96 Cal. Daily Op. Serv. 3958, 96 Daily Journal D.A.R. 6451 United States of America v. Mary Peggy Moore, United States of America v. Lee Roy Wiley

84 F.3d 1567, 96 Daily Journal DAR 6451, 96 Cal. Daily Op. Serv. 3958, 1996 U.S. App. LEXIS 13220

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 4, 1996
• Docket: 94-30453, 94-30454
• Status: Published

Opinions

Opinion by Judge TASHIMA; Concurrence by Judge REINHARDT; Dissent by Judge TROTT.

TASHIMA, Circuit Judge:

These are consolidated appeals by appellants Mary Peggy Moore (“Moore”) and Lee Roy Wiley (“Wiley”) (collectively “defendants”) from their convictions for making a false statement in connection with the purchase of a firearm under the Gun Control Act of 1968 (“GCA”), 18 U.S.C. § 922(a)(6), and for conspiracy, 18 U.S.C. § 371, to violate the GCA Moore also appeals from her sentence. Defendants contend, inter alia, that the government’s proof was insufficient as a matter of law to constitute a crime. We agree and therefore reverse their convictions.

BACKGROUND AND FACTS

On January 20, 1994, Bobby Moore (“Bobby”), a juvenile, shot and killed an Idaho police officer with a .25 caliber handgun. The officer’s death generated a large amount of publicity. The publicity resulted in a commitment to investigate and charge, if possible, those individuals responsible for providing Bobby with the weapon.

On September 2, 1993, Bobby, and a friend entered the Little Bit of Everything Pawnshop, a federally-licensed firearms dealer, to “look around.” Bobby was 14 years of age and his friend was 15. While browsing through the merchandise, the boys’ attention focused on a .25 caliber handgun in the weapons section of the store. The store clerk approached the boys and asked them to depart the premises, as juveniles were neither permitted in the store nor permitted to purchase firearms without their parents.

Undaunted, Bobby set about to obtain the handgun. Bobby first went to Moore, his mother, and asked her to purchase the weapon for him. It was not unlawful in the State of Idaho for a parent to purchase a handgun for her minor child. Idaho Code § 18-3302A (1990). -Moore refused to purchase the weapon herself for Bobby. She said that she did not want her name on the papers, he could hurt somebody, and she didn’t think he needed the gun. Moore, however, agreed to pawn Bobby’s “boom box” for him, so that he would have the money available to purchase a weapon. Moore pawned the radio, and gave Bobby the cash.

The next day, Moore drove Bobby and his friend to Wiley’s residence. Wiley, nicknamed “Grandpa,” was known for his good nature and his reputation for always doing favors for the neighborhood children. The boys convinced Wiley to purchase the weapon for Bobby after Bobby told Wiley he had his mother’s permission and Wiley could “keep the change.” The threesome returned to Moore’s vehicle and she drove to the pawnshop. On the way to the pawnshop, Wiley asked Moore whether the purchase of the gun was alright with her, to which Moore replied that it was fine.

Upon arriving at the pawnshop, Moore remained in the vehicle while Wiley, Bobby and his friend went inside. At the gun counter, Wiley asked to sée the .25 caliber handgun on display. When the clerk inquired as to whom the gun was for, Wiley responded that the gun was for Bobby, but that he was Bobby’s “grandfather” and would keep the gun until Bobby was 21. The clerk inquired as to the whereabouts of Bobby’s mother, to which Bobby responded, “She’s in the car.” The clerk then asked to speak with Bobby’s mother.

Bobby went to the car and asked his mother to come into the shop. Moore stepped into the doorway of the shop, made eye contact with the clerk, and said, “His grandfather is buying the gun for him. He’s going to hold it until he’s 21, and everything is fine with me.”

