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No Federal law against straw purchase.

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russ1943 Donating Member (405 posts) Send PM | Profile | Ignore Mon Jun-27-11 02:31 PM
Original message
No Federal law against straw purchase.
Edited on Mon Jun-27-11 02:36 PM by russ1943
The blog of Julius (Jay) Wachtel, a retired Arizona ATF agent, contains some first hand insight regarding the prosecution or lack of prosecutions for what is referred to as straw purchasing. IMO The legal subtleties seem to create enforcement obstacles that require more time and manpower than is practical.

By Julius (Jay) Wachtel. http://www.policeissues.com/html/gun_control_09.html#Am...
Concerns that Mexico is losing its war with the cartels have focused attention on the flow of guns south. In May 2008 ATF agents scored a significant victory when they dismantled a trafficking ring that supplied nearly seven hundred guns to Sinaloan gangsters. Among these were the AK-47 rifles used to murder eight Culiacan police officers and an engraved super .38 pistol that drug kingpin Alfredo Leyva was caught carrying in his waistband.

Investigation revealed that two smugglers, brothers Hugo and Cesar Gamez got seven local residents to buy the guns at X-Caliber, a Phoenix gun store. Its owner, George Iknadosian, 47, was supposedly in on the scheme. In an unusual move, ATF chose to proceed under State law because Federal prosecutors were reportedly bogged down with immigration cases. Everything seemed to be going well until March 18 when Maricopa County (Ariz.) Superior Court judge Robert Gottsfield ruled that Iknadosian, the only one of the bunch who hadnt pled guilty, was in fact innocent.

What was the hang-up? Charges against the dealer were predicated on his alleged possession of a false instrument, meaning the Federal gun sales form, ATF Form 4473. Question 11(a) on the form must be answered yes or no:

Are you the actual buyer/transferee of the firearm(s) listed on this form? Warning: You are not the actual buyer if you are acquiring the firearms(s) on behalf of another person. If you are not the actual buyer the dealer cannot transfer the firearm(s) to you.

Iknadosian supposedly counseled the purported buyers to check yes, a lie, as they were only acting as agents for the brothers. (An exception on the form allows buying guns as gifts. Go figure.) But Judge Gottsfield concluded that under the circumstances that falsehood didnt amount to a crime. Heres an extract from his order exonerating Iknadosian:

The states case is based upon testimony of individuals who falsified question 11a on ATF Form 4473, i.e. that they were the actual purchaser of the firearms when they were not. The court agrees with the defense that for such falsity to amount to a fraudulent scheme or artifice...the falsification has to be a material misrepresentation. In order to be material, the falsification has to have resulted in an unlawful or prohibited person obtaining the weapons.

ATF Form 4473 is a Federal form, so the judge turned to Federal law to find out what it takes to falsify it. Title 18, United States Code, 922 (a)(6) forbids gun buyers from making any false or fictitious oral or written statement...likely to deceive with respect to any fact material to the lawfulness of the sale or other disposition of firearm or ammunition under the provisions of this chapter . Among other things, dealers cant deliver guns to felons, illegal aliens, juveniles, the adjudicated mentally ill and nonresidents (to keep local laws from being circumvented, persons are forbidden from buying guns outside their State of residence.) However, the law is silent about straw purchase, the practice of buying guns for others. Theres nothing in the provisions of this Chapter that forbids a dealer from selling guns to someone who intends to turn them over to a legally qualified possessor.

Theres no question but that straw purchases took place. But since the Gamez brothers and the pretend buyers were Arizona adults with clean records, and no evidence was introduced that a prohibited person wound up with a gun, the yes answers, while false, werent materially so. That view has been endorsed by appeals courts. In U.S. v. Polk, the only known case directly on point, the Fifth Circuit held that if the true purchaser can lawfully purchase a firearm directly, 922(a)(6) liability under a straw purchase theory does not attach. More recently, in U.S. v. Ortiz, the Eleventh Circuit ruled that straw purchases of firearms occur when an unlawful purchaser...uses a lawful straw man purchaser...to obtain a firearm .
.........................................more at link.............
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TheWraith Donating Member (1000+ posts) Send PM | Profile | Ignore Mon Jun-27-11 02:39 PM
Response to Original message
1. Your headline is wrong and misleading.
"However, the law is silent about straw purchase, the practice of buying guns for others. Theres nothing in the provisions of this Chapter that forbids a dealer from selling guns to someone who intends to turn them over to a legally qualified possessor."

