By RICHARD WEATHERINGTON
Sometimes a prohibited person will ask a relative to buy firearms. A buyer who is caught after making a straw purchase is usually trapped by his or her own answers and signature on the Bureau of Alcohol, Tobacco, Firearms, and Explosives Form 4473, as a relative recently discovered.
A woman, whose first name was Barbara, moved to Georgia from Elizabeth, N.J., in early August 2008. On August 18, she went with her brother to a Georgia pawnshop about 1.5 to 2 hours away to look at some handguns. Barbara and her brother browsed and physically handled the guns together.
The brother was interested in several handguns — in particular, a Taurus 92 handgun with a laser sight. When the pawnshop clerk mentioned that the ATF would be notified immediately of a transaction involving multiple guns, Barbara told him that she and her brother were starting a gun collection.
She purchased five handguns that day, including the Taurus 92, another Taurus 9-millimeter, two Hi-Point 9-millimeters, and a .45 caliber pistol. A receipt made out to Barbara indicated that she paid $1,357.75 in cash. She completed a multiple-sale form and an ATF-4473 form.
On the Form 4473, she answered “yes” to the question, “Are you the actual buyer of the firearm listed on this form?” The form included a “warning” that a dealer could not transfer a firearm to an individual if the individual was acquiring it on someone else’s behalf.
While Barbara and her brother were looking over the guns, another customer was completing paperwork to trade in two guns from his collection. The brother approached him and asked whether he had any other guns that he would be interested in selling. He told him about a .357 Magnum that he wanted to sell.
The seller met Barbara and her brother in the parking lot of a gas station. Barbara’s brother handled the .357 Magnum and said that he wanted to purchase it, but Barbara would be making the actual purchase. Barbara then completed the bill of sale.
Some of the guns purchased by Barbara began to turn up in New Jersey. One of the Hi-Point 9-millimeter pistols was recovered on
Sept. 15, 2008. The Taurus 92 was recovered on Oct. 13, 2008, and the .45 caliber pistol was recovered on Oct. 22, 2008.
Barbara reported to the Sheriff’s Office on Sept. 24, 2008, that six firearms had been stolen from her.
As a result of the recovery of the three firearms in New Jersey, an ATF Agent interviewed Barbara at her home on Nov. 20, 2008. She told him that she had wanted to buy six firearms, one for every room in her home.
In explaining why she had purchased the guns at a pawnshop so far from her home, she initially said that she was looking for employment and just happened to see the pawnshop. Later, she said that she happened to be in the area while going to visit another brother.
She also gave differing explanations for how she came to pay in cash, first indicating that she happened to have with her $3,600 that she had brought from New Jersey, then stating that she withdrew $2,000 from her bank account to make the purchase.
Barbara also changed her explanation for the purchase, indicating that she only planned to buy three firearms, but when she saw six that she liked, she claimed that the pawnshop clerk suggested that she buy all six and return three of them.
Claims Customer’s Idea
She told the agent that the customer at the pawnshop had approached her at the sales counter and offered to sell her the .357 Magnum, and she claimed that clerk at the pawnshop told her that it would be fine to arrange a private sale inside the store.
The pawnshop, however, did not allow customers to arrange private sales inside the store, and the clerk at the pawnshop said he did not tell Barbara otherwise.
Barbara also variously indicated that she had stored the guns in the trunk of her car and in the shed on her property. She initially told the ATF agent that she returned home on August 18, put the firearms in her shed, and then drove to another town. When she returned home later that day, the lock on the shed had been broken and the guns had been stolen.
When the agent noted that she had not filed the police report until after one of the guns had been recovered in New Jersey, she said that it took her a day or two to obtain the necessary paperwork and go to the Sheriff’s Office.
He then noted that several weeks had passed before she filed the report, upon which she claimed that she had stayed in the other town until September 3 and discovered the theft when she returned home. Although Barbara claimed to have discovered the alleged theft of the guns at least by September 3, she did not file a police report until about 21 days later.
In 2009, a federal grand jury indicted Barbara and her brother on two counts: (1) making false representations regarding information that was required to be maintained in the records of a federal firearms licensee, in violation of 18 U.S.C. Sections 924(a)(1)(A), 2; and (2) making false representations to the licensee that were likely to deceive it as to facts material to a sale of firearms, in violation of 18 U.S.C. Sections 922(a)(6), 2. Specifically, the indictment alleged that Barbara and her brother falsely represented that she was the actual purchaser of the five pistols obtained from the pawnshop.
At trial, in addition to all of those facts, the government presented testimony from the pawnshop clerk that it was unusual to sell five guns in a single transaction and from the ATF agent that a gun with a laser sight was not a standard home protection gun.
