Supreme Court Upholds Abramski’s Conviction for “Straw Purchase”

By Allen Thompson, Esq.

Yesterday, the Supreme Court of the United States issued its long-awaited opinion in Abramski v. United States, 573 U.S. ____ (2014). The Court, in a 5-4 decision along predictable lines, determined that Abramski’s conviction for “straw purchasing” could stand under the Gun Control Act.

As readers of this blog are aware, 18 U.S.C. § 922 requires a litany of procedures in order to purchase a firearm from an FFL. That litany includes regulations on what information must be provided to the dealer and what information the dealer is required to retain on file. What is also well known is that, unlike some states, the federal government does not expressly prohibit “straw purchases;” that is, no statutory provision makes it illegal for John Smith to purchase a gun for Jim Jones, with Jim Jones’ money. The Court acknowledged as much, but found that the overall scheme of the Act is designed to effectuate Congress’ “principal purpose” of “curb[ing] crime by keeping firearms out of the hands of those not legally entitled to possess them.” Slip op. at 11.

Justice Scalia, writing for the dissent, disagreed. As he usually does, Justice Scalia emphasized the actual language of the law. That language concerns the transaction between the buyer (the person at the counter) and the seller (the FFL). The language also expressly exempts particular third-party sales – those intended for gifts and those intended for resale – from the scope of the statute. Scalia notes, correctly, that the only difference in a private sale occurring five minutes after a purchase and a “straw purchase,” is the timing of the exchange of money. If John Smith purchases a gun with his own money, then sells it to Jim Jones and recoups the cost, the transaction is entirely legal, even if John Smith intended all along to buy it and sell it to Jim Jones. However, under the Majority’s view, if Jim Jones gives John Smith the money first, the sale is a “straw purchase” and illegal. The majority ignores this issue – it must have fallen outside the context of the regulatory scheme – and rests on the fact that Congress expressly authorized those exceptions, for some reason. But aside from the fact that Congress expressly authorized third party firearms sales, the majority divined Congressional intention for every other scenario, despite the legislature’s absolute silence on the issue. Apparently these express allowances for third party purchases were not considered to be relevant in the overall analysis of the statutory scheme.

What is interesting about the decision, however, is that it expressly disavows any deference to ATF’s interpretations of criminal statutes (although it conveniently upholds ATF’s current, court-favored interpretation). Slip op. at 21. The Court emphatically declined to give any deference to ATF’s interpretation of the statutes precisely because it is a criminal statute, codified in Title 18 of the U.S. Code (reserved for criminal statutes). While the Court’s apparent reason for disavowing any reliance on ATF’s interpretation was ostensibly to discredit Abramski’s argument that, at one point, ATF actually took exactly the same petition Abramski was proposing, it may well have opened quite a large door for firearms proponents. For example, the terms “firearm,” “silencer,” and “machine gun” are all defined in 18 U.S.C. § 921, part of the Criminal Code. Did the Court just invalidate all of ATF’s interpretations regarding what constitutes a firearm, silencer, or machine gun for purposes of criminal prosecutions?

This is not merely academic, as anyone who has had the misfortune of engaging a government agency in a legal battle knows that the courts typically defer to the agency on questions of interpretation of definitions and statutes. Now, however, a powerful argument can be made under Abramski that ATF’s determinations are to be given no deference at all, as many of the firearms regulations come under the Criminal Code (the rest come under the Tax Code). By way of example, ATF’s determination that Sig’s MPX-C muzzle brake is actually a silencer should no longer be given any deference, as the definition of “silencer” falls under the Criminal Code.

Of further interest is the blatant attempt to expand the scope of the Gun Control Act. As Scalia correctly argues in his dissent, “[w]e must accept that Congress, balancing the conflicting demands of a divided citizenry, wrote the statute that it wrote – meaning, a statute that goes so far and no further.” Scalia dissenting, Slip op. at 10. Scalia’s point is well taken: the approach the Court needed to take is not a “purpose-based” approach, but a legal approach. It is well understood that Congress intended to regulate the sale of guns in order to prevent individuals who it desired to prohibit from possessing firearms from gaining access to them. However, it “wrote the statute it wrote” and that statute does not prohibit individuals from purchasing firearms for someone else. Regardless of whether prohibiting “straw purchases” is desirable, stops crime, or is looked on favorably by five Supreme Court Justices, Congress has not prohibited the act. The Court cannot criminalize third party purchasing merely because it feels that it is in line with the overarching goal of the statute. Penumbras and legal emanations may be well and good in discovering new rights, but they are certainly not welcome in creating new crimes, ex post facto, especially where the act is only criminalized by a band of bureaucrats and not even remotely supported by statute.

Unilaterally expanding the scope of the statute contradicts the Court’s façade of disregarding ATF’s determinations. Early in the opinion, Justice Kagan acknowledges that regulations prescribed by the Attorney General “or his designee” apply to dealers. Slip op. at 3. And if the regulation states that a dealer must keep a particular record, well, then, the dealer must do it, regardless of whether it is prescribed by the statute. This is precisely how the Court justifies its finding that the false statement that Abramski was the actual purchaser was “material.” The majority found that because the dealer was required to keep the Form 4473, everything on the form must be relevant. Scalia, in correcting the majority in his dissent, recognizes that while ATF was free to regulate the implementation, it could not rewrite the law. So while 27 CFR § 478.124(c)(1) requires a litany of information, and § 478.124(a) requires the dealer to retain the Form 4473, neither provision requires that the purchaser answer whether he is the “actual purchaser” or a third party purchaser. As Scalia writes:

On the majority’s view, if the bureaucrats responsible for creating Form 4473 decided to ask about the buyer’s favorite color, a false response would be a federal crime. That is not what the statute says. The statute punishes misstatements ‘with respect to information required to be kept,’ . . . not with respect to ‘information contained in forms required to be kept.’ Because neither the Act nor any regulation requires a dealer to keep a record of whether a customer is purchasing a gun for himself or for an eligible third party, that question had no place on Form 4473 . . .

Dissent, Slip op. at 14-15.

Scalia is precisely correct. Whether the majority desperately desired that Congress included a “straw purchase” provision in the statute, whether the majority wished that the third party purchaser information had been included in the regulation, and whether the majority thought it important and wise public policy to require a dealer to know information about the ultimate possessor of the firearm, matters not at all. Congress wrote a statute; that statute informs the public as to what acts are lawful and which shall be criminally punished. The statute does not proscribe purchasing a firearm for another individual. Therefore, despite the Court’s dissatisfaction with Congress’ statute-drafting abilities, there was no basis for convicting Bruce Abramski or upholding that conviction.