Why legally Conspiracy to defraud the united states government and straw purchasing are inherently linked

Currently people are generally being charged under 18 U.S.C. § 922 (a)(6); 922 (g)(4); 924 (a)(2); 932 and 924 (a)(1)(A).

18 U.S.C. § 922 (a)(6) reads:
     for any person in connection with the acquisition or attempted acquisition of any firearm or ammunition from a licensed importer, licensed manufacturer, licensed dealer, or licensed collector, knowingly to make any false or fictitious oral or written statement or to furnish or exhibit any false, fictitious, or misrepresented identification, intended or likely to deceive such importer, manufacturer, dealer, or collector with respect to any fact material to the lawfulness of the sale or other disposition of such firearm or ammunition under the provisions of this chapter.

18 U.S.C. § 924 (a)(1)(A) reads:
    Except as otherwise provided in this subsection, subsection (b), (c), (f), or (p) of this section, or in section 929, whoever-- knowingly makes any false statement or representation with respect to the information required by this chapter to be kept in the records of a person licensed under this chapter or in applying for any license or exemption or relief from disability under the provisions of this chapter.

18 U.S.C. § 924 (a)(2) reads:
     Whoever knowingly violates subsection (a)(6), (h), (i), (j), or (o) of section 922 shall be fined as               provided in this title, imprisoned not more than 10 years, or both.

18 U.S.C. § 922 (g)(4) reads:
     It shall be unlawful for any person--
     who has been adjudicated as a mental defective or who has been committed to a mental institution.





It is well known that "one of the hallmarks of the criminal injustice system is overcharging by prosecutors. They routinely charge defendants with far more than they can prove because that puts maximum pressure on the person to cop a plea. Quoting Ted Rohrlich's "High-Profile Losses Tarnish Reputation of D.A.’s Office" in the L.A. TIMES, on Mar. 6, 1994, at 1; “[e]lected district attorneys may have gotten carried away by emotions or politics and charged defendants with more crimes than they could prove”—a practice the article describes as “overcharging”.
     see Graham, Kyle, Overcharging (March 1, 2013). Ohio State Journal of Criminal Law, Vol. 11, No. 1, 2014, Santa Clara Univ. Legal Studies Research Paper No. 7-13, Available at SSRN: https://ssrn.com/abstract=2227193 or http://dx.doi.org/10.2139/ssrn.2227193

Given this practice federal prosecutors have adopted, it seems that through use of overcharging and charging facially duplicitous charges, they are able to maintain their high 90% conviction rate. Defendants are forced to take a plea bargain in exchange for a guilty plea as their counsel advises them that going to trial and prevailing is much more difficult than taking a plea. Reports also indicate that prosecutors do not take cases on until they believe that they have all of the elements to prove at least one or two of the charges.


Specifically, given this tendency to overcharge, it is interesting how the federal offenses of false statements in connection with acquisition of a firearm found at 18 U.S.C. § 922 (a)(6) and the newly codified straw purchase statute found at 18 U.S.C. § 932 are not charged together with the sibling statute of conspiracy to commit any offense against the the United States found at 18 U.S.C. § 371. If prosecutors' technique are to be selective about what cases they choose to prosecute and by having a few charges where they know the defendant met all of the elements, this paper begs the question of why do prosecutors not charge conspiracy to commit any offense against the united states. 

Firstly it is important to understand the elements of defrauding the United States. The definition of "defraud" has been established by the Supreme Court in Hass v. Henkel, 216 U.S. 462 (1910), and Hammerschmidt v. United States, 265 U.S. 182 (1924).

In Hass the Court opined that the statute was written broadly enough that it included any conspiracy for the purpose of impairing, obstructing or defeating the lawful function of any department of government (which includes today's BATFE). Any conspiracy which is calculated to obstruct or impair its efficiency and destroy the value of its operation and reports as fair, impartial and reasonably accurate, would be to defraud the United States by depriving it of its lawful right and duty of promulgating or diffusing the information so officially acquired in the way and at the time required by law or departmental regulation.


In Hammerschmidt, the court further defined "defraud" as follows:
     To conspire to defraud the United States means primarily to cheat it out of property or money, but it can also mean to interfere with or obstruct its lawful governmental functions by deceit, trickery, or by means that are dishonest. It is not necessary that the government shall incur property or pecuniary loss, but only that its legitimate official actions and purposes were defeated by misrepresentation, chicane, or the overreaching the offices of those charged with carrying out the governmental intention.


