual.

Mike

 

[Frank Ettin]

...In general a trust is not a "person" which is what makes the NFA so unusual....

Let's not get side tracked. The definition cited is not a definition unique to the NFA. It is set out in Subtitle F of the Internal Revenue Code relating to IRS procedures and administration generally. Note also subparagraph (a) of 7701:

(a) When used in this title, where not otherwise distinctly expressed or manifestly incompatible with the intent thereof—

This definition does not change the overall legal character of a trust. The 26 USC 7701 definition of "person" also includes partnerships. Partnerships are also not legal entities.

 

[Arizona_Mike]

This definition does not change the overall legal character of a trust.

No disagreement on that point.

Mike

 

[JRH6856]

I've seen a couple of references in this thread to the notion that the "actual buyer/straw purchaser" concept is not authorized by statute. However, let's not forget that 18 USC 922, does provide this:

That seems to specify how a licensee can transfer a firearm directly to a person not present. But in a so called straw purchase, the licensee is transferring the firearm to a person who is present. Seems like two distinctly different situations and I still see nowhere that one person buying a gun on behalf of another is otherwise prohibited.

 

[Spats McGee]

That's exactly what it does, JRH, but note that it's "may sell to a person who does not appear only if . . . " IOW, it excludes any other method of selling to a person who does not appear. The majority takes the position that in a straw purchase, the straw buyer is merely acting as an agent for the actual purchaser.

Abramski argued that checking the "yes" box wasn't material to the lawfulness of the sale because Alvarez is eligible to own and possess a gun, and that Question 11a wasn't a "record required to be kept" by the Act. Remember, here's what he was convicted of violating:

It shall be unlawful . . . . (6) for any person in connection with the acquisition or attempted acquisition of any firearm or ammunition from a licensed importer, licensed manufacturer, licensed dealer, or licensed collector, knowingly to make any false or fictitious oral or written statement or to furnish or exhibit any false, fictitious, or misrepresented identification, intended or likely to deceive such importer, manufacturer, dealer, or collector with respect to any fact material to the lawfulness of the sale or other disposition of such firearm or ammunition under the provisions of this chapter;

18 U.S.C.A. § 922 (West)

Except as otherwise provided in this subsection, subsection (b), (c), (f), or (p) of this section, or in section 929, whoever--

(A) knowingly makes any false statement or representation with respect to the information required by this chapter to be kept in the records of a person licensed under this chapter or in applying for any license or exemption or relief from disability under the provisions of this chapter;

18 U.S.C.A. § 924 (West)

SCOTUS says that the identity of the actual purchaser is material to the sale of a firearm.

 

[itsa pain]

Because a form 4473 is a "Firearms Transaction Record" and both buyer and dealer complete it before you pick up your NFA firearm.

The 5320.04 "Application for Tax Paid Transfer and Registration of Firearm" is merely the tax document that must be approved before transferring the NFA firearm to the transferee.






The background check is not run until AFTER the buyer/transferee has completed the 4473.




Buying firearms and eventually selling them has nothing to do with the Abramski ruling or straw purchases.



Really? Then you have no clue what life was like in Nazi Germany. Let me know when the US starts up those extermination camps.



Do that occasionally and it's not a problem.
Do that often enough and it's possible that you could be considered as "engaging in the business" and would require an FFL.

If you want to make a profit off of buying and selling guns, get an FFL before you become the next Abramski.

How is your job at the BATF going? That is what is seems like to me. What you said sounds like govt propaganda designed to make sure people do not notice the police state slowly being built around this country. Just like the frog being boiled slowly. Requiring FFL's should be unconstitutional to begin with

 

[itsa pain]

This whole idiotic straw purchasing fiasco which might have been approved by the NRA is a useless law unless they have access to the records that the law says they cannot use for reference. So the forms are being stored used for tracking and they are going against the law

 

[JRH6856]

SCOTUS says that the identity of the actual purchaser is material to the sale of a firearm.

