No. 96-9227 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 MARY PEGGY MOORE AND LEE ROY WILEY, PETITIONERS v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION WALTER DELLINGER Acting Solicitor General JOHN C. KEENEY Acting Assistant Attorney General J. DOUGLAS WILSON Attorney Department of Justice Washington, D.C. 20530-0001 (202) 514 - 2217 ---------------------------------------- Page Break ---------------------------------------- QUESTION PRESENTED 1. Whether petitioners violated 18 U.S.C. 922(a) (6), which prohibits making a materially false statement when purchasing a firearm, by falsely representing that petitioner Wiley was the purchaser of the firearm when in fact petitioner Moore's minor son was the true purchaser. 2. Whether the district court committed reversible error in instructing the jury on the materiality element of 18 U.S.C. 922(a) (6). (I) ---------------------------------------- Page Break ---------------------------------------- IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 No. 96-9227 MARY PEGGY MOORE AND LEE ROY WILEY, PETITIONERS v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION OPINION BELOW The opinion of the court of appeals sitting en banc (Pet. App. B1-B17) is reported at 109 F.3d 1456. The panel opinion of the court of appeals (Pet. App. A1-A16) is reported at 84 F.3d 1567. 1 JURISDICTION The judgment of the court of appeals was entered on March 31, 1997. The petition for a writ of certiorari was filed on June 1, 1997. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). ___________________(footnotes) 1 In referring to the court of appeals' opinions, we have cited the relevant appendix and the page number that appears in the upper-right hand corner of the page. ---------------------------------------- Page Break ---------------------------------------- 2 STATEMENT Following a jury trial in the United States District Court for the District of Idaho, petitioners were convicted of making a false statement in connection with the purchase of a firearm, in violation of 18 U.S.C. 922(a) (6), and of conspiracy to commit that offense, in violation of 18 U.S.C. 371. Petitioner Moore was sentenced to 16 months' imprisonment, to be followed by three years' supervised release. Petitioner Wiley was sentenced to four months' home confinement, to be followed by three years' supervised release, and was ordered to perform 200 hours of community service. The court of appeals reversed. Pet. App. A1- A16. The court of appeals then granted the government's petition for rehearing en banc, and an en banc panel of the court of appeals affirmed petitioners' convictions. Pet. App. B1-B17. 1. Bobby Moore, petitioner Moore's 14-year-old son, wished to purchase a .25 caliber handgun from a pawnshop. Because it is illegal under federal law for a minor to purchase a firearm, see 18 U.S.C. 922(b)(l), Bobby asked his mother to buy the gun for him. She refused, stating that she did not want her name on the papers required to purchase the gun, that she thought Bobby might hurt someone, and that she did not think that Bobby needed a gun. After an argument, however, Moore agreed to pawn Bobby's CD player for him to obtain funds to buy the gun. She told him that he would have to find someone else to purchase the gun. Moore pawned the stereo and gave Bobby the proceeds. Pet. App. B4-B5. The next day, Moore drove Bobby to petitioner Wiley's ---------------------------------------- Page Break ---------------------------------------- 3 residence. Bobby convinced Wiley, a neighbor who often did favors for local children, to purchase the handgun by telling Wiley that he had his mother's permission to buy the gun and by promising Wiley that he could "keep the change" from the purchase. Moore then drove Wiley and Bobby to the pawnshop. During the drive, Wiley asked Moore if it was all right to purchase the gun, and Moore replied, that it was fine. Pet. App. B5 . At the pawnshop, Moore remained in the car while Wiley and Bobby went inside. When Wiley asked to see the handgun, the clerk asked for whom the gun was being purchased. Wiley replied that the gun was for Bobby, but he then falsely stated that he was Bobby's grandfather and would keep the gun until Bobby was 21 years old. The clerk then asked to see Bobby's mother. At Bobby's request, Moore came to the door of the shop and said to the clerk, "His grandfather is buying the gun for him. He's going to hold it until he's 21, and everything is fine with me." The clerk then asked Wiley to complete Bureau of Alcohol, Tobacco and Firearms Form 4473, which is used to record the purchaser of a firearm and determine the lawfulness of the purchase. On that form, Wiley stated that he was the "transferee (buyer)" of the weapon. He then paid for the handgun with money provided by Bobby. After obtaining the gun, Wiley returned to the car and gave the firearm, receipt, and paperwork to Moore. Moore later gave the firearm to Bobby. About for months later, ---------------------------------------- Page Break ---------------------------------------- 4 Bobby used the handgun to murder police officer Wade Feldner. Pet. App. B5. 