Update On The Big Gun Trial In Phoenix
Short version: The defendant was acquitted.
The government, I thought did a reasonably good job of proving that the defendant was dealing without a license, since they tracked 473 gun acquisitions and sales. However, the judge did not believe that the test of "profit motive for livelihood" was met, and entertained a motion from the defense to acquit.
I told the prosecutor that I would have felt a lot more sanguine about the case had the government proved that even one gun was sold to a person in a prohibited category. He sold a bunch to undercover ATF guys, but not one to a convicted felon, illegal alien, etc.
Anyhow, I spent 3 days there, gave my 20 minutes worth of testimony, and the guy got off.
It was an interesting experience anyway. I had never been to U.S. District Court before.
The government, I thought did a reasonably good job of proving that the defendant was dealing without a license, since they tracked 473 gun acquisitions and sales. However, the judge did not believe that the test of "profit motive for livelihood" was met, and entertained a motion from the defense to acquit.
I told the prosecutor that I would have felt a lot more sanguine about the case had the government proved that even one gun was sold to a person in a prohibited category. He sold a bunch to undercover ATF guys, but not one to a convicted felon, illegal alien, etc.
Anyhow, I spent 3 days there, gave my 20 minutes worth of testimony, and the guy got off.
It was an interesting experience anyway. I had never been to U.S. District Court before.
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Sounds to me like the good guys won this one.
If we had educated jurors in this country..even if the case went to the jury, we could break the back of the Beast.0 -
Another case of big brother going after the wrong guy? 0 -
quote:Originally posted by Highball
Sounds to me like the good guys won this one.
If we had educated jurors in this country..even if the case went to the jury, we could break the back of the Beast.
+1 Highball
Perhaps this fellow bought 473 guns that he discovered that he didn't like, and sold them. It's not like the guy bought from a distributor and sold guns outta his car.
The thing that upsets the beast is, it didn't get to TAX this man to death.
GOOD for the accused.0 -
Nunn: David, did this trial [involving a felony charge] have to go through a grand jury first? Joe 0 -
That I don't know. I have zero experience with prosecution at the federal level.
I wouldn't exactly call this fellow a "good guy" either, just not as bad as he could have been.0 -
Not to get too far off base, but how many gun sales by a private individual constitutes a felony here? If I sell 1 or 50 in a year, do I need to start worrying? 0 -
Federal laws pertaining to the sale of firearms are null and void.
Or would be, if the 'Justice System' still operated under the Constitution.
You want to take this guy down...find some reason to do so that IS in agreement with that document. That would be the way to handle it.0 -
the key words are
"profit motive for livelihood"
if you're not making a profit or your liveihood from the sales you should be ok , of course nobody really knows how many are too many0 -
quote:Originally posted by nunn
That I don't know. I have zero experience with prosecution at the federal level.
I wouldn't exactly call this fellow a "good guy" either, just not as bad as he could have been.
OK, just what has he done wrong David? If he is not a "good guy", what have you witnessed him doing wrong? Sounds to me that he isn't selling guns to gang bangers.0 -
As I pointed out, the prosecution made a very good case against him for dealing without a license. The weakness, according to the judge, was the establishment of profit motive. They should have, and did not, subpoena any financial records.
Like it or not, the sales of firearms are regulated in this country, and there are laws. This "dealer," and he was a dealer even if unlicensed, was buying hundreds of guns, and re-selling them at gun shows, where he would rent multiple tables and display 50 or so guns at a time.
As to whether he sold a gun to a "gang-banger," we will never know the answer to that, since the vast majority of his sales were to individuals, and we don't know their status. We know about the guns he sold to ATF agents. I would have liked it better had the agents sent in some confidential informants that were prohibited from owning firearms, and had them make buys. Or, the agents could have presented themselves as convicted felons. Or, an agent could have simply bought a handgun and shown an out-of-state ID card.
Two examples from the trial: The Davis P-32 he bought from me for $39, including shipping, he sold to an undercover agent for $140. There was also a Smith & Wesson he bought for $229, and sold for $375. These sales occurred within only a few days of the acquisitions. Looks like profit motive to me, and since 1968, that sort of activity has required a license. Perhaps if the buy and sell prices of all 473 firearms had been known, the case would have been decided differently.0 -
quote:Originally posted by gskyhawk
the key words are
"profit motive for livelihood"
if you're not making a profit or your liveihood from the sales you should be ok , of course nobody really knows how many are too many
So you're telling me that if I buy a gun for 100.00, come on here, and it bids (beyond my control) to 101.00, that I am violating a law?!?!?!?
