Reading some of the comments over at SayUncle’s, I thought it would be useful to talk about the actual statute that is currently responsible for Steve Bailey troubles with the feds:
(a) It shall be unlawful —
(6) 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
So straw purchasing basically rests on the fact that it’s considered to be a conspiracy to provide false identification and to deceive the dealer as to the lawfulness of a firearm purchase.
Is Steve Bailey guilty of facilitating a straw purchase? If the security guard remained in possession of the revolver after it was purchased, and it was purchased, with the understanding among the party, that he was the actual buyer, and he would keep the firearm, then it would be difficult for the feds to argue that the buyer made a false statement, and that a straw purchase took place. He was the actual buyer.
If Bailey at any point took constructive possession of the firearm, then he would indeed be guilty of facilitating a straw purchase. But constructive possession is different than actual possession. He may have held the gun at some point, but this is not unlawful; you can go shooting with someone out of state and use their firearms, even though you might have actual possession, but it’s your friend’s property. Â There is one thing about this that’s interesting:
Constructive possession is the power and intent of an individual to control a particular item, even though it is not physically in that person’s control. For example, an individual who has the key to a bank safe-deposit box, which contains a piece of jewelry that she owns, is said to be in constructive possession of the jewelry.
So, even if Bailey didn’t keep the firearm, if it was understood among the party that it was “his”, and he retained access to it, he’s admitted to paying for it, that could be construed as a straw purchase of a firearm, even if it never made it’s way back to Massachusetts with Bailey. The New Hampshire security guard was not the actual buyer, and Bailey, as a resident of Massachusetts, is prohibited by federal law from purchasing a firearm in New Hampshire.
Consider what the 9th Circuit had to say about straw purchasing in US v. Moore:
The straw man doctrine, which is nothing more than a long-standing construction of the relevant statutes, holds that a person violates section 922(a)(6) by acting as an intermediary or agent of someone who is ineligible to obtain a firearm from a licensed dealer and making a false statement that enables the ineligible principal to obtain a firearm. As we said in Perri v. Department of the Treasury, 637 F.2d 1332, 1336 (9th Cir. 1981), “sham or `strawman’ ” purchases occur “when a lawful purchaser buys for an unlawful one.” See United States v. Lawrence, 680 F.2d 1126, 1127-28 (6th Cir. 1982) (defendants who purchase firearms for ineligible foreign citizens violate section 922(a)(6)); United States v. Ortiz-Loya, 777 F.2d 973, 978 (5th Cir. 1985) (same). In Lawrence, for example, the Sixth Circuit found determinative of straw man status that, like Wiley, the transferee (1) acted under the direction and control of the ineligible buyer, (2) purchased weapons selected by the ineligible buyer with the buyer’s money, (3) took a commission that showed agency, and (4) had no intention of keeping the gun for himself.
I would imagine the ATF is eager to find out two things. 1) Whether the New Hampshire security guard is in possession of the firearm, indicating that he was the actual buyer, and 2) whether there was any understanding among the parties to the purchase that it was going to be Bailey’s gun.
If the feds decided to prosecute based on the latter, I think it would be unique in the federal court system, since I’ve not found any case similar to it, but it seems like a plausible premise. Think about a girlfriend who buys a firearm for her drug dealing felon boyfriend, but retains actual possession of it. He can still come over and use it any time he wanted to, because he gave her the money, and it’s understood to be his firearm. Would this not be a straw purchase? I would imagine the feds would want to argue that it is.
Given the scrutiny he’s receiving from the feds, I sincerely hope that Steve Bailey will think twice about supporting this minefield of federal and state regulations that ordinary, law abiding gun owners are forced to navigate in order to exercise their constitutional right. Many of these laws can easily, easily trap people with no criminal intent.  Maybe these folks want it to be risky and legally hazardous to purchase and own guns, but if that’s the case, they should plainly say so. They should stop trying to sell the public on the idea that they want to control crime, and admit to desiring to make criminals out of otherwise law abiding people who participate in activities they find socially distasteful.