2. Petitioners were indicted on one count of violating 18 U.S.C. 922(a)(6), which prohibits knowingly making to a licensed firearms dealer a false statement intended or likely to deceive the dealer as to any fact material to the lawfulness of the sale of a firearm, and on one count of conspiring to commit that offense, in violation of 18 U.S.C. 371. At trial, the jury was instructed that it had to find that Bobby was the true purchaser of the firearm in order to convict petitioners. The instructions required the jury to determine whether Wiley served as a "straw man" who allowed Bobby to circumvent the prohibition on a minor's purchase of a firearm and whether Moore aided and abetted Wiley's material false statements. Pet. App. B6. As required by Section 922(a) (6) , the district court informed the jury that, to convict, it must find that, in connection with the purchase of the firearm, petitioners made a false statement that "was intended or likely to deceive the firearms dealer with respect to a fact material to the lawfulness of the sale." Pet. App. B9. The district court then instructed the jury that it should find the materiality element satisfied if it found that the government had established beyond a reasonable doubt that Bobby Moore "was the true purchaser of the handgun and that Lee Roy Wiley was not." Pet. App. B9. Petitioners did not object to those instructions; in fact, Wiley withdrew his request for an instruction that would have required the jury to find that ---------------------------------------- Page Break ---------------------------------------- 5 a false statement was material if "it is relevant and capable of influencing" the firearms dealer. See Pet. App. B10. During deliberations, the jury sent the court a noting asking whether, to satisfy the materiality element, it must find that the false statement was both "intended" and "likely to deceive" the firearms dealer. Pet. App. B10. The district court responded that the jury must find that the government had proved beyond a reasonable doubt "that the defendant intended his or her statement to deceive a firearms dealer and that the alleged statement was of a nature material to the lawfulness of the sale and the alleged statement was of a nature which would deceive the dealer or likely deceive the dealer." Pet. App. B11. 3. A divided panel of the court of appeals reversed the convictions. Pet. App. A1-A16. The majority held that Wiley's statements on ATF Form 4473 and to the pawnshop clerk were not material because, in enacting Section 922(a) (6) , Congress intended to prohibit the acquisition of firearms by minors only without the knowledge and consent of their parents. Pet. App. A4-A5. In this case, according to the majority, "[b]ecause the purchase for the minor by Wiley was lawfully made with the consent of the minor's parent, Moore, [petitioners'] 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." Pet. App. A6. Judge Trott dissented, pointing out that Bobby lacked legal ---------------------------------------- Page Break ---------------------------------------- 6 authority to purchase the handgun; that "Lee Roy Wiley had no lawful authority to purchase this firearm for Bobby"; and that Wiley falsely stated on ATF Form 4473 that he was the buyer of the firearm "when the buyer was in fact the ineligible Bobby Moore." Pet. App. A8-A12. 4. On the government's petition, the court agreed to rehear the case before an en bane panel. By an 8-3 vote, that panel affirmed petitioners' convictions. Pet. App. B1-B17. The majority held that the jury's verdict established that Bobby Moore was the true purchaser of the firearm; that Wiley therefore made a false statement on ATF Form 4473 when he listed himself as the buyer; and that Moore aided and abetted that false statement by falsely stating to the pawnshop owner that Wiley was Bobby Moore's grandfather and that Wiley would keep the firearm until Bobby was 21. Pet. App. B7-B8. The court also held that the district court's instructions on materiality had not removed that element from the jury in violation of this Court's decision in United States v. Gaudin, 115 S. Ct. 2310 (1995). The court noted that, in instructing the jury, the district court had listed materiality among the elements that the government must prove beyond a reasonable doubt to establish a violation of Section 922(a) (6). In