Here, we must briefly digress to explain relevant information published by the Bureau of Alcohol, Tobacco and Firearms (“BATF”) to inform dealers (and the general public) on how to comply with federal gun laws. The BATF distributes to firearms dealers publications called “Industry Circulars.” One such Circular, effective at the time of this sale, read:

The Gun Control Act of 1968 does not necessarily prohibit a dealer from making a sale to a person who is purchasing a firearm for another person. It makes no difference that the dealer knows that the purchaser will later transfer the firearm to another person, so long as the ultimate recipient is not prohibited from receiving or possessing a firearm.

BATF Industry Circular 79-10, reprinted, in (Your Guide To) FEDERAL FIREARMS REGULATION 1988-89, at 78. The same Circular also informed firearms dealers about the legality of sales involving parent and child: ■

A dealer may lawfully sell a firearm to a parent or guardian who is purchasing it for a minor child. The minor’s subsequent receipt or possession would not violate Federal law even though the law does prohibit a dealer’s direct sale to the underage person.

BATF Industry Circular 79-10. Another part of the BATF publication informs the dealer:

A parent or guardian may purchase firearms and ammunition for a juvenile. GCA age restrictions are intended only to prevent juveniles from acting without their parents’ or guardians’ knowledge.

(Your Guide To) FEDERAL FIREARMS REGULATION 1988-89, at 84.

After Moore’s cameo appearance at the pawnshop, the clerk proceeded with the sale of the firearm. As required by the GCA, the clerk asked Wiley to complete and sign BATF Form 4473 (“BATF Form”). The BATF Form enables the dealer to determine whether the purchaser (the “transferee (buyer)” in the words of the form) is able legally to buy a gun. By signing the form, the buyer acknowledges “that the making of any false statement with respect to the transaction is a crime punishable as a felony.”

On the reverse side of the BATF Form is a section entitled “IMPORTANT NOTICES TO TRANSFEROR (SELLER) AND TRANSFEREE (BUYER),” which reads:

WARNING-The sale or delivery of a firearm by a licensee to an eligible purchaser who is acting as an agent, intermediary or “straw purchaser” for someone whom the licensee knows or has reasonable cause to believe is ineligible to purchase a firearm directly, may result in a violation of the Federal firearms laws.

BATF Form (reverse side).

Wiley filled out the BATF Form and in the space provided stated that he was the “transferee (buyer)” of the weapon. Wiley paid for' the firearm with money ($45.00) provided to him by Bobby and the transaction was completed. Wiley, Bobby and friend then returned to the vehicle where Wiléy gave the firearm, receipt and paperwork to Moore. At some later point, Moore gave the firearm to Bobby.

After the shooting death of the officer, Moore and Wiley were indicted for violation of: (1) 18 U.S.C. § 922(a)(6), knowingly making a false statement to a licensed firearms dealer intended or likely to deceive the dealer with respect to any fact, material to the lawfulness of the sale; and (2) 18 U.S.C. § 371, conspiracy fraudulently to acquire a firearm in violation of 18 U.S.C. §§ 922(a)(6) & (b)(1).

A jury returned guilty verdicts against both defendants on both counts. The court denied defendants’ post-trial motions for, inter alia, judgment of acquittal and a new trial. Both defendants have timely appealed. We have jurisdiction under 28 U.S.C. § 1291.

The government prosecuted Wiley and Moore under,the “straw man”, doctrine, a judicial gloss on the GCA, which prohibits the sale of firearms through third-party intermediaries to persons ineligible under the GCA to purchase firearms themselves.¹ According to the government’s theory, Bobby was the “true purchaser” of the firearm and Wiley was the “straw purchaser” employed in a conspiracy to circumvent the ban on firearms sales to minors under the GCA. To that end, the government maintains, both Wiley and Moore falsely and illegally represented that Wiley, and not Bobby, was the true purchaser of the firearm. The government argues that only Moore herself could have lawfully purchased the gun for Bobby.

