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Challenges to Whether Something Is Even a Federal Crime: My 15-Year Battle Against the “straw Purchase” Theory Might Bear Fruit in the Supreme Court

Kish Law LLC

I am always harping about how lawyers defending against federal crimes need to be creative, and need to challenge whether their clients even committed a crime. About 15 years ago, I raised a series of challenges against what is called the “straw purchase” theory of liability when a person buys a gun but later transfers the weapon to another person. The law merely says that gun dealer needs to keep records, and also says that the buyer cannot make a false statement about a “material” matter. ATF kept changing position, but finally said that it is a false statement about a material matter if the buyer intended to give the gun to another person. One of the cases where I raised this challenge resulted in an opinion in the United States Court of Appeals for the Eleventh Circuit, and can be seen here.

Earlier this week, the United States Supreme Court accepted a straw purchase case for review later this year or early in 2014. The case is United States v. Abramski.

Back when I was regularly screaming that straw purchases are not a crime, the situation usually involved somebody who was buying guns for “prohibited persons”, such as folks who had a prior criminal record and therefore could not get the firearm themselves. However, sometimes the later recipient was not a prohibited person, but the prosecutors and the judges still said it was a crime to walk into a store, plunk down money, and later hand the weapon over to somebody who had every right to own a gun. A few courts (in Texas and in Idaho) ruled that the straw purchase theory only makes it a crime when somebody walks into the store to buy a gun for a convicted felon, but these few courts finally acknowledged that it is not a crime when you buy a gun for a person who could do so themselves.

In the Abramski case that the Supreme Court agreed to hear, the defendant is a former police officer who bought a gun for his uncle. The uncle is legally entitled to buy a gun himself. Because Abramski worked in law enforcement, and therefore gets a discount at many gun stores, he bought the gun to save his uncle some money. Abramski checked a box on an ATF form indicating that he was the “actual buyer.” However, the government takes the position (as set out on that particular Form) that a person who buys a gun intending to later transfer it to someone else is not an “actual buyer.” After discovering that Abramski bought the gun for his uncle but had checked the “actual buyer” box on the ATF form, the government indicted him for making a false statement on the Form.

This case has several important things to keep in mind. First, I never cease to be amazed at some of the cases brought into federal criminal court. This situation seems to be complete BS, and unless there is some back story, one wonders why federal authorities are wasting their time going after a law enforcement official who simply wanted to save his uncle a few bucks. Second, this case also reminds me that people facing federal crimes need lawyers who are not afraid to challenge even accepted theories of prosecution. I happened to be one of the first attorneys challenging the straw purchase theory. Mr. Abramski’s lawyers repeated many of my arguments, and I fully expect that these arguments might bear fruit in the Supreme Courrt.

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