Gun Control Act of 1968 - Material Misrepresentation

Harvard Law Review, November 2014 | Go to article overview

Gun Control Act of 1968 - Material Misrepresentation


The Gun Control Act of 1968 (1) seeks to prevent certain classes of people from purchasing firearms and to make it easier for law enforcement to trace guns used in crimes. (2) Two provisions of the Act play an important role in facilitating these goals: First, 18 U.S.C. [section] 922(a)(6) makes it unlawful for any "person" acquiring a firearm from a licensed seller to make false statements "with respect to any fact material to the lawfulness of the sale." (3) Second, 18 U.S.C. [section] 924(a)(1)(A) makes it unlawful for such a person to make false statements "with respect to the information required by this chapter to be kept in the records of a [licensed seller]." (4) The circuit courts were divided over whether these provisions made it unlawful for a "straw purchaser" who purchased a gun for someone who could legally purchase it himself to hold himself out as the "actual buyer." (5) Last Term, in Abramski v. United States, (6) the Supreme Court held that straw purchasers who present themselves as actual buyers have made a statutorily proscribed false statement because this representation conceals the actual buyer, and "[n]o piece of information is more important under federal firearms law than the identity of a gun's purchaser." (7) The majority's interpretation of the word "person" as relevant to [section] 922(a)(6)'s materiality requirement appropriately relied on statutory purpose to resolve apparent ambiguity in the statute, allowing the Court to preserve the effectiveness of key provisions of the statute. Given that interpretation, however, the Court's reading of [section] 924(a)(1)(A) was not compelled by statutory purpose, and because the statutory context also did not resolve the textual ambiguity, the rule of lenity should have broken the tie in favor of the defendant.

In 2009, Bruce Abramski Jr. offered to buy a handgun for his uncle, Angel Alvarez--even though Alvarez could legally purchase the gun for himself (8)--because Abramski believed he could get a discount. (9) Alvarez sent Abramski a check for $400, and on November 17, 2009, Abramski purchased a Glock 19 handgun for Alvarez from a federally licensed dealer in Virginia. (10) During the transaction, Abramski filled out Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) Form 4473, which asked in Question 11.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." (11) Abramski checked "yes." (12) He then transferred the handgun to Alvarez at a licensed dealer in Pennsylvania. (13) On July 19, 2010, federal agents found a receipt from the transfer while executing a search warrant on Abramski's house in connection with a bank robbery investigation. (14)

The government charged Abramski in the Western District of Virginia with (1) violating [section] 922(a)(6) by making a false statement material to the lawfulness of a firearm sale, (15) and (2) violating [section] 924(a)(1)(A) by making a false statement with respect to information required to be kept in a firearm dealer's records. (16) Abramski moved to dismiss both counts, arguing that his conduct was legal because he made no material misrepresentations, and that he legally transferred the gun to Alvarez. (17) The district court denied the motion, ruling from the bench that a false statement on Form 4473 violates [section][section] 922(a)(6) and 924(a)(1)(A). (18) Abramski filed a second motion to dismiss, arguing that Question 11.a "is not required by [the Act]." (20) Chief Judge Conrad again denied the motion, concluding--in accord with the Third and Eleventh Circuits--that the Act requires recording the identity of the actual buyer, not the straw purchaser. (21) Abramski subsequently entered a conditional guilty plea, reserving his right to challenge the rulings, and the court sentenced him to concurrent five-year probation terms. …

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