Right. Because that's called buying someone a gift. That's not against the law. The definition of "straw purchasing" is buying a weapon for someone who is not legally allowed to own it. That IS against the law, as your own article states.
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russ1943 Donating Member (405 posts) Send PM | Profile | Ignore Mon Jun-27-11 07:25 PM
Response to Reply #1
3. Which Federal law uses or defines "straw purchase"?
Edited on Mon Jun-27-11 07:32 PM by russ1943
If my OP title is wrong then you can provide us with that Federal law.

What is someone charged with when they are brought before a judge?

Answer; Knowingly making a false statement 18 U.S.C. 924(a)(1)(A) ATF commonly uses this charge for straw purchasers who knowingly made false statements to gun dealers or in the records that gun dealers are required to maintain (Form 4473).

My too lengthy OP goes on to further describe how the courts currently interpret this law to mean that for such falsity to amount to a fraudulent scheme or artifice...the falsification has to be a material misrepresentation. In order to be material, the falsification has to have resulted in an unlawful or prohibited person obtaining the weapons.

For a law to be violated it must exist.
On page 58 of The U.S. Department of Justice Office of the Inspector General Evaluation and Inspections Division Review of ATFs Project Gunrunner November 2010 it states;
There is no federal statute specifically prohibiting firearms trafficking or straw purchases. It goes on; Consequently, ATF agents and federal prosecutors use other criminal statutes to charge individuals involved in firearms trafficking crimes. These statutes carry relatively low sentences, particularly for straw purchasers of guns. The Sentencing Guidelines also provide short sentences for firearms trafficking-related crimes.
http://www.justice.gov/oig/reports/ATF/e1101.pdf
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pneutin Donating Member (66 posts) Send PM | Profile | Ignore Tue Jun-28-11 01:45 PM
Response to Reply #3
8. Title 18 USC 922(d)
(d) It shall be unlawful for any person to sell or otherwise
dispose of any firearm or ammunition to any person knowing or
having reasonable cause to believe that such person -
(1) is under indictment for, or has been convicted in any court
of, a crime punishable by imprisonment for a term exceeding one
year;
(2) is a fugitive from justice;
(3) is an unlawful user of or addicted to any controlled
substance (as defined in section 102 of the Controlled Substances
Act (21 U.S.C. 802));
(4) has been adjudicated as a mental defective or has been
committed to any mental institution;
(5) who, being an alien -
(A) is illegally or unlawfully in the United States; or
(B) except as provided in subsection (y)(2), has been
admitted to the United States under a nonimmigrant visa (as
that term is defined in section 101(a)(26) of the Immigration
and Nationality Act (8 U.S.C. 1101(a)(26)));

(6) who (!2) has been discharged from the Armed Forces under
dishonorable conditions;

(7) who, having been a citizen of the United States, has
renounced his citizenship;
(8) is subject to a court order that restrains such person from
harassing, stalking, or threatening an intimate partner of such
person or child of such intimate partner or person, or engaging
in other conduct that would place an intimate partner in
reasonable fear of bodily injury to the partner or child, except
that this paragraph shall only apply to a court order that -
(A) was issued after a hearing of which such person received
actual notice, and at which such person had the opportunity to
participate; and
(B)(i) includes a finding that such person represents a
credible threat to the physical safety of such intimate partner
or child; or
(ii) by its terms explicitly prohibits the use, attempted
use, or threatened use of physical force against such intimate
partner or child that would reasonably be expected to cause
bodily injury; or

