Bruce James Abramski Jr.
Courtesy Franklin (VA) News-Post
In the Monty Python Pantheon of Silly, this case takes the prize. It is a lawsuit against a question on a Federal form.
When he went to buy a gun, Bruce Abramski checked Yes on ATF form 4473, that he was “the actual transferee/buyer” of a Glock 19.
In truth, he was not. It was a false statement.
As he arranged in advance, Abramski bought the Glock for his uncle and delivered it to him four days later. At the time he bought it, Abramski was a "straw purchaser."
After losing his motion to suppress evidence of the deal, he pleaded guilty - conditionally - pending appeal. The Fourth Circuit Court of Appeals denied his claims and his attorneys managed to convince SCOTUS that this was a case worth reviewing. Oral arguments are scheduled for January 22, 2014.
Below the orange bulls eye are the facts, summaries of the arguments and some thoughts on this case.
|The chronology and links to the briefs can be found in SCOTUSblog, an excellent resource.
DISCLAIMER: What follows is general information on a law topic. Nothing in this diary constitutes legal advice and is not to be acted upon as legal advice. Criminal law and procedure is a law practice specialty. If you need advice, get it from a skilled professional.
Angel "Danny" Alvarez, a resident of Pennsylvania, wanted a handgun. He sought the advice of his nephew, Bruce Abramski, who had been a Roanoke, Virginia, police officer. Abramski offered to buy the gun for him at a police discount although he had been dismissed from the force. Alvarez sent him a check for $400 with "Glock 19 handgun" written on the memo line and Abramski purchased one from Town Police Supply, a licensed Federal firearms dealer in Collinsville, Virginia. Four days later, he travelled to Pennsylvania, got a receipt from Alvarez and completed the transfer thorough a gun dealer there as provided for in Federal law.
Gun purchasers are required to sign a Firearms Transaction Record, ATF Form 4473
. Question 11a asks:
a. 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.
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. ... (all emphasis in original)
When he checked “Yes” on #11A, Abramski knowingly made a false statement about his purchase. A Federal grand jury indicted Abramski for two felonies carrying fines up to $250,000 and 5 to 10 years in jail. He entered a conditional plea of guilty and was sentenced to five years probation. (While these offenses aren't typically charged apart from other gun-related crimes, this is a minimal penalty for two felonies.)
Abramski argues that ATF's question and the answer it requires are improper in a case like his, where both the straw purchaser and the intended recipient are legally entitled to buy a gun. After all, both can pass a background check and neither is barred from owning a firearm under any provision of Federal law.
He argues that a buyer's intention to resell a gun "in the future" is not material to the lawfulness of the sale and it is not information Congress required dealers to keep under the Gun Control law. Moreover, he points out that Congress did not explicitly make straw purchases illegal. His appeal briefs sidestep his "misstatement" by attacking Q11a, contending that the ATF exceeded its authority and went beyond Congress's intent in the gun statutes.
The Fourth Circuit Court of Appeals upheld Abramski's convictions on the counts as charged. It held that because the sole reason for Abramski's purchase was to sell the Glock to his uncle, he lied on the ATF form about being the “actual buyer” and thereby violated 18 US Code Sec. 922(a)(6) (Count I). It held that the “identity of the purchaser of a firearm is a constant that is always material to the lawfulness of the purchase of a firearm." Count II dealt with the records of Federally licensed dealers. The Appeals Court decided that whether a firearms acquisition is lawful or not, a false statement about it is a criminal offense on the dealer record, so Abramski also violated 18 US Code Sec. 924(a)(1)(A).
STRAW PURCHASES and FIREARMS
A straw purchaser is someone who buys something for somebody else - at law, an agent for a principal whose identity may or may not be disclosed. It's like the phrase "straw man," for a thing or person that is apparent but has no real substance - a facade or fiction.
Typically, a straw purchase occurs when a direct purchase would be difficult (buying groceries for an invalid or work tools for someone with poor credit) or the real buyer does not want his name known or be identified with the purchase (e.g., buying up real estate). Sometimes, a straw purchase is attempted where the ultimate buyer could not legally make the purchase (buying alcohol or cigarettes for a minor, for example). In such cases, identifying the ultimate buyer would show the purchase was illegal.
In 1968, Congress made it illegal for gun dealers to sell firearms to "prohibited persons" such as juveniles, felons, fugitives, drug addicts, the mentally incompetent and aliens. To enforce this and other provisions of Federal law, Congress also made it unlawful for a gun purchaser (1) to make any false statement “with respect to any fact material to the lawfulness of the sale” and (2) to make any false statement or representation on the records a gun dealer is required to keep concerning the transaction.