This ease presents an issue of first impression. We must determine whether the purchase of a firearm for a minor by a third party acting with parental consent constitutes an illegal “straw man” transaction: Specifically, whether a minor whose parent consents to the purchase of a firearm by a third party is nevertheless ineligible to acquire or possess the weapon. We note some discrepancy in the manner in which the term “straw man” transaction is used. Most courts seemingly use the term to refer only to illegal transactions — those resulting in the transfer of a firearm to a person who is prohibited by law from being a purchaser or possessor. The BATF Form, however, strongly suggests that a “straw man” is an intermediary or agent acting on behalf of any other person, and that straw-man transactions include lawful, as well as unlawful, third-party transactions. We use the term “straw man” throughout this opinion to refer both to lawful and unlawful third-party transactions and, when appropriate, we distinguish between the two categories.

DEFENDANTS’ CONTENTIONS

Defendants contend that the evidence was insufficient as a matter of law to convict them of conspiracy and false statements in connection with the acquisition of a firearm, in violation of 18 U.S.C. §§ 371, 922(a)(6) & 922(b)(1). They argue that, given Moore’s consent, what Wiley and Moore planned to do with the gun was not unlawful under either federal or Idaho law.² Because the object of their “conspiracy” was not a crime, they did not violate 18 U.S.C. § 371. They argue further that, as a matter of law, the government did not prove the element of materiality under § 922(a)(6). Defendants contend that because the sale was not unlawful, any false statements they may have made were not “material to the lawfulness of the sale.”³

I

The false statements provision of the GCA, in relevant part, reads:

It shall be unlawful—

(6) for any person in connection with the acquisition or attempted acquisition of any firearm ... from a ... licensed dealer ... knowingly to make any false or fictitious oral or written statement ... intended or likely to deceive such ... dealer ... with respect to any fact material to the lawfulness of the sale or other disposition of such firearm....

18 U.S.C. § 922(a)(6) (emphasis added).

Under the government’s' theory of the case, defendants’ oral and written statements were material because they were intended to and did mask an illegal “straw” transaction in violation of § 922(b)(1), which prohibits the sale of a firearm by a licensed dealer to “any individual who the licensee knows or who has reasonable cause to believe is less than eighteen years of age....” The illegal “straw man” transaction theory also underlies the conspiracy charge. Accordingly, if the transaction was not illegal, the statements were not material, and no violation of § 922(a)(6), including the one alleged in the conspiracy charge, could stand. We therefore first examine the question of the alleged illegal “straw man” transaction.

II

The text of the GCA nowhere mentions sales to “straw men” or third-party intermediaries. Nevertheless, in order to effectuate the statute’s purpose, federal courts have banned “straw man” sales when the intended recipient is prohibited from purchasing or possessing the weapon involved. See Perri v. Department of the Treasury, 637 F.2d 1332 (9th Cir.1981).

One purpose of the Act is to “keep firearms away from the persons Congress classified as potentially irresponsible and dangerous.” Barrett v. United States, 423 U.S. 212, 218, 96 S.Ct. 498, 502, 46 L.Ed.2d 450 (1976). Prohibiting sham or “straw-man” purchases serves this purpose. This occurs when a lawful purchaser buys for an unlawful one. This court has said that a dealer who sells a gun knowing, or with reason to know, it is for an unlawful possessor, violates the Act.

Id. at 1336. See also United States v. Howell, 37 F.3d 1197, 1202 (7th Cir.), mandate recalled for limited purpose of permitting appellants to file petitions for rehearing, 37 F.3d 1207 (7th Cir.1994), cert. denied, — U.S.-, 115 S.Ct. 1810, 131 L.Ed.2d 735 (1995); United States v. Straach, 987 F.2d 232, 239 (5th Cir.1993); United States v. Hern, 926 F.2d 764, 768 (8th Cir.1991); United States v. Lawrence, 680 F.2d 1126, 1128 (6th Cir.1982); and United States v. Brooks, 611 F.2d 614, 617 (5th Cir.1980). Although the conduct in these eases found to constitute illegal “straw man” sales varies, all of them involve sales where the intended recipient is either a convicted felon or a nonresident.⁴

