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Defense bar urges caution after ‘straw buyer’ ruling

By: Kimberly Atkins//June 22, 2014

Defense bar urges caution after ‘straw buyer’ ruling

By: Kimberly Atkins//June 22, 2014//

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WASHINGTON — The recent ruling from the U.S. Supreme Court holding that a man who bought a firearm on behalf of another qualified buyer violated a federal law barring “straw purchases” of guns may be limited to its facts.

But the decision in Abramski v. U.S., No. 12-1493, is still spurring lawyers to advise their gun-purchasing clients to exercise caution — and follow the law to the letter ¬— to avoid potential prosecution.

“I think this is a classic case of buyer beware,” said Craig Pisarik, a criminal defense attorney in Rock Hill, South Carolina.

The key takeaway is that failing to be truthful can have serious criminal repercussions when it comes to firearm sales.

“I don’t see this as a shocking ruling or anything that changes the status quo,” said John Pierce, an attorney whose Bristol, Virginia practice focuses on firearms law. But, he said, it is a powerful reminder “not to make a false statement in federal gun purchasing paperwork.”

A favor gone awry

The case stems from a gun purchase Bruce Abramski, a former police officer, made for his uncle. Although the uncle was qualified to buy a gun, Abramski sought to purchase it for him because Abramski was eligible for a law enforcement discount.

When Abramski purchased the gun in Virginia, he used his own name and passed a required background check. But in his paperwork, he answered “Yes” to the question: “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.”

After the purchase, Abramski traveled to his uncle’s home state of Pennsylvania to transfer ownership of the gun through a licensed gun dealer.

A federal agent who was investigating Abramski for a different crime subsequently discovered that his uncle had sent him a check for the cost of the gun with “Glock 19 handgun” written on the memo line before the initial purchase in Virginia. The agent also discovered that in his paperwork Abramski had asserted that the gun was for his own use.

A grand jury indicted Abramski for making a false statement about the identity of the buyer that was “material to the lawfulness of the sale” under 18 U.S.C. §922(a)(6), the law designed to outlaw such “straw purchases” of guns.

He moved to dismiss the indictment, arguing that § 922(a)(6) did not apply because his uncle, the intended buyer, was another lawful purchaser. His answer to the question on the paperwork, he argued, was immaterial since the purchase was not made for an illicit purpose.

A U.S. District Court denied the motion and the 4th U.S. Circuit Court of Appeals affirmed, holding that the law applies to such purchases even if the gun will be resold to an individual qualified to buy a gun.

The 4th Circuit decision widened the circuit split on the issue, with the 6th and 11th Circuits holding that purchasers like Abramski could be liable under the law, while the 5th and 9th Circuits held to the contrary.

In a divided decision, the Supreme Court affirmed the 4th Circuit, holding that Abramski’s misrepresentation was material.

“Abramski’s reading would undermine — indeed, for all important purposes, would virtually repeal — the gun law’s core provisions,” wrote Justice Elena Kagan for the 5-4 majority, noting that the purpose of the law is to verify the buyer’s qualifications and keep a permanent record of information about the buyer’s purchase. “The twin goals of this comprehensive scheme are to keep guns out of the hands of criminals and others who should not have them, and to assist law enforcement authorities in investigating serious crimes.”

In dissent, Justice Antonin Scalia used those very goals to underscore his view that Abramski’s representation was not material, given that there was no unqualified buyer.

“The Government’s contention that Abramski’s false statement was material to the lawfulness of the sale depends on a strained interpretation” of the law, he wrote.

States divided; lawyers say stick to the truth

The case divided states who lined up on either side as amicus curiae. Twenty-six states — including Arizona, Louisiana, Michigan, Missouri, Oklahoma, South Carolina and Virginia —backed Abramski, as did gun rights groups like the National Rifle Association.

Nine states and the District Columbia urged the court to adopt the government’s interpretation of the statute. Those on the winning side cheered the ruling, calling the victory crucial to law enforcement officials’ efforts to keep guns out of the wrong hands.

“Knowing the identity of the true buyer of a gun allows for a complete background check and is a key tool to keeping firearms away from people who should not have them,” said Massachusetts Attorney General Martha Coakley in a statement after the ruling. New York and Maryland joined Massachusetts in support of the government.

Criminal attorneys said the result was not unexpected.

“The only surprising thing about the ruling is that such a case even went all the way to the Supreme Court,” said Pierce, who pointed out that the evidence against Abramski came about through federal officials’ investigation of unrelated charges.

But the decision did answer the open question of whether qualified buyers can still run afoul of the “straw purchaser” law. Now that the issue is settled, lawyers can better advise their clients.

Immediately after the ruling, Pierce said he started receiving questions about the impact of the ruling, such is whether it is illegal to buy a gun for another as a gift.

While gift purchases are not barred by the law, he said, the ruling is a reminder for purchasers to be careful.

“My advice if you are buying a firearm as a gift is to just send the recipient the money” so he can purchase the gun himself, he said.

If you want to surprise the recipient, “under no circumstances should you accept any compensation for it,” Pierce said. “A gift needs to be a gift.”

Attorneys said they don’t expect a flurry of prosecutions under the law. The fact that prosecutors had such clear, smoking-gun evidence — such as the check from Abramski’s uncle indicating that the money was for a gun purchase — made this case an unusual one.

“I do believe this case may end up being somewhat of an outlier,” Pisarik said. “There was a clear paper trail showing the actual purchaser’s intent was to buy the gun for somebody else. In reality, there often won’t be such a clear paper trail showing a person’s intent at the time of the purchase.”

In that case, he said, “the government will have a difficult time proving this type of violation.”

Questions or comments can be directed to the writer at: [email protected]

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