And the proof that Alvarez was the actual purchaser is the notation on the check he gave to Abramski before Abramski made the purchase. So if Alvarez had not prepaid for the gun, so that Abramski had used his own funds in making the purchase, the intent may have existed but would have been much harder, if not impossible, to prove beyond a reasonable doubt (which I assume is still the standard).

I wonder what might have happened if the notation on the check had said "Loan for purchase of Glock"?

 

[Frank Ettin]

And the proof that Alvarez was the actual purchaser is the notation on the check he gave to Abramski before Abramski made the purchase. So if Alvarez had not prepaid for the gun, so that Abramski had used his own funds in making the purchase, the intent may have existed but would have been much harder,...

A totally different subject.

First, being hard to prove doesn't make an illegal act legal. As I've already pointed out in post 38:

...Apparently some folks don't understand the difference between getting what you want done in accordance with the law and doing something illegal in a way that minimizes the risk of getting caught and successfully prosecuted.

The former absolutely is a proper subject here. The latter absolutely is not a proper subject for discussion here and will be dealt with.

Remember, there's a difference between following the law and getting away with not following the law.

Second, prosecutors use all the time all sorts of evidence to prove intent -- from circumstantial evidence to improvident statements made to others or on social media, etc.

 

[Spats McGee]

And the proof that Alvarez was the actual purchaser is the notation on the check he gave to Abramski before Abramski made the purchase. So if Alvarez had not prepaid for the gun, so that Abramski had used his own funds in making the purchase, the intent may have existed but would have been much harder, if not impossible, to prove beyond a reasonable doubt (which I assume is still the standard).

In this particular case, though, Abramski entered a conditional guilty plea. That's a situation in which the defendant pleads guilty, well, conditionally. The Defendant pleads guilty, but only if the court rules in the State's favor on particular questions. In this case, it's something like, "Yes, I performed the actions that you, Mr. Prosecutor, say I did, but they're not actually illegal because of X, Y or Z. We'll take the issue of legality up to the appellate court. If you're right, Mr. Prosecutor, I'm guilty and I'll take my lumps. If I'm right, I'm not guilty." In many cases, it's a search question. For example, the Defendant did possess 3 lbs of cocaine, but claims the search was illegal. If the court rules the search legal, Defendant is guilty. If not, the evidence obtained by the search is excluded, perhaps killing the case in the process.

More difficult, perhaps, but the prosecutor could have subpoenaed Alvarez to testify as to the agreement, for example. Perhaps even threatened him with conspiracy of some kind. And, as Frank points out:

Second, prosecutors use all the time all sorts of evidence to prove intent -- from circumstantial evidence to improvident statements made to others or on social media, etc.

 

[denton]

I think that all of the analysis of the Abramski case made a simple and common error in reading the troublesome question. I think that Abramski did not lie on his Form 4473.

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.

The virgule ("/") means OR. It does not mean AND.

The question reads, "Are you the actual transferee OR buyer of the firearm(s)..." If Abramski was EITHER the transferee or buyer, answering yes would be truthful.

Passing title and transferring possession are two different things, each addressed at different points in the applicable law. So there are probably issues regarding Alvarez not appearing in person. But even if Alvarez did not appear, and even if Abramski was not the actual buyer, Abramski was the intended transferee, and could truthfully answer yes.

In any event, we have just seen a man convicted because he incorrectly resolved a question that the Supreme Court split on, 5-4. That's expecting a lot of Abramski.

 

[barnbwt]

In any event, we have just seen a man convicted because he incorrectly resolved a question that the Supreme Court split on, 5-4. That's expecting a lot of Abramski.

Good point. Does he at least by now have sufficient time served to move on with his life?

The slash is most commonly used as the word substitute for "or" which indicates a choice (often mutually-exclusive) is present. (Examples: Male/Female, Y/N, He/She. See also the Gender-neutrality in Spanish and Portuguese section below.) The slash is also used to avoid taking a position in a naming controversy

I know Wikipedia is a laughably bad source, but it does seem "/" implies a choice, rather than a list in most cases. I'm sure Kagan would say it is self evident in this case that the form describes the more restrictive interpretation of its text (just so long as more burden is placed on the buyer ). Pretty pathetic canard to hang a SCOTUS case on, though --they'd probably laugh you out of the room during opening arguments.

