Frazier: Eleventh Circuit Rejects Polk Argument, Holding that Falsifying Identity of Firearms Purchaser is a Violation of § 922(a)(6) Even If Actual Buyer May Lawfully Purchase Firearms

May 18, 2010 by Kish & Lietz

In another federal criminal decision issued last Friday, the Eleventh Circuit Court of Appeals held that the identity of a firearms purchaser is always material to the lawfulness of the purchase of a firearm under 18 U.S.C. § 922(a)(6). This decision directly conflicts with the Fifth Circuit’s 1997 holding in U.S. v. Polk that § 922(a)(6) was not violated where both the defendant and his “straw purchaser” were eligible to purchase firearms legally.

In Frazier, the defendants were involved in smuggling firearms from the United States into Canada. The evidence showed that Frazier purchased guns, then paid a woman to order the same guns from the same shop shortly thereafter. Later, another woman ordered additional guns for Frazier.

To convict under § 922(a)(6), the government must prove that the defendant made a false statement regarding “a fact material to the lawfulness of the sale or disposition of [a] firearm.” This section is violated when “an unlawful purchaser uses a straw man purchaser to obtain a firearm.” In this case, however, Frazier was a lawful purchaser using a straw man. In Polk, the Fifth Circuit reasoned that, in such a case, the false statements made regarding the identity of the purchaser were not “material to the lawfulness of the sale of firearms” so there could be no liability under § 922(a)(6).

The Eleventh Circuit disagreed. Under pre-Bonner v. City of Prichard precedent, the Fifth Circuit upheld the § 922(a)(6) conviction of a defendant who had provided a false address in connection with the purchase of a firearm in U.S. v. Grudger. Grudger noted that the sale of a firearm is unlawful under § 922(b)(5) unless the seller records the name, age, and place of residence of the purchaser. Therefore, providing a false address is a misrepresentation that is material to the lawfulness of the sale. For this reason, the Eleventh Circuit held in Frazier that the misrepresentation violated § 922(b)(5) and, correspondingly, § 922(a)(6), even though the actual purchaser was eligible to purchase firearms.

The opinion in U.S. v. Frazier is available here.

Ghertler: Eleventh Circuit Holds Abuse of Trust Federal Sentencing Enhancement Does Not Apply Where Criminal Defendant Impersonated a Trusted Person

May 17, 2010 by Kish & Lietz

This past Friday the Eleventh Circuit Court of Appeals issued its opinion in U.S. v. Ghertler, a federal criminal case. The Court held that Ghertler, who had impersonated corporate officials to obtain urgent cash transfers from large corporations, did not abuse a position of trust in perpetrating his frauds because he had no relationship of trust to abuse. For that reason, the abuse of trust sentencing enhancement at U.S.S.G. § 3B1.3 should not have applied.

In 2006 and 2007, Mr. Ghertler researched the names of corporate officers, then called the company and identified himself as an officer, usually the general counsel. He claimed that some urgent matter, such as settlement of a lawsuit, required an immediate cash transfer and provided instructions for distribution of the funds. He pleaded guilty to eight counts of wire fraud in 2008, admitting to defrauding the seven companies named in the indictment. He was sentenced to concurrent 185-month sentences.

One of Ghertler’s arguments on appeal was that the District Court should not have applied U.S.S.G. § 3B1.3, a two-level sentencing enhancement for abuse of a position of trust. The District Court recognized that Ghertler did not actually hold a position of trust, but based its decision on Application Note 3, which provides for application of the enhancement where “the defendant provides sufficient indicia to the victim that the defendant legitimately holds a position of private or public trust when, in fact, the defendant does not.”

The Court held that “[a] relationship of trust between the defendant and the victim is the sine qua non of the abuse-of-trust enhancement.” In this case, there was no relationship of trust between Ghertler and the victims to abuse. The Court looked to the history to Application Note 3, pointing out that the Commission adopted the Note to ensure that the enhancement would apply to defendants who entered into relationships of trust with victims based upon misrepresentations. The relationship of trust remains the touchstone of the abuse-of-trust analysis. Without such a relationship, the enhancement cannot be applied.

The opinion in Ghertler is available here.

Supreme Court Opinions Issued This Morning in Graham v. Florida, U.S. v. Comstock, and Abbott v. Abbott

May 17, 2010 by Kish & Lietz

This morning the United States Supreme Court issued three opinions.

In Graham v. Florida, the Court held that the Eighth Amendment’s Cruel and Unusual Punishment Clause does not permit a juvenile offender to be sentenced to life in prison without the opportunity for parole for a nonhomicide crime.

Justice Kennedy wrote the opinion, joined by Justices Stevens, Ginsburg, Breyer, and Sotomayor. Chief Justice Roberts concurred only in the judgment. Justice Stevens filed a concurring opinion, joined by Justices Ginsburg and Sotomayor. Justice Thomas filed a dissenting opinion joined by Justice Scalia and in part by Justice Alito, who also filed a dissent. The opinions in Graham v. Florida are available here.

In U.S. v. Comstock, the Court upheld 18 U.S.C. § 4248, which allows a federal district court to order the civil commitment of a mentally ill, sexually dangerous prisoner after the date he would otherwise be released.

Justice Breyer delivered the opinion, joined by Chief Justice Roberts and Justices Stevens, Ginsburg, and Sotomayor. Justices Kennedy and Alito filed concurring opinions. Justice Thomas dissented, joined in part by Justice Scalia. The opinion in U.S. v. Comstock is available here.

In Abbott v. Abbott, the Court held that a parent has a right of custody under the Hague Convention by reason of that parent’s ne exeat right, which is the authority to veto the other parent’s decision to leave the child’s country of residence.

Justice Kennedy wrote the opinion and was joined by Chief Justice Roberts and Justices Scalia, Ginsburg, Alito, and Sotomayor. Justice Stevens dissented, joined by Justices Thomas and Breyer. The opinion in Abbott v. Abbott is available here.

Phaknikone: Eleventh Circuit Holds Myspace Profile Photographs Inadmissible Character Evidence, but Harmless Error

May 11, 2010 by Kish & Lietz


Yesterday, the Eleventh Circuit, which hears appeals from federal cases here in Atlanta, held in U.S. v. Phaknikone that profile photographs from the criminal defendant’s Myspace account were inadmissible evidence of character. The government argued that the photos demonstrated modus operandi: the defendant’s gangsta style as shown in the photographs identified the defendant because he robbed banks “like a gangster.” The Court saw through the argument, but held that admitting the photos was harmless error, due to the “overwhelming” evidence of Phaknikone’s guilt.

The relevant photograph in this case showed Phaknikone in the driver’s seat of a car. A tattoo is visible on his neck, as well as a large tattoo on his left arm, and he is holding a handgun in his right hand. A passenger is handing something to a child in the back seat of the car. The Court held that this photograph “proves only that Phaknikone, on an earlier occasion, possessed a handgun in the presence of a child. Although the photograph may portray a ‘gangster-type personality,’ the photograph does not evidence the modus operandi of a bank robber who commits his crimes with a signature trait.”

Phaknikone was convicted on fifteen counts stemming from seven bank robberies in late 2006 and early 2007 in Northeast Georgia. He was captured fleeing one robbery and confessed to three more. Evidence regarding clothing and shoes worn by the robbers, eyewitness accounts of his tattoos, and behavior during the robberies was introduced by the government, as well. The Court held that the evidence was overwhelming, viewed in its totality, so the admission of the photographs was harmless error.

The Court’s opinion is available here.

View larger version of image here.