addition, the court of appeals found that the district court's response to the jury's note made clear that the question of materiality was for the jury to decide. Pet. App. B9-B11. ---------------------------------------- Page Break ---------------------------------------- 7 ARGUMENT 1. Petitioners contend (Pet. 12-25) that their conduct did not violate 18 U.S.C. 922(a) (6). In particular, they assert that Wiley's purchase of the firearm did not violate the statute because Congress did not intend to prohibit purchases of firearms by minors with their parents' consent. The court of appeals correctly rejected that contention, and its decision does not conflict with any decision of this Court or of another court of appeals. Review is therefore unwarranted. a. In 18 U.S.C. 922(a) (6), Congress made it a federal offense 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. Under that provision, "any false statement with respect to the eligibility of a person to obtain a firearm from a licensed dealer" is a crime. Huddleston v. United States, 415 U.S. 814, 825 (1974) (emphasis added); see also United States v. Hernandez, 913 F.2d 1506, 1513 (10th Cir. 1990) ("[i]ntentionally providing false information on an ATF Form 4473 constitutes a violation of 922(a)(6)"), cert. denied, 499 U.S. 908 (1991); United States v. Buck 548 F.2d 871, 876 (9th Cir.) (unless name, age, and place of residence of buyer are correctly recorded, "the sale is ---------------------------------------- Page Break ---------------------------------------- 8 illegal and any misstatement with respect thereto is clearly a misrepresentation of a material fact") , cert. denied, 434 U.S. 890 (1977). Congress has also expressly barred minors from purchasing firearms. In 18 U.S.C. 922(b) (l), Congress made it illegal for a licensed dealer to sell "any firearm or ammunition to any individual who the licensee knows or has reasonable cause to believe is less than eighteen years of age." In sum, a false statement that allows a minor to purchase a firearm is "material to the lawfulness of the sale" and plainly violates Section 922(a) (6). In this case, the jury found that Bobby Moore, a 14-year-old minor, was the purchaser of the firearm. Bobby supplied the money to purchase the firearm, enlisted Wiley to make the purchase, and obtained possession of the firearm shortly after the purchase. In addition, Wiley falsely stated on Form 4473 that he was the "transferee (buyer)" of the firearm. Because that statement allowed an ineligible minor to purchase the firearm, Wiley violated the plain language of the statute. Moore aided and abetted that false statement by falsely telling the store clerk that Wiley was Bobby's grandfather and that Wiley would keep the firearm until Bobby turned 21. Accordingly, the court of appeals correctly affirmed their convictions. b. Petitioners concede (Pet. 16) that "a child may not acquire a gun on his own by directly purchasing it from a dealer," but nonetheless contend (Pet. 15-25) that no violation of Section 922 (a) (6) occurred here because, as suggested in the ---------------------------------------- Page Break ---------------------------------------- 9 legislative history of the Gun Control Act of 1968, Congress did not intend to prohibit a child from possessing a firearm with his parent's knowledge and consent. Petitioners assert (Pet. 24-25) that Section 922(a)(6)'s prohibition on purchases by "straw men" is "a judicially-created gloss on the Gun Control Act of 1968 -- it imposes liability where there is none under a plain reading of the statute," and that "'straw man' liability should be limited to those sales which violate the purposes of the statute." 2 As an initial matter, the "'straw man' doctrine" is not merely a "judicial gloss" on the statute. Instead, a "'straw man' purchase" is a short-hand description for a transaction that the statute expressly forbids: any false statement made for the purpose of allowing an ineligible purchaser to obtain a firearm. See Huddleston," 415 U.S. at 825. Because the statute expressly prohibits such transactions, resort to the legislative history is not necessary to determine the scope of the statute. See Rodriquez v. United States, 480 U.S. 522, 526 (1987) (where language of statute is clear, "there is no occasion to examine ___________________(footnotes) 2 More broadly, without citation of authority, petitioners assert (Pet. 13-14) that ATF Form 4473 does not require the listing of the "true" purchaser, only the name of the person who actually hands the money to the firearms dealer, and that Wiley's statement on Form 4473 was therefore not false. Acceptance of that contention would render the form meaningless, however, and insulate from liability under Section 