Tuesday, May 29, 2012

U.S. v. Johnson, No. 11-10290 (5-29-12) (Graber with Schroeder and O'Scannlain).
This case involves Form 4473.  What is it?  It is an ATF form that asks the buyer whether he is indeed the purchaser.  It is to stop "straw purchasers."  Here, the  defendant made two separate purchases of firearms:  25 Polish AK-47 and then later 14 additional AK-47s and 20 Yugoslavian AK-47s.  In both purchases, he filled out Form 4473 and stated that he was, indeed, the intended purchaser.  Almost immediately after the second purchase, he delivered the firearms to another person.  That person was soon stopped, and agreed to cooperate.  He pointed to defendant as a straw purchaser.  Convicted at trial, defendant argues on appeal that the government should have had to prove under Neder and materiality that the ultimate purchaser was an unlawful purchaser.  The false statement had to matter.  The 9th was unconvinced.  It reasoned that the form specifically asked for this information for a purpose, and that the intent was that the buyer say whether he was buying the guns for himself.  The  9th joins with the 8th on this, and aligns with other circuits as well.  The 9th also rejected the argument that the information on Form 4473 had to be given to the jury.  It is a legal question whether the information on the form had to be kept by the firearm licensed dealer, and the question on the form met the requirements of 924(a)(1)(A).  Lastly, the 9th found that a perjury instruction need not have been given for a false statement the cooperating witness made to law enforcement.


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