There is no reported case in which a minor’s parent has been deemed an illegal “straw” purchaser for the minor. The BATF’s interpretations of the GCA have always acknowledged parental purchases as an exception to the ban on sales to minors. At trial, a BATF agent testified that it is not illegal for a parent to buy a gun for a 14-year-old child with the child’s own money. The agent testified that in doing so, the parent would be required to list his or her name as the “transferee (buyer)” on the BATE Form. This would not be a false statement even if the parent intended immediately to turn over the gun to the child.

Ill

The legislative history of the GCA clearly requires the exception to the ban on firearms sales to minors recognized by the government — the purchase of a firearm for a minor by the minor’s parent. This same legislative history likewise requires an exception to the ban on firearms sales to minors when the purchase is made by a third party with the consent of the minor’s parent. Congress simply did not intend to criminalize acquisition of firearms by minors where the parent knows of and consents to the purchase.

The report of the Senate Judiciary Committee on the GCA listed among the serious national problems addressed by the legislation the acquisition of firearms by “juveniles mthout the knowledge and consent of their parents or guardians_” S.Rep. No. 1097, 90th Cong., 2nd Sess. (1968), reprinted in 1968 U.S.C.C.A.N., 2112, 2114 (emphasis added). The report elaborated:

The clandestine acquisition of firearms by juveniles and minors is a most serious problem facing law enforcement and the citizens of this country. The controls proposed in the title are designed to meet this problem and to substantially curtail it.

Id. at 2167 (emphasis added).

The committee report made clear that Congress did not intend to frustrate all gun acquisitions by minors:

[U]nder the title, a minor or juvenile would not be restricted from owning or learning the proper usage of the firearm, since any firearm which his parent or guardian desired him to have could be obtained for the minor or juvenile by the parent or guardian.⁵

Id.

There is no indication that Congress intended to limit the exception for the purchase of a firearm for a minor exclusively to purchases made by the parent himself or herself. What the legislative history indicates is that Congress considered parental permission sufficient to allow a third party to purchase the firearm on behalf of a minor. The Senate Judiciary Committee’s report clearly indicates that Congress’ purpose was only to prohibit those acquisitions of firearms by minors that are “clandestine” or made “without the knowledge and consent of their parents.”

IV

We do not find the transaction in this case to constitute an illegal “straw man” transaction because to do so would be contrary to legislative intent, as well as “longstanding principles of lenity, which demand resolution of ambiguities in criminal statutes in favor of the defendant....” Hughey v. United States, 495 U.S. 411, 422, 110 S.Ct. 1979, 1985, 109 L.Ed.2d 408 (1990) (citation omitted). As the Court stated in Moskal v. United States, 498 U.S. 103, 111 S.Ct. 461, 112 L.Ed.2d 449 (1990):

[W]e have always reserved lenity for those situations in which a reasonable doubt persists about a statute’s intended scope even after resort to “the language and structure, legislative history, and motivating policies” of the statute.

Id. at 108, 111 S.Ct. at 465 (emphasis in original) (citations omitted). Statutory construction expanding criminal liability beyond the express terms of a statute is disfavored, absent strong indications of legislative purpose. See Crandon v. United States, 494 U.S. 152, 160, 110 S.Ct. 997, 1002, 108 L.Ed.2d 132 (1990) (“Because construction of a criminal statute must be guided by the need for fair warning, it is rare that legislative history or statutory policies will support a construction of a statute broader than that clearly warranted by the téxt.”).