(9) has been convicted in any court of a misdemeanor crime of
domestic violence.
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rrneck Donating Member (1000+ posts) Send PM | Profile | Ignore Mon Jun-27-11 03:33 PM
Response to Original message
2. Definition of a straw purchaser:
Somebody who knows somebody. Which leaves authorities trying to regulate personal relationships.
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formercia Donating Member (1000+ posts) Send PM | Profile | Ignore Mon Jun-27-11 07:59 PM
Response to Original message
4. I know someone who spent 7 years in Federal Prison
for providing guns to the IRA. I don't call that a light rap.
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russ1943 Donating Member (405 posts) Send PM | Profile | Ignore Mon Jun-27-11 08:38 PM
Response to Reply #4
5. I don't think I ever said a 7yr sentence was a light rap.
Edited on Mon Jun-27-11 08:42 PM by russ1943
What does someone who spent 7 years in Federal Prison have to do with this?
Maybe Im not making my point very clearly.
What were they actually convicted of?
Which specific statute did they violate and get convicted of?

If what they were charged with was only;knowingly making a false statement in connection with firearm purchase (18 U.S.C. 922(a)(6)), and nothing else, then a 7 yr sentence was at least, unusual.

The OIGs analysis of ATFs case data found that 40 percent of all defendants who were charged and convicted of knowingly making a false statement in connection with firearm purchase (18 U.S.C. 922(a)(6)) one of the primary charges associated with straw purchasing received only probation.
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benEzra Donating Member (1000+ posts) Send PM | Profile | Ignore Mon Jun-27-11 08:49 PM
Response to Reply #5
6. Then perhaps some of those people should be prosecuted.
One would think that if the gun control lobby cared about prosecuting "straw purchases" 1/10th as much as they care about restricting aboveboard purchases, it would be easy to get movement on that issue. How much money and political capital has the Brady Campaign spent arguing for prosecution of straw purchasers, compared to what they've spent fighting to outlaw rifle handgrips and magazines that stick out?

Instead, the straw purchase issue seems to me to be more relegated to foot-in-the-door status as a means to prop up registration, new bans on lawful purchase/ownership of various guns, shutting down gun shows, or whatever.

And straw purchases are, in fact, generally illegal, and one would think that if the intended end user was a criminal, then the GCA would definitely apply. Not sure how these guys managed to avoid that, whether by good lawyers or by a case that was flimsier than was let on.
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rrneck Donating Member (1000+ posts) Send PM | Profile | Ignore Tue Jun-28-11 01:55 PM
Response to Reply #6
9. Dealing in political bling makes them more money. nt
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formercia Donating Member (1000+ posts) Send PM | Profile | Ignore Mon Jun-27-11 09:00 PM
Response to Reply #5
7. It was a similar scenario to the one you wrote of
He and his co-conspirators were purchasing firearms as a straw buyer and then shipping the weapons to the IRA. The end users were different but the M.O. was the same.
I don't know the details of the charges or the convictions, save the time he spent in Prison and I didn't ask for details.
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Glassunion Donating Member (1000+ posts) Send PM | Profile | Ignore Tue Jun-28-11 02:29 PM
Response to Original message
10. Yes there are Federal Laws that cover the activity of Straw Purchases
Edited on Tue Jun-28-11 02:30 PM by Glassunion
As you stated the basics of a straw purchase are covered under Title 18, United States Code, 922 (a)(6)

Let's walk through a straw purchase and we can get an idea of all of the penalties relating to this particular case.

Bob = Is the straw purchaser for the Gamez brothers(smugglers).

Bob is hired by the brothers to buy guns for them to smuggle to Mexico.
Bob goes to a gun shop and falsifies ATF form 4473
(Violating 922 (a)(6), penalty of 10 years)
Bob goes home and meets up with the Gamez brothers who pay him for the guns and he transfers them to the brothers.
(Violating 922 (a)(5), penalty of 5 years)
(Violating 922 (d)(5)(A), penalty of 10 years)


Depending on the judge and the prosecution you are looking at up to 25 years. But in our current day and age of plea bargaining, Bob would probably serve 2.
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