Since the mid-1990's, the ATF disallowed all straw purchases from Federally licensed dealers, as its Form 4473 provides. The Bureau of Alcohol, Tobacco and Firearms Enforcement concluded that gun buys which conceal the identity of the true purchaser are the most common way criminals get guns and account for almost 50% of gun trafficking investigations. Federal Circuit Courts are divided on the application of the straw purchase doctrine.
Petitioner Abramski :
... whatever the merits of the straw purchaser doctrine generally, it certainly cannot apply where a gun buyer purchases a firearm for another lawful buyer. In that circumstance, the underlying rationale for the doctrine — preventing guns from falling into the hands of those not legally entitled to possess them — does not apply. Because this Court narrowly construes any judicial expansion of a criminal law, it should reject application of the straw purchaser doctrine in circumstances involving lawful gun buyers.
The statute prohibits false statements material to the lawfulness of “the sale,” i.e., the one between the buyer and the dealer, not some other hypothetical sale involving an absent party. 18 U.S.C. 922(a)(6). [As the Appeals Court held,] the true identity of a firearm purchaser is always material to a sale by a dealer.
The government dismissed Abramski's reliance on Alvarez being a lawful buyer. "Congress regulated firearm transactions not only to keep guns out of the hands of ineligible purchasers but also to trace weapons found at crime scenes." Moreover, Abramski's purchase sidestepped many restrictions on "physically absent buyers" like Alvarez.
Amici Briefs by Friends of the Court
|Sidebar: Upon leave of Court or consent of the parties to a case, individuals, organizations or governmental bodies may file briefs as an amicus curiae, literally a "friend of the court" although they are to designate which party to the case they support. In Abramski, dozens of parties participated in a total of six amicus briefs, establishing that gun cases do draw friends. An amicus is not supposed to simply repeat arguments made by the parties to the case, but several did. Here are selected highlights.
Congressman Steve Stockman
(R-TX 36, who is challenging Sen. John Cornyn in the Republican Senatorial primary), along with a former Assistant ATF Director and 12 gun education/advocacy groups, apparently set out to offend everyone whose position he disagrees with. His brief termed the straw purchase doctrine and its application in this case ...
... a legal construct created by an overzealous administrative agency [the ATF “corrupted the administrative process”], employed by cooperative prosecutors [an "absurd prosecution"], and sanctioned by deferential courts [an "unjust conviction"], but not an actual crime enacted by Congress or even by administrative regulation.
The NRA’s Defense Fund
recounted the history, pointing out that the ATF changed its mind in 1995, to disable almost every straw purchase:
Without any basis in law, BATFE changed its position and made what it previously asserted was a perfectly lawful act, into a new prohibition.
Two individual defendants
in a Federal case in California also filed. Their case - a straw purchase by a cop with resale a month later - was stayed by a Federal trial court in California because Abramski
West Virginia, together with 25 other states and Guam (most with Republican governors and legislatures) argued states rights:
The United States’s approach also displaces the States from deciding whether and how to regulate the private intrastate transfer of firearms. In the absence of a federal statute and in response to their citizens’ preferences, the States have enacted a variety of different regimes relating to the private intra-state transfer of firearms. The United States threatens to usurp these state legislative decisions by federal executive fiat. …
As Congress implicitly recognized by regulating only interstate private firearms sales, state-based decision-making in this area makes sense and is consistent with this nation’s foundational commitment to federalism. Attitudes toward firearm ownership and lawful use vary significantly from state to state.
They were the only parties to raise a Second Amendment issue. They chose a bold but artfully backhanded way:
To adopt the United States’s view, this Court would have to decide for the first time whether such a further restriction on the access of 18- to 20-year-old adults to handguns implicates the Second Amendment and, if so, whether it survives constitutional scrutiny. Rather than wading into this contested area of law, this Court should adopt amici States reading of the statutes, which does not raise any potential constitutional questions.
briefs supported the ATF's position. Hawaii, joined by eight other states including New York, Illinois and DC,
buttressed the law enforcement objectives of the ATF’s approach to straw purchases:
Some straw purchases conceal an actual buyer who is ineligible to possess a gun, of course, but others conceal actual buyers who wish to withhold their identities for other reasons — to obscure a high volume of gun purchases, for example, or to avoid being traced to the gun after it is used in a planned crime.