“Straw man” sales are prohibited only to the extent that such prohibition effectuates the purposes of the statute. See Perri, 637 F.2d at 1336; Lawrence, 680 F.2d at 1128 (permitting such straw transactions “would be tantamount to a repeal of those provisions”). The parental permission for the purchase in the case at bench creates a fact pattern as to which neither the text of the statute nor its legislative history clearly discloses that the.GCA was intended to apply. The relevant legislative history, at best, only casts doubt on the materiality of defendants’ representations. The facts of this ease should not be found to constitute an illegal “straw man” transaction.⁶ Instead, the principle of lenity should apply.⁷

V

Having concluded that the transaction in this case was not an illegal “straw man” transaction, the conspiracy charge, which is based on the transaction itself, cannot stand. Neither can the charge that defendants violated § 922(a)(6) by making false statements material to the lawfulness of the sale of a firearm. Because the purchase for the minor by Wiley was lawfully made with the consent of the minor’s parent, Moore, defendants’ false statements were not material to the lawfulness of the sale. As a matter of law, the statements could not have had the capacity to deceive, the firearms dealer into believing an unlawful sale was lawful. Therefore, defendants’ false statements did not violate the statute and cannot serve as the basis for the remaining portion of the conspiracy charge.

CONCLUSION

While the shooting death of the police officer was tragic, and Moore may have exercised extremely poor parental judgment in permitting her son to have the handgun, neither we nor the BATF⁸ can criminalize what Congress did not. We hold that the judicially created “straw man” doctrine prohibits third-party purchases of firearms for persons prohibited by the GCA from purchasing and possessing firearms themselves. We also hold, however, that the doctrine does not prohibit such purchases for a minor if made with the parent’s knowledge and consent.⁹ Because the underlying transaction was not unlawful, defendants did not engage in a conspiracy fraudulently to acquire a firearm in violation of the statute, and defendants’ false statements did not violate the statute, as charged in both the substantive and conspiracy counts.

The convictions of Moore and Wiley are REVERSED.

1 . Categories of persons ineligible to purchase firearms from federally-licensed dealers under the GCA include: (1) minors; (2) persons by whom the purchase or possession of a firearm would violate applicable state law or local ordi-riance; (3) nonresidents of the state in which the firearms dealer is located (except for certain in-person sales); (4) persons under indictment for, or who have been convicted of, a crime punishable by more than one year imprisonment; (5) fugitives from justice; (6) illegal drug users and addicts; (7) mental defectives; (8) illegal aliens; (9) persons who have been dishonorably discharged from the Armed Forces; and (10) persons who have renounced United States citizenship. See 18 U.S.C. § 922(b) & (d).

2 . At the time of the incidents in this case, Idaho law did not prohibit Wiley from transferring the gun to Bobby with his mother’s oral permission. Idaho Code § 18-3302A (1990). Nor did federal law explicitly prohibit such a transfer. However, Idaho Code § 18-3302A was amended in 1994 to require the written permission of a parent, 1994 Idaho Sess. Laws, ch. 369, § 1 at 1186, and Congress, in the Violent Crime Control and Law Enforcement Act of 1994, amended the GCA to make it illegal for anyone under 18 to possess a handgun without the written permission of a parent. Pub.L. No. 103-322, § 110201, 108 Stat. 1796, 2010-11 (1994) (codified at 18 U.S.C. § 922(x)(l)(A) & (3)(A)(iii)).

3 . In light of our disposition of these basic contentions, we need not reach defendants’ numerous other contentions, including the issue of Gaudin error with respect to the element to materiality. See United States v. Gaudin, - U.S. -, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995).

4 . But see United States v. Ortiz-Loya, 777 F.2d 973, 975 (5th Cir.1985) (affirming convictions under § 922(a)(6) of "straw men" who purchased firearms on behalf of an eligible purchaser and possessor who had misplaced his state identification).