It's not my only source of income, but I don't sell things to break even.0 -
quote:Originally posted by nunn
As I pointed out, the prosecution made a very good case against him for dealing without a license. The weakness, according to the judge, was the establishment of profit motive. They should have, and did not, subpoena any financial records.
Like it or not, the sales of firearms are regulated in this country, and there are laws. This "dealer," and he was a dealer even if unlicensed, was buying hundreds of guns, and re-selling them at gun shows, where he would rent multiple tables and display 50 or so guns at a time.
As to whether he sold a gun to a "gang-banger," we will never know the answer to that, since the vast majority of his sales were to individuals, and we don't know their status. We know about the guns he sold to ATF agents. I would have liked it better had the agents sent in some confidential informants that were prohibited from owning firearms, and had them make buys. Or, the agents could have presented themselves as convicted felons. Or, an agent could have simply bought a handgun and shown an out-of-state ID card.
Two examples from the trial: The Davis P-32 he bought from me for $39, including shipping, he sold to an undercover agent for $140. There was also a Smith & Wesson he bought for $229, and sold for $375. These sales occurred within only a few days of the acquisitions. Looks like profit motive to me, and since 1968, that sort of activity has required a license. Perhaps if the buy and sell prices of all 473 firearms had been known, the case would have been decided differently.
David, I appreciate the response. I will comment tomorrow, when my temperment is better. Right now, I am quite angry, and my response would be less than polite.0 -
quote:Originally posted by westkybanded
Not to get too far off base, but how many gun sales by a private individual constitutes a felony here? If I sell 1 or 50 in a year, do I need to start worrying?
No. It's the purchasing of 50 guns in a year that will get you. No problem liquidating a collection. But if you sold 50 guns all at once, ATF will red-flag* you if they find out that you purchased those 50 guns in the recent past. That's 'conducting business in firearms'.
ATF has to suspect intent to profit before they red-flag* your activities, and place you under the microscope. What they are looking for is evidence of buying and can prove profit as the motive for purchasing.
That's where collectors are good to go. They bought their firearms without blatant intent to profit from the purchase.
*The red-flag usually occurs when many firearms are bought where it's apparent that the purchase was intended for re-sale. Usually takes ATF several months to a year of following your actions to come to that conclusion before they'll move on it. Joe0 -
Laws ? Indeed.
Were I sitting on ANY gun case..unless the perp had used a firearm in the commission of a crime...a REAL crime..
"NOT GUILTY".0 -
I wish that the law had in it a statutory number, but it doesn't. It would make it easier if the law required a person to be licensed if he sold more than a certain number of guns within a certain period of time. The test is profit motive, and on that the law is clear. If a person regularly buys and sells firearms for profit, he is required to have a license. Making a living from the activity is not a requirement, only profit motive.
I buy and sell a few guns, for profit. I buy guns that I don't intend to shoot or collect; I intend to re-sell them at the moment that I buy them. I don't sell enough to make a living from it, but I do supplement my income from gun sales. The way I understand the law, I need a FFL to do what I do, and I have one.
Whether you agree or disagree with the actions of the government agents, this little episode should serve as a warning. The ATF is working gun shows, and if they see the same face at show after show, buying and selling, they are apt to focus on him and work up a case. If this is something you do, be careful.0 -
Yea, you sell that many guns, you're a dealer. He's a sleazebag and does nothing but add to the negative image and bad name of all gun people. If you're a good gun person, then it's your duty to get jerks like this off of the street. He broke the law, but got away with it which makes him no different than OJ or all the other lowlifes out there. Sounds like you just need a good lawyer on the job. 0 -
What we have been told in N.D. is if you sell more than 5 firearms per year and they are not part of your COLLECTION, you need to be licensed. The term collection is the operative word as who defines your collection. That is up to the individual, the individual may say, "I collect cheap, poorly made, poor quality pistols". Somebody else might call them a Saturday Night Special.
We just had a situation this last May where 5 individuals who had been selling primarily at gun shows and were not licensed were made an example of. All 5 were arrested at the same gun show. All were tried seperately. All were found guilty of a felony. All received fines and jail time. Jail time was suspended. All firearms were confiscated. N.D. also got into the fracas as none of the defendants paid sales tax on firearms or accessories sold.
2 of the individuals I knew personally; 1 I had done business with; the other 3 were unknown to me, but I had seen them set up for business at numerous shows. All had been told by other dealers and gun show managers to acquire the proper licenses to do business. They paid the price for their foolishness.
