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).