922 (a) (6) any firearms buyer who makes a straw man purchase for a person who is ineligible to buy or own a firearm. For that reason, even the dissenting judges in the court of appeals agreed that the "straw man" doctrine, which prohibits such transactions using Form 4473, is "proper and useful." Pet. App. B15 (Tashima, J., dissenting); see also Pet. App. B6 (majority opinion) (discussing doctrine and citing cases). ---------------------------------------- Page Break ---------------------------------------- 10 the additional considerations of 'policy' that may have influenced the lawmakers in their formulation of the statute.") (brackets, ellipses, and internal quotation marks omitted); McMillan v. Pennsylvania, 477 U.S. 79, 85 (1986) (the "legis- lature's definition of the elements of the offense is usually dispositive"). Moreover, even if resort to the legislative history were appropriate here, petitioners' convictions would be entirely consistent with the legislative history of the Act. Petitioners point to a passage of the Senate Report stating that, under the Act, "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." S. Rep. No. 1097, 90th Cong., 2d Sess. 79 (1968). Petitioners argue that Moore "consented" to Bobby's purchase of the firearm, and thus that Bobby's ownership of the firearm did not violate the congressional purpose in enacting the statute. That argument fails for several independent reasons. First, as discussed, Moore could not "consent" to a purchase that violates the plain language of the statute. Second, petitioners' position would thwart a primary purpose of the statute: to allow federal authorities to trace the sale and ownership of firearms and thus to frustrate the "clandestine acquisition of firearms by juveniles and minors." Ibid.; see 18 U.S.C. 922 (b) (5); see also Huddleston, 415 U.S. at 824-825 ("[i]nformation drawn from ---------------------------------------- Page Break ---------------------------------------- 11 records kept by dealers was a prime guarantee of the Act's effectiveness"). When a parent buys a firearm for his or her child and accurately completes the appropriate federal form, the statutory purpose has been fulfilled, because the authorities will ordinarily be able to rely on the form to trace the firearm. But when a minor obtains the firearm through an unrelated third party with or without his parents' consent the purchase is "clandestine" because the form does not reveal the true purchaser, and the authorities' ability to trace the firearm may be hindered. Third, petitioners' approach would threaten an additional statutory objective as well. By allowing a minor to obtain a firearm only if the parent buys the firearm first under his or her own name, Congress required such parents to make explicit their personal responsibility for the minor's subsequent use of the gun responsibility that, in this case, petitioner Moore wished to avoid assuming. See Pet. App. B4 (Moore refused to purchase handgun herself because she "didn't want her name on the papers"). Congress intended to enable minors to obtain firearms so that they could learn how to use them responsibly as adults. See S. Rep. No. 1097, supra, at 79 (minors not restricted from "owning, or learning the proper usage of the firearm" when parent buys it for the minor); see also 18 U.S.C. 922 (x) (3) (A) (listing appropriate uses of handguns by juveniles). But Congress did not intend for casual parental acquiescence in a deception perpetrated by an unrelated third party to serve as a substitute ---------------------------------------- Page Break ---------------------------------------- 12 for the formal process that it specifically required. 3 2. Petitioners renew their contention (Pet. 25-31) that the district court's jury instructions on the element of materiality under Section 922(a) (6) removed that element from the jury's consideration in violation of this Court's decision in United States v. Gaudin, 115 S. Ct. 2310 (1995). Because petitioners did not object to the instructions on that element, their contention is reviewed only for plain error. See Johnson v. United States, 117 S. Ct. 1544, 1547 (1997); United States v. Olano, 507 U.S. 725 (1993). Petitioners cannot show that the district court committed any error, however, much less plain error. In Gaudin, which this Court decided after petitioners' trial, the district court specifically told the jury that the question whether a false statement was material "is not submitted to you for your decision but rather is a matter for decision of the court." 115 S. Ct. at 2313. This Court held that, in a prosecution for making a false statement under 18 U.S.C. 1001, the materiality of the statement must be submitted to the jury rather than decided by the trial judge. 