Barbara asked the court to include among the jury instructions the sentence, “A reasonable doubt may arise not only from the evidence produced at trial, but from a lack of evidence, for the law does not impose on the defendant the duty of producing any evidence.”
The court found that the possibility of reasonable doubt arising from a lack of evidence was sufficiently covered and clearly implied by the pattern charge that it intended to give the jury. Accordingly, it declined to add Barbara’s proposed instruction.
During its closing argument, the government contended that when Barbara purchased the five guns from the pawnshop, she knew that she was not the actual buyer because she was going to transfer the guns to her brother, who was a convicted felon and not able to buy the guns himself.
When it reviewed the Form 4473 for the jury, the government argued that to question 11a, “Are you the actual buyer?” Barbara wrote “yes”. The form explained, using the word “warning,” that “You are not the actual buyer if you are acquiring the firearm on behalf of another person.”
The government argued that when she acquired the guns on behalf of her brother and wrote yes on the form, she violated the law.
Barbara’s counsel argued at length during the closing argument that the government had failed to present sufficient evidence to support its case. The court then gave the jury instructions regarding the government’s burden of proof.
It told the jurors that it was their duty to decide whether the government had proved beyond a reasonable doubt the specific facts necessary to find the defendants guilty of the crimes charged in the indictment.
The jury was to make its decision only on the basis of the testimony and other evidence presented during the trial and must not be influenced in any way by either sympathy or prejudice for or against the defendants or the government.
The court told the jury that the indictment or formal charge against the defendants was not evidence of guilt. Indeed, the defendants were presumed by the law to be innocent.
The law did not require the defendants to prove their innocence or to produce any evidence at all; and that they were not to consider the defendants’ decision not to testify in any way during their deliberations. The government had the burden of proving the defendants guilty beyond a reasonable doubt, and if it failed to do so, the jury must find the defendants not guilty.
The court went on to note that although the government’s burden of proof was a strict or heavy burden, it was not necessary that the defendants’ guilt be proved beyond all possible doubt. It is only required that the government’s proof exclude any reasonable doubt concerning the defendants’ guilt. A reasonable doubt is a real doubt, based upon reason and common sense after careful and impartial consideration of all the evidence in the case.
Proof beyond a reasonable doubt, said the court, therefore, was proof of such a convincing character that a juror would be willing to rely and act upon it without hesitation in the most important of his or her own affairs.
If the jurors were convinced that the defendants had been proved guilty beyond a reasonable doubt, they should say so. If they were not convinced, they should say so.
The court also reminded the jury that the defendants were “on trial only for those specific offenses charged in the indictment.”
The jury found Barbara and her brother guilty on both counts. Barbara faced a statutory maximum of 5 years’ imprisonment, as well as guideline ranges of 15 to 21 months’ imprisonment and 2 to 3 years’ supervised release.
Barbara argued that a sentence of 12 months’ home detention would be appropriate in light of her life history and the circumstances of the offense. She claimed she had been a law abiding and productive citizen for her entire life, never having received even a traffic citation before the gun offense. She had complied with all of the conditions of her pretrial supervision.
Furthermore, she said she had supported her family over the course of her life, had worked in the same demanding job for nearly 20 years, and had no history of substance abuse. In light of these characteristics, she claimed she was unlikely to recidivate.
She added that incarceration was not mandated in all situations and should not be the default choice.
At the sentencing hearing, the government argued that Barbara had already gotten a break when the probation officer in the pre-sentencing investigation declined to apply the firearms trafficking enhancement, and that straw purchasers of firearms “by definition” have no criminal history and “almost always” are family members or girlfriends.
Such women often unwittingly agree to participate in the straw purchases, but Barbara, said the government, appeared to know “what she was doing,” because she made both the pawnshop purchase and the private purchase of the .357 Magnum.
The government added that six firearms “is an awful lot,” and that Barbara had falsely reported to the police that the firearms had been stolen.
The government agreed that Barbara was not a likely recidivist, but it contended that she understood the potential “aftermath” of guns because she had worked for many years at a hospital in a high crime area.
Her history and characteristics did not weigh in favor of a strong sentence, but the seriousness of the offense warranted some “meaningful punishment.”
The court found that a guideline sentence would be appropriate. It sentenced Barbara to 15 months’ imprisonment, 2 years’ supervised release, and 100 hours of community service. It stated that it believed the sentence to be just and fair and that it had considered all of the sentencing factors.
Barbara then appealed her conviction and 15-month sentence to the U.S. Court of Appeals for the Eleventh Circuit.
Barbara argued that she was entitled to an additional jury instruction stating specifically that reasonable doubt could arise from a lack of evidence and that the imposition of a term of imprisonment was unreasonable under the circumstances.