United States v. Abramski

• Decision Date: 23 January 2013
• Docket Number: No. 11–4992.,11–4992.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Bruce James ABRAMSKI, Jr., Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

706 F.3d 307

UNITED STATES of America, Plaintiff–Appellee,

v.Bruce James ABRAMSKI, Jr., Defendant–Appellant.

No. 11–4992.

United States Court of Appeals,Fourth Circuit.

Argued: Dec. 4, 2012.

Decided: Jan. 23, 2013.

ARGUED:Rhonda Lee Overstreet, Overstreet Sloan, PLLC, Bedford, Virginia,for Appellant. Thomas Ernest Booth, United States Department of Justice, Washington, D.C., for Appellee. ON BRIEF:William H. Cleaveland, William H. Cleaveland, PLC, Roanoke, Virginia, for Appellant. Timothy J. Heaphy, United States Attorney, Donald R. Wolthuis, Assistant United States Attorney, Office of the United States Attorney, Roanoke, Virginia; Lanny A. Breuer, Assistant Attorney General, John D. Buretta, Acting Deputy Assistant Attorney General, United States Department of Justice, Washington, D.C., for Appellee.

Before KING, SHEDD, and DAVIS, Circuit Judges.

Affirmed by published opinion. Judge KING wrote the opinion, in which Judge SHEDD and Judge DAVIS joined.

OPINION

KING, Circuit Judge:

On November 17, 2009, in purchasing a Glock 19 handgun for his uncle in Pennsylvania, Bruce James Abramski, Jr., assured the firearms dealer in Virginia that he was the “actual buyer” of the handgun. Abramski was thereafter charged with being an illegal “straw purchaser” of the firearm. Pursuant to conditional pleas of guilty, Abramski was convicted in the Western District of Virginia on June 29, 2011, for two firearm offenses: (1) making a false statement that was material to the lawfulness of a firearm sale, in violation of 18 U.S.C. § 922(a)(6); and (2) making a false statement with respect to information required to be kept in the records of a licensed firearms dealer—that is, that he was the actual buyer of the firearm, when in fact he was buying it for someone else—in contravention of 18 U.S.C. § 924(a)(1)(A).

Prior to his guilty pleas, the district court denied Abramski's motions to dismiss the charges and suppress evidence. Abramski appeals from the criminal judgment, maintaining that the court erred in two respects. First, he argues that the court erred in denying his motion to dismiss the indictment because his conduct was beyond the purview of §§ 922(a)(6) and 924(a)(1)(A), in that both he and his uncle were legally entitled to purchase and own the Glock 19 handgun. Second, he contends that the court erred in denying his motion to suppress on the ground that inculpatory evidence had been unconstitutionally seized from his residence. As explained below, we reject Abramski's contentions of error and affirm.

I.

The facts underlying Abramski's convictions are undisputed. Prior to November 2009, Abramski, who lived in Franklin County, Virginia, and his uncle, Angel Alvarez, who resided in Pennsylvania, had several conversations concerning Alvarez's desire to obtain a Glock 19 handgun. Abramski offered to purchase a Glock 19 for Alvarez because, as a former Virginia police officer, Abramski could obtain a favorable price from a firearms dealer that catered to police officers in Collinsville, Virginia. Before purchasing the handgun, Abramski spoke with three licensed federal firearms dealers and discussed how to legally conduct such an acquisition. The dealers apparently advised Abramski, in essence, that a licensed dealer in Pennsylvania could complete the transfer to his uncle after the handgun had been purchased by Abramski in Virginia. In order to implement the transaction, Alvarez sent Abramski a check for $400 on November 15, 2009. The term “Glock 19 handgun” was written in the memo line of the check.

On November 17, 2009, Abramski went to the firearms dealer in Collinsville and purchased a Glock 19 handgun, among other items, paying for them with more than $2000 in cash. In conducting the transaction, Abramski completed Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) Form 4473, which contained several questions about the purchase of firearms, to be answered by checking boxes marked “Yes” or “No.” Of importance here, question 11.a. on the ATF Form 4473 stated:

Are you the actual transferee/buyer of the firearm(s) listed on this form? Warning: You are not the actual buyer if you are acquiring the firearm(s) on behalf of another person. If you are not the actual buyer, the dealer cannot transfer the firearm(s) to you.

J.A. 585 (emphasis on Form 4473).¹ Abramski checked the answer “Yes” to question 11.a. Three days later, on November 20, 2009, the $400 check from Alvarez was deposited in Abramski's bank account, and the next day Abramski transferred the Glock 19 handgun to Alvarez at a licensed federal firearms dealer in Easton, Pennsylvania. At that time, Alvarez gave Abramski a receipt confirming the transfer, reflecting that Alvarez had purchased the Glock 19 handgun for $400.

