1. Is a gun buyer’s intent to sell a firearm to another lawful buyer in the future a fact “material to the lawfulness of the sale” of the firearm under 18 U.S.C. § 922(a)(6)?
2. Is a gun buyer’s intent to sell a firearm to another lawful buyer in the future a piece of information “required … to be kept” by a federally licensed firearm dealer under § 924(a)(I)(A).
Lower court opinion: United States v. Abramski, 706 F.3d 307 (4th Cir. 2013)
This case presents a significant question about the federal law that makes it a crime for a person buying a gun from a dealer “knowingly to make any false or fictitious oral or written statement … intended or likely to deceive … with respect to any fact material to the lawfulness of the sale ….” 18 U.S.C. § 922(a)(6). This is the provision the government uses to prosecute so-called “straw purchases”: the purchase of a firearm by one individual (the “straw purchaser”) on behalf of another individual (the “actual buyer”), a maneuver that allows the actual buyer to obtain a gun even if he is legally barred from buying one. This is a court-created doctrine, a legal fiction that treats the ultimate recipient of a firearm as the “actual buyer,” and the immediate purchaser as a mere “straw man.”
The courts agree that a buyer’s intent to resell a gun to someone who cannot lawfully buy it is a fact “material to the lawfulness of the sale.” But the Fourth, Sixth, and Eleventh Circuits have split with the Fifth and Ninth Circuits about whether the same is true when the ultimate recipient can lawfully buy a gun. The former, including the lower court in this case, conclude that the identity of the actual buyer is material regardless of whether the person can own the gun or not:
The identity of the purchaser is a constant that is always material to the lawfulness of the purchase of a firearm under § 922(a)(6). Thus, it can be reasoned that although the lawfulness of a sale may change depending on the identity of the purchaser, the fact that the identity of the purchaser is material to the lawfulness of the sale does not.
United States v. Frazier, 605 F.3d 1271, 1280 (11th Cir. 2010) (emphasis added). The other circuits, by contrast, hold that:
the plain language of the statute compels the conclusion … that § 922(a)(6) criminalizes false statements that are intended to deceive federal firearms dealers with respect to facts material to the “lawfulness of the sale” of firearms…. Thus, if the true purchaser can lawfully purchase a firearm directly, § 922(a)(6) liability (under a “straw purchase” theory) does not attach.
United States v. Polk, 118 F.3d 286, 295 (5th Cir. 1997).
Though the Seventh Circuit hasn’t taken a side on this question, the Supreme Court’s resolution of this split will clearly be important for federal practitioners. What about state practitioners? The closest Wisconsin law is § 175.35. That statute imposes a waiting period for handgun purchases and requires a purchaser to provide identification and fill out a form which the dealer uses to conduct a background check to make sure the buyer may lawfully purchase the gun, § 175.35(2)(a) and (2g). The buyer “shall provide truthful information” on the form, § 175.35(2e), and failure to do so is a misdemeanor, § 175.35(3). There are no cases dealing with “straw purchases” under our statute, perhaps because a person falsifying information on the state form would also be falsifying information on the federal form and be prosecuted under federal law. Though our statute lacks the materiality language in the federal statute, it is clear the purposes of the two provisions are the same, so the Court’s decision in this case might make a difference in how § 175.35(2e) is interpreted–should it ever be invoked in a “straw purchase” prosecution.
Interesting.