Virginia Lawyers Weekly VA Lawyers Weekly
A Roanoke U.S. District Court will not dismiss an indictment charging defendant with making a false and fictitious written statement to a firearms dealer, for allegedly representing he was the “actual buyer,” when he was purchasing the firearm for another; the court rejects defendant’s claim that the “actual buyer” question on the federal form is not statutorily required, but is a substantive requirement added by the Bureau of Alcohol, Tobacco, Firearms and Explosives.
Defendant argues that the “actual buyer” question on Form 4473 is not required by Chapter 44 of Title 18 of the U.S. Code. He argues the question constitutes a substantive requirement created by the ATF, and that the ATF failed to comply with the notice and comment procedures required under the Administrative Procedure Act. The court concludes his argument are without merit.
While the 4th Circuit has not had the opportunity to address whether there is statutory authority for the “actual buyer” question on Form 4473, the same argument has been addressed and rejected by two of its sister circuits, in iiiU.S. v. Nelson,iii 221 F.3d 1206 (11th Cir. 2000), and in iiiU.S. v. Soto,iii 539 F.3d 191 (3rd Cir. 2008). This court finds the reasoning of the 11th and 3rd Circuits persuasive. The court concludes the identity of the actual buyer is required by Chapter 44 of Title 18 and thus the act of falsifying the identity of the actual buyer on Form 4473 constitutes a violation of 18 U.S.C. § 924(a)(1)(A).
Defendant’s argument under the APA also is without merit. For the reasons stated in Nelson, the court likewise concludes the statutes set forth in Chapter 44 of Title 18 clearly criminalize the conduct that is alleged to have occurred in this case; that the defendant is not charged with violating merely an unpublished agency interpretation of the statutes; and that defendant’s argument under the APA is without merit.
Motion to dismiss the indictment denied.
U.S. v. Abramski (Conrad) (Published) No. 7:10cr00068, April 25, 2011; USDC at Roanoke, Va. VLW 011-3-214, 7 pp.