Meanwhile, on November 12, 2009, a bank robbery occurred at Franklin Community Bank in Rocky Mount, Virginia. An investigation of the robbery led the FBI to suspect Abramski. Abramski had been fired from the Roanoke police department in 2007, looked similar to the masked bank robber, and was down on his luck (Abramski and his wife had recently separated and their home was in foreclosure).

Abramski was arrested in early July 2010 on state law charges relating to the bank robbery. In connection therewith, two FBI agents investigating the robbery sought and secured search warrants relating to the investigation. The first warrant was issued on July 1, 2010, for the search of a home on Highland Farm Road in Calloway, Virginia, where Abramski's parents lived, and where Abramski had moved a short time earlier. The “items to be seized” included things believed to be related to the bank robbery, such as a black square duffle bag, a black ski mask, firearms, and the catch-all phrase covering “[a]ny and all articles that appear to be relevant to the commission of a robbery.” J.A. 224. The second search warrant was obtained about three weeks later, on July 19, 2010, for a home on Iron Ridge Road in Rocky Mount, Virginia, which was Abramski's marital residence. This warrant specified some of the same items as the first warrant and also included the same catch-all phrase. In executing the search warrant for the Iron Ridge Road property, agents found and seized a green Franklin Community Bank zippered bag containing the written receipt confirming the transfer of the Glock 19 handgun from Abramski to Alvarez on November 21, 2009.

The federal authorities have never charged Abramski with bank robbery, and the state bank robbery charges against him were dismissed on October 15, 2010. On November 18, 2010, however, the federal grand jury indicted Abramski for the firearms offenses underlying this appeal. A corrective superseding indictment that apparently only deleted information about the firearms dealer was returned on May 12, 2011. The superseding indictment (hereinafter the “indictment”) charged Abramski, in Count One, with making the false and fictitious statement on the ATF Form 4473 that he was the actual buyer of the Glock handgun, in violation of 18 U.S.C. § 922(a)(6) and § 924(a)(2).² Count Two of the indictment charged Abramski with making a false statement with respect to information required to be kept in the records of a licensed firearms dealer, in violation of § 924(a)(1)(A).³ In both charges, the prosecution relied on the theory that Abramski was merely a “straw purchaser” of the firearm that was immediately transferred to Alvarez.⁴

On March 10, 2011, Abramski moved to dismiss both counts of the indictment (the “first dismissal motion”), contending that, because the firearm was legally transferred to Alvarez and Abramski made no material misrepresentations to the Virginia firearms dealer, the firearms statutes were never intended to punish his conduct. Also on March 10, 2011, Abramski moved to suppress the receipt found in the money bag in his home, arguing that its seizure was unconstitutional under the Fourth Amendment.⁵ The district court denied both these motions from the bench on March 14, 2011. See J.A. 276, 310–11. The court ruled, first of all, that 18 U.S.C. §§ 922(a)(6) and 924(a)(1)(A) were violated when a false or fictitious statement is made on an ATF Form 4473, and, second, that the search warrant for Abramski's home was amply supported by probable cause. In any event, according to the court, seizure of the receipt was proper under the good faith exception to the exclusionary rule.

On April 18, 2011, after the court had denied his first dismissal motion and his initial motion to suppress, Abramski filed a second motion to dismiss the indictment (the “second dismissal motion”). He therein contended that question 11.a. on the ATF Form 4473 is not required by law (but was created by the ATF) and that, inasmuch as the ATF itself decided that the “actual buyer” of a firearm must be ascertained at the time of acquisition, the ATF had failed to comply with the notice and comment procedures required by the Administrative Procedure Act. After conducting a hearing on the second dismissal motion on April 22, 2011, the district court rejected that motion by a published decision filed on April 25, 2011. See United States v. Abramski, 778 F.Supp.2d 678, 680 (W.D.Va.2011) (determining that disclosure of actual firearm purchaser is required by law). Notably, Abramski does not appeal the court's denial of the second dismissal motion.⁶ On June 27, 2011, Abramski filed a second motion to suppress, asserting that, after the denial of his first motion to suppress, he discovered evidence that undermined the credibility of a witness who had provided information concerning the search warrants. See J.A. 385. The court denied this suppression motion from the bench following an evidentiary hearing conducted on June 27, 2011, and the second motion to suppress is not relevant to this appeal. See J.A. 514.

On June 29, 2011, pursuant to a plea agreement with the United States Attorney, Abramski entered conditional guilty pleas, pursuant to ...