When the jack-booted thugs decide to make an example of you, they do have the power and blessing of our Federal government behind them. I feel if you are going to twist the Tiger's tail, you had better have a good hold or the tiger wil eat you and spit you out.0 -
That law is UNCONSTITUTIONAL, I will NOT support it.
This law is UNCONSTITUTIONAL, I WILL support it.
Where is the difference?
People should make up their minds, one way or the other.
Walking the fence, playing BOTH sides.........[V]0 -
So leave me get this right. IF a person finds a good garage sale firearm, advertises it on GB and sells it a year later and makes a profit they break the law if they sell too many. How many is too many? I see no disclaimer on this site stating anything ?? I would assume the law was broken when they didn't claim the profit on their tax returns. Sounds to me we are in a gray area of the law. And what if this person buys a gun at a steal on GB and then turns around a year later cause they don't need the gun or decide to sell it back on GB and make a profit cause the market for this particular firearm has went up considerably? I call this a good investment and the govt. calls it breaking the law? 0 -
quote:So leave me get this right. IF a person finds a good garage sale firearm, advertises it on GB and sells it a year later and makes a profit they break the law if they sell too many. How many is too many? I see no disclaimer on this site stating anything ?? I would assume the law was broken when they didn't claim the profit on their tax returns. Sounds to me we are in a gray area of the law. And what if this person buys a gun at a steal on GB and then turns around a year later cause they don't need the gun or decide to sell it back on GB and make a profit cause the market for this particular firearm has went up considerably? I call this a good investment and the govt. calls it breaking the law?
Wouldn't it make no difference , because your livelihood didn't depend on you selling it ?
Wow another good read , 1st the active shooter thread , now this one [8)]0 -
Then I guess I'm a felon-to-be!
I purchase guns for my personal use, that I KNOW will go up in value; when I eventually sell these firearms FOR A PROFIT, will the JBTs show up in the middle of the night, demanding their percentage?
What about the guns I have given as gifts? When I see a good price on a model that I, or one of my shootin' bros desire; I usually buy 2 or 3 at a time to save gas. If I then sell the gun at a profit to one of my bros; did I just become a felon?!
It's a good thing I DON'T have a license; then they'd only have to kick in the door to "inspect" my premises.0 -
quote:So leave me get this right. IF a person finds a good garage sale firearm, advertises it on GB and sells it a year later and makes a profit they break the law if they sell too many. How many is too many? I see no disclaimer on this site stating anything ?? I would assume the law was broken when they didn't claim the profit on their tax returns. Sounds to me we are in a gray area of the law. And what if this person buys a gun at a steal on GB and then turns around a year later cause they don't need the gun or decide to sell it back on GB and make a profit cause the market for this particular firearm has went up considerably? I call this a good investment and the govt. calls it breaking the law?
Since both your examples are conditioned on a year passing between acquisition and disposition, NO, that is not breaking the law. Technically speaking, if you buy just about anything and turn it a year later for a profit, that money is taxable as income, but probably uncollectable in the real world.
Regarding "a year later:"
A year later is not a few days; it is not a few weeks; it is not a couple of months. It is a year later, and a year later makes a lot of difference.
As a FFL dealer, I can take a firearm from my inventory, and show it in my bound book as transferred to my personal collection. It is now off the books. If it remains in my personal collection for one year or longer, I can then legally dispose of it "off the books." If less than a year has passed, and I want to sell that firearm, I have to re-enter it in my bound book as a transfer from my personal collection, and then transfer it with a 4473.
I don't know who came up with that one year threshold, or why, but it exists.
I would presume that an unlicensed individual, selling a gun or guns that he has owned for a long time, is doing so legally. Selling dozens that you have only owned for a few days is another matter.
I would also presume that if the BATF came and did an audit on my books, and they found 50 guns transferred to my personal collection in a very short period of time, and I was unable to show them any of those guns, they would probably suspect that I was using that one year loophole to circumvent the record keeping requirement, and they would probably be right.0 -
"I wish that the law had in it a statutory number,"...there is 'one'. the atf made several arrests at a local gun show here last year. they would walk up to a nondealers table and offer to sell a gun at a low price, if the non dealer bought it they would come back the next day. If that gun was on the table for sale at a higher price "gottcha". Buying a gun, using it and then selling it would be ok. but a one day turnaround for proffit is a no/no. 0 -
quote:"I wish that the law had in it a statutory number,"...there is 'one'. the atf made several arrests at a local gun show here last year. they would walk up to a nondealers table and offer to sell a gun at a low price, if the non dealer bought it they would come back the next day. If that gun was on the table for sale at a higher price "gottcha". Buying a gun, using it and then selling it would be ok. but a one day turnaround for proffit is a no/no.