115 S. Ct. at 2320; see Johnson, 117 S. Ct. at 1547. As the court of appeals held, that rule has no application ___________________(footnotes) 3 Petitioners also contend (Pet. 15-16) that the purchase was not illegal because Idaho law allowed a firearm to be sold or delivered to a minor with a parent's consent. Petitioners were convicted, however, not of delivering the firearm to Bobby Moore, but of making a false statement that allowed Bobby to purchase a firearm in violation of an express prohibition of federal law. Idaho law is not relevant to their guilt on that offense. ---------------------------------------- Page Break ---------------------------------------- 13 to this case. The district court never instructed the jury that the question of materiality was a question solely for the court; instead, the court specifically submitted the issue of materiality to the jury. In particular, the district court told the jury that one of the elements of Section 922(a) (6) was that the defendant's false statement "was intended or likely to deceive the firearms dealer with respect to a fact material to the lawfulness of the sale." In response to the jury's note, the court repeated that instruction, telling the jury that it had to find beyond a reasonable doubt that "the defendant intended his or her statement to deceive a firearms dealer and that the alleged statement was of a nature material to the lawfulness of the sale and that the alleged statement was of a nature which would deceive the dealer or would likely deceive the dealer." Pet. App. B11. Petitioners contend (Pet. 28), however, that the court told the jury "how to resolve" the question of materiality by informing it that if the government proved that Bobby Moore was the purchaser of the firearm, "then the government has established that Lee Roy Wiley made a material false statement in connection with the purchase of a firearm." That argument is without merit. Nothing in Gaudin bars a court from providing the jury with a definition of materiality appropriate to the offense charged; indeed, the court must inform the jury of the legal standards guiding the decision at issue. See Gaudin, 115 S. Ct. at 2313-2314 (jury must apply "legal standard," as defined by ---------------------------------------- Page Break ---------------------------------------- 14 court, to "historical facts"); United States v. Gomez 87 F.3d 1093, 1097 (9th Cir. 1996) (district court did not remove issue of interstate-commerce nexus from jury in arson case by informing jury that building burned was in interstate commerce). In this case, the district court properly informed the jury that a false statement that allowed an ineligible buyer to purchase a firearm met the definition of materiality. See United States v. Ortiz-Loya, 777 F.2d 973, 979 (5th Cir. 1985) (violation of Section 922(a) (6) when defendant purchased firearm for ineligible foreign citizen); United States v. Lawrence, 680 F.2d 1126, 1127-1128 (6th Cir. 1982) (same); United States v. Buck, 548 F.2d at 876 (any false statement as to name, age, or place of residence is material under Section 922(a) (6); United States v. Gudger, 472 F.2d 566 (5th Cir. 1972) (same); United States v. Crandall, 453 F.2d 1216 (1st Cir. 1972) (same); see also United States v. Klais 68 F.3d 1282 (11th Cir. 1995), cert. denied, 117 S. Ct. 94 (1996). Petitioners contend (Pet. 28-30) that the court's instruction prevented them from presenting their defense that, because Moore consented to the purchase, Wiley's false statements were immaterial. But petitioners were not entitled to a jury instruction preserving that defense because, as discussed above, that defense is invalid as a matter of law. Reduced to its essentials, therefore, petitioners' Gaudin claim merely repeats their contention that they did not violate the statute. Because that claim is without merit, their challenge to ---------------------------------------- Page Break ---------------------------------------- 15 the jury instruction should likewise be rejected. 4 CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. WALTER DELLINGER Acting Solicitor General JOHN C. KEENEY Acting Assistant Attorney General J. DOUGLAS WILSON Attorney AUGUST 1997 ___________________(footnotes) 4 Even if the district court had erred in instructing the jury, petitioners would be unable to show that the error amounted to plain error under Fed. R. Crim. P. 52(b). In particular, the evidence that Bobby Moore was the true purchaser of the firearm was overwhelming, and thus "there is no basis for concluding that the error 'seriously affect[ed] the fairness, integrity, or public reputation of public proceedings.' " Johnson, 117 S. Ct. at 1550 (quoting Olano, 507 U.S. at 736).