In this particular case, though, Abramski entered a conditional guilty plea. That's a situation in which the defendant pleads guilty, well, conditionally. The Defendant pleads guilty, but only if the court rules in the State's favor on particular questions.

Ah, now it makes more sense. I had the feeling the defense's hands were tied with regards to the rationale of their argument. An affirmative defense kinda means you can only argue a certain way, and in this case it was a very poor decision since it could have been argued he had committed no crime without denying the circumstances. To be honest, why would one ever take this route? Especially if you weren't caught red-handed (like in a self-defense shooting) and the whole scenario was pretty contrived from the get-go (the whole bank robbery conceit)

TCB

 

[dogtown tom]

denton I think that all of the analysis of the Abramski case made a simple and common error in reading the troublesome question. I think that Abramski did not lie on his Form 4473.

Quote:
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.

The virgule ("/") means OR. It does not mean AND.

The question reads, "Are you the actual transferee OR buyer of the firearm(s)..." If Abramski was EITHER the transferee or buyer, answering yes would be truthful.

Passing title and transferring possession are two different things, each addressed at different points in the applicable law. So there are probably issues regarding Alvarez not appearing in person. But even if Alvarez did not appear, and even if Abramski was not the actual buyer, Abramski was the intended transferee, and could truthfully answer yes.

In any event, we have just seen a man convicted because he incorrectly resolved a question that the Supreme Court split on, 5-4. That's expecting a lot of Abramski.

Abramski lied because he was not the ACTUAL transferee, nor was he the ACTUAL buyer.
ATF uses "transferee/buyer" because not all firearm transactions that require a 4473 involve a "buyer".
The instructions on the 4473 make it pretty darn clear what "transferee/buyer" means.

 

[denton]

he was not the ACTUAL transferee

As I understand it, "transferee" in this context means someone to whom possession and control is transferred. What is Abramski, if not the transferee? The dealer said, "Here, Mr. Abramski. Here's your Glock." And then he transferred possession.

As an illustration, dealers advertise on gunbroker.com. When one of them accepts payment for a firearm, title passes to the payer. The seller transfers possession and control to an in-state FFL. The FFL then transfers possession and control to the payer after doing a background check. All that seems perfectly legal and proper.

As I understand it, anyone can hold title to an M2 machine gun. It's transfer of lawful possession that requires the paperwork and tax.

As I read 4473, it unnecessarily conflates ownership and possession. I don't think it is clear at all that transferee means someone to whom title is transferred. If transferee and buyer mean the same thing, then why mention both?

The really troubling thing is, that on this board we have some pretty sharp people who are trying to do things legally, and I doubt that everyone would have done any better at guessing the outcome of the Abramski case than Abramski did.

 

[dogtown tom]

If you don't understand.........read the instructions.

 

[Frank Ettin]

As I understand it, "transferee" in this context means someone to whom possession and control is transferred. What is Abramski, if not the transferee? The dealer said, "Here, Mr. Abramski. Here's your Glock." And then he transferred possession....

There may be some merit to that analysis, but it doesn't seem to have been argued in Abramski. There's also the issue of whether the instructions on the 4473 clear up any uncertainty. See the instructions to Question 11.a. on the current Form 4473 (emphasis in original):

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 18 U.S.C. § 922(g), (n), or (x). Please note: EXCEPTION: If you are picking up a repaired firearm(s) for another person, you are not required to answer answer 11.a. and may proceed to question 11.b.

 

[denton]

it doesn't seem to have been argued in Abramski.

That sounds right to me. So it would not have been considered.

The most troubling thing for me is the failure to apply the Rule of Lenity. Abramski's action did get four votes in the Supreme Court. So apparently the correct action was not all that clear to the Justices.