I don't doubt that your anecdote is true, but there is still no magic number in the law. It can be one, as you pointed out, or it can be 473, as with our now acquitted hero. The test is profit motive, not numbers.
I have been told that, in Texas, if an individual buys and sells more than three motor vehicles in a 12 month period, he needs a dealer license. Something like that is what I mean; a statutory number stating, "If you sell more than this number you are a dealer, and if you sell fewer than this number, you are not a dealer."0 -
Good read here.
I got caught up in a sting like this a few years back. Several letters and e-mails from the Feds, ended up mailing them hard copies from all conversations with suspect. Lost a little money, and learned a lesson.
That suspect was involved in the same activity depicted in this case. I never did hear the outcome.0 -
quote: Yea, you sell that many guns, you're a dealer. He's a sleazebag and does nothing but add to the negative image and bad name of all gun people. If you're a good gun person, then it's your duty to get jerks like this off of the street
Yea..there is a sleazebag gun owner hereabouts, all right.
One that obeys without question whatever the Beast dictates..and is quick to condemn others that don't.
I find that a gun owner that is so ignorant of the Constitution as to believe that the government has the authority to tell a citizen how many guns/ladders/cars/trinkets he may sell in a day, a month, or a year is a FAR worse enemy of freedom then the subject in question.
I understand how those bending the knee and selling as FFL dealers resent people like this. Perhaps that resentment would be better directed towards a Beast that interferes with free trade..0 -
The feds say you need a license to be "engaged in the business of selling firearms." But the ATF has never defined what constitutes being in the business.
If you sell one gun for profit are you in business? If you sell 50? Or 1000? They have never established a number.
This judge seems to be saying there must be profit involved but the number was not addressed. In fact, it almost sounds like you have to prove the seller was living off the gun sales from what the judge said in his decision.
The law says you need a license to be a gun dealer. You need a license to do many things. I held teaching licenses in 3 states at one time. I had a license to sell liquor a long time ago. Barbers and hairdressers need licenses. Physicians and attorneys need to be licensed. That's the law.
Highball's position is absolute Libertarianism, with no government at all. Not likely to happen and I think most people would like to see less government intrusion but I'm not sure how many want the government to completely go away. He mentions selling cars and of course car dealers are licensed to protect the public from crooked dealers. Same with real estate agents. Same with virtually all goods and services offered for sale.
This guy sold over 400 guns? He should get an FFL and be serious about being a legitimate gun dealer.0 -
quote:Highball's position is absolute Libertarianism, with no government at all.
I mildly disagree. I think his position leans more toward Anarchy. And, having met Highball, I think he could survive in such a state.
Not knocking Highball one bit, either. He has the right to his opinion, same as the rest of us. I am just not sure most of us would be comfortable in his perfect world.0 -
quote:Originally posted by SaxonPig
Highball's position is absolute Libertarianism, with no government at all. Not likely to happen and I think most people would like to see less government intrusion but I'm not sure how many want the government to completely go away. He mentions selling cars and of course car dealers are licensed to protect the public from crooked dealers. Same with real estate agents. Same with virtually all goods and services offered for sale.
The only comment I can make at this time is this:
Has anyone ever been "screwed" by a ____(fill in the blank) even though they HAD a license? How many people have ever been sold a car/house that HAD problems NOT described? How many people have had BAD service from a business?
A LICENSE gaurentees NOTHING. It is merely a way for the GOVERNMENT to nose into YOUR business and TAX you and otherwise TELL you how you MUST run YOUR business according to THEM. Most of the time, they pay no attention, UNLESS they are not getting your "taxes".
M-O-N-E-Y is what this case boils down to.0 -
A license is also there, in many cases, to ensure that the practitioner holding the license is reasonably competent. Would you go to an unlicensed physician, hire an unlicensed attorney, list your home with an unlicensed realtor, let an unlicensed plumber or electrician work in your home? Do you want to share the road with unlicensed drivers?
A licensed gun dealer is a businessman. He has a business, and reputation to protect. If you have a problem with a purchase, in most cases, he will try to work with you on getting the problem resolved. The fellow showing up at gun shows or selling guns in his garage sale probably will not.0
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