The word "defraud" within 18 U.S.C. § 371 not only covers financial or property loss through use of deceit but also is intended to protect the integrity of the United States and its agencies and policies. United States v. Burgin, 621 F.2d 1352, 1356 (5th Cir.), cert. denied, 449 U.S. 1015 (1980). Therefore if a straw buyer and straw purchaser, have engaged in dishonest practices in connection with a program (FFLs) administered by an agency of the Government (BATFE), it shall constitute a fraud on the United States under Section 371. see United States v. Gallup, 812 F.2d 1271, 1276 (10th Cir. 1987).

To the elements of fraud under section 371, requires that (1) at least two people entered into an agreement to obstruct a lawful function of the government (2) by deceitful or dishonest means, and (3) an overt act by at least one of the co-conspirators in furtherance of the agreement. See United States v. Meredith, 685 F.3d 814, 822 (9th Cir. 2012); ​United States v. Munoz-Franco, 487 F.3d 25, 45 (1st Cir. 2007). 

So in relation to straw purchases, the elements for defrauding the united states are inherently present as there is no such thing as an accidental straw purchase. To better understand why, it is important to see this through the lens of 18 U.S.C. § 922 (a)(6) and the newer codified straw purchase statute under the BSCA; 18 U.S.C. § 432.

18 U.S.C. § 922 (a)(6) reads
..... for 1) any person in connection with the acquisition of any firearm or ammunition from a licensed dealer, 2) knowingly to make any 3) false or fictitious oral or written statement or to furnish or exhibit any false, fictitious, or misrepresented identification, 4) intended or likely to deceive such dealer with respect to any 5) fact material to the lawfulness of the sale or other disposition of such firearm or ammunition.

On the form 4473 BATFE further clarifies in 21 (a): that a gift is not bona fide if another person offered or gave the person completing this form money, service(s), or item(s) of value to acquire the firearm for them, or if the other person is prohibited by law from receiving or possessing the firearm. 

Therefore per BATFE there is no such thing as an accidental straw purchase. The ATF deems that all parties are responsible for reading and understanding the definitions enumerated in the 4473. The ATF and FFLs are very strict on these definitions. If the parties after reading everything, still have questions, they should ask their FFLs for advice about how to purchase firearms in accordance with their state and federal laws.


For the actual transferee/buyer question, the law clearly spells out what is a bona fide gift and what is a exchange of money or pecuniary gain.  One cannot accidentally be a straw buyer as the FFLs an the 4473 ask about actual buyer therefore ensuring the buyer legally knows that any offer to purchase a firearm on behalf of someone else is foreclosed by law.  As defined, only one party needs to take any action in furtherance of the conspiracy. 


Even if someone were to offer a gifter money in exchange for a firearm because said gifter did not have sufficient funds, then the ATF and FFLs would require that the gift recipient and gifter come in together and the recipient who is providing the money must submit to the background check even if the gifter did offer them the gift out a good faith. Or as many FFLs would propose, that the recipient put money on a gift card and then give that gift card to the gifter who later gives it to the recipient on their birthday who then goes to the FFL and buys the money with the gift card and under their own name even if the gifter intended it for it to be a gift.


Coming back to the how the ATF does not consider there to be any such thing as an accidental straw purchase, federal prosecutors could easily make a case for general conspiracy under section 371.




Case law that has addressed this issue

United States v. Currier, 621 F.2d 7, 10 (1st Cir. 1980), stated that section 922(a)(6) "does not require a showing that appellant 'knowingly' violated the law; it simply requires proof that appellant 'knowingly' made a false statement."
(2) The definition of "knowingly" is different from the customary definition of "knowingly" for other types of offenses. It comes from United States v. Wright, 537 F.2d 1144, 1145 (1st Cir. 1976), a case arising under 18 U.S.C. § 922(a)

United States v. Santiago-Fraticelli, 730 F.2d 828, 831 (1st Cir. 1984), emphasized that section 922(a)(6)'s scope is "not limited to situations in which an accused knew he was lying." When a person recklessly fails to ascertain the meaning of the questions contained in Form 4473, and simply answers the questions without regard to whether the answers are truthful,  he is acting "knowingly" for purposes of this section. 

For purposes of the 5250 federal prohibitor, this would entail finding that defendant was responsible for reading the back of the 4473 and even possibly researching what kind of prohibition a 5250 hold triggers both statewide and federally. The defendant may also be required to due their due diligence in researching the difference between a certification review hearing and just the mere beginnings of a 14 day hold as the cert hearing is the triggering event.

(3) Section 922 does not require proof that the transaction was in interstate commerce. see Scarborough v. United States, 431 U.S. 563 (1977). The requirement of a transaction with a licensed dealer is sufficient. Those dealers' general involvement with interstate commerce is ample to justify federal regulation of even intrastate sales. see United States v. Crandall, 453 F.2d 1216, 1217 (1st Cir. 1972).


(4) The definition of "material" is defined in United States v. Arcadipane, 41 F.3d 1, 7 (1st Cir. 1994).



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