The Brady Center to Prevent Gun Violence
was joined by the Major Cities Chiefs Association (56 large PD's across the country) and the International Brotherhood of Police Officers. Its brief is devoted to the role background checks as "the primary means by which the federal government ensures and regulates transfers of firearms to lawful purchasers through [Federal licensed dealers]."
If a buyer could simply provide a false name, or if the buyer could designate an agent whose name would be provided (instead of the actual buyer’s name), the purpose of the [background check system] would be undermined. ...
In many cases ... purchase records will be the primary or even the sole resource available to investigators seeking to identify the owner of firearms used in criminal activity. The importance of maintaining complete and accurate records of such information does not dissipate merely because the actual purchaser may be lawfully entitled to purchase the weapons.
So, what began as a small and silly case over a form has morphed into quite the matter of high principle involving more than 30 states and 50 major cities. How to think about this?
OBSERVATIONS ABOUT ABRAMSKI v. US
1. Straws in the Wind: Turnaround Resale. This case is not about a general right to resell a gun. At issue is the turnaround sale, a gun purchase made for an undisclosed buyer. That is the target of the ban on straw purchases of guns - the ability to hide the identity of the true purchaser, buy guns in undetectable quantities and make it more difficult for law enforcement to trace them.
As a practical matter, the answer to Q 11a turns on timing and intention: when did the original purchaser adopt an intention to resell the piece? A case like this, where the prosecutor can prove there was an arrangement before the first buyer made his/her purchase, is a perfect example of a straw purchase.
But Abramski argues, in effect: Trust me. I am going to sell to an eligible repurchaser, so don't even ask. There's nothing to see here. This argument would be simply naive if it went no further. However, its logical and practical conclusion is that there would be no inquiry at all about a gun buyer's intent to resell a firearm at any time "in the future." Abramski's rationale would scuttle a tool of law enforcement against straw purchases. SCOTUS could go there, of course, but that would seem to be an uphill proposition for a law-and-order Court.
2. Congress's Gun Control Act and its successors are not model pieces of legislation. Like many other statutes, they are the gangly offspring of compromises which may not be entirely sensible policy or even internally consistent within their own provisions. For Congress to specify that buying a gun to give to someone is lawful but then not to deal directly with buying one while intending resale seems, well, odd. The Courts and the ATF have dealt with this for 20 years but it is there to be challenged by those who probably didn't want any law on the subject in the first place. Check out the amicus briefs filed by Stockman and West Virginia and consider the legal arguments that concoct "legislative history" out of the absence of legislative action after Newtown.
3. Could Disclosure be a Cure? As we all know, the Court's conservatives insist they are not activists and the Court does not legislate. (No sireee!) However, should SCOTUS feel compelled to act, it could set forth a simple and conservative fix, one consistent with the interests of both parties to this case: require disclosure of straw purchases and the parties to them.
4. Backstories. Curious minds might want to know - How did the Feds get evidence of the transaction between Abramski and Alvarez?
Bruce Abramski purchased the Glock 19 and other items for $2000 in cash from a gun shop in Collinsville, Virginia, on November 17, 2009. Five days earlier, on November 12, 2009, $4000 in small bills was taken by a masked and hooded man in a bank robbery in Rocky Mount in SW Virginia, 23 miles from Collinsville.
Seven months later, the FBI executed search warrants for two houses Abramski occupied. One search uncovered a green zippered money pouch with the name of the bank on it. (!) In it was the receipt Alvarez gave Abramski for the gun. (!!) The Feds did not file charges but a Virginia grand jury indicted Abramski for three counts of armed robbery. The charges were pending for several months awaiting evidence from the FBI. It never arrived and the state prosecution was eventually dismissed: "We just couldn't get the stuff in a timely manner," a county DA said. (!!!) The Federal indictments at issue in this case followed a few weeks later.
During this time, Abramski had been jailed for 3 1/2 months after allegedly voicing threats to a former Roanoke PD colleague about wanting to kill police officers and deputies. The Roanoke Times covered the story. One of its blogposters reported that the bank's video surveillance was inconclusive, the teller's identification of Abramski from photos was questionable, no bank pouch had been involved in the robbery, Abramski's wife once worked at the bank (and it had given away the money bags in a promotion) and the former police colleague later equivocated about the alleged threats.
As Bruce Abramski commented, this was a series of "false accusations" and "unfortunate coincidences."
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