5 . In an effort to show that Congress' intent was to curtail the sale of firearms to minors in general, the government cites passing references to juveniles and juvenile crime in the Senate committee report and floor debate. These references ,do not override the significance of the more specific discussions of juveniles in the committee report. The government also cites dicta in case law to the same effect. E.g., Huddleston v. United States, 415 U.S. 814, 827, 94 S.Ct. 1262, 1270, 39 L.Ed.2d 782 (1974) (quoting Senator Tydings’ statement on the Senate floor that Congress intended the statute to "reduce access to handguns for criminals, juveniles, and fugitives"). These cases did not confront the issue of the scope of the statute's ban on sales to juveniles.

6 . Not only did the minor's mother express her consent to the purchase, both to the third-party purchaser, Wiley, and the firearms dealer, but it is uncontested that Wiley transferred the firearm to the minor's mother and not to the minor.

According to the dissent, when Moore purported to consent to the transaction, she was "lying.” (Dissent, pp. 1575-76.) The concept of lying is simply inapplicable to the giving of consent by one person directly to another. If an individual objectively manifests approval to another person, it is irrelevant what unspoken reservations she may have or even what she really believes. Here, Moore manifested her approval directly to the dealer. By doing so, she gave her consent to the sale. See, e.g., Merced County Sheriff’s Employees' Ass’n v. County of Merced, 188 Cal.App.3d 662, 233 Cal.Rptr. 519, 525-26 (1987) ("the existence of mutual assent is determined by an objective rather than a subjective standard, i.e., what a reasonable person would believe from the outward manifestations of consent,” and "the outward manifestations or expressions of consent ... is controlling, i.e., [consent] is gathered from the reasonable meaning of words and the acts of the parties, not from their unexpressed intentions or understanding”) (citation omitted).

Moreover, the dissent ignores a fundamental requirement for an aiding and abetting conviction—that the aider and abettor act "knowingly and intentionally.” Thus, for Moore to have been convicted under the government’s aiding and abetting theory, the jury necessarily had to find that she consented to Bobby’s acquisition of the firearm; otherwise, she could not have acted knowingly and intentionally. The dissent attempts to have it both ways: That Moore did not change her mind and "bed” when she gave her consent so that there was no consent at all; however, that she acted knowingly and intentionally in aiding and abetting the transaction, but that her knowing and intentional actions did not amount to “consent.”

The dissent also postulates the bizarre proposition that Moore’s consent was a "fraud.” (Dissent, pp. 1577-78, 1580.) Assuming it is legally possible to give "fraudulent consent," even the government makes no such contention. As the dissent itself points out (Dissent, pp. 1576-77), the government’s theory was that Moore aided and abetted Wiley’s straw man purchase. This theory forecloses the possibility that Moore could consent to the transaction at all, much less give fraudulent consent. The novel doctrine of fraudulent consent has been created by the dissent out of whole cloth.

7 . We note two other cases under § 922(a)(6) where the principles of lenity were considered. In Huddleston, 415 U.S. at 831, 94 S.Ct. at 1272, the Court rejected lenity because the text of § 922(a)(6) clearly, applied to the facts of that transaction. In United States v. Anaya, 615 F.Supp. 823, 825-26 (N.D.Ill.1985), the district court rejected lenity because it concluded from a review of the legislative history that the defendant’s misrepresentation was clearly material to the lawfulness of the transaction.

8 . All of the actions the dissent characterizes as "unlawful” are made unlawful only by the BATF and defendants' failure to comply with the BATF Form. The dissent cannot, and does not, cite to any specific statutory language making it a crime for a parent to consent to a third-party acquisition of a firearm for her minor child.

Further, the question of "responsible parenting” is not before us. The GCA does not make irresponsible parenting a crime.

9 . As noted, neither the transaction at issue nor the ultimate possession of the firearm by the minor was unlawful under state law. Thus, we need not, and do not, address the situation where the transaction or possession by the minor is in violation of state law. See 18 U.S.C. § 927 (Congress in the GCA did not intend "to occupy the field .... to the exclusion of the law of any State on the same subject matter, unless there is a direct and positive conflict between such provision and the law of the State so that the two cannot be reconciled or consistently stand together.”).