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United States of America v. Timothy Russell

May 29, 2012

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
TIMOTHY RUSSELL JOHNSON, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the District of Arizona Susan R. Bolton, District Judge, Presiding D.C. No. 2:10-cr-00379- SRB-1

The opinion of the court was delivered by: Graber, Circuit Judge:

FOR PUBLICATION

OPINION

Argued and Submitted April 16, 2012-San Francisco, California

Before: Mary M. Schroeder, Diarmuid F. O'Scannlain, and Susan P. Graber, Circuit Judges.

Opinion by Judge Graber

OPINION

Defendant Timothy Russell Johnson appeals his jury conviction on two counts of making a false statement with respect to information required to be kept by a federally licensed firearms dealer, in violation of 18 U.S.C. § 924(a)(1)(A). We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In a series of transactions, Defendant bought firearms and, almost immediately, delivered those firearms to Miguel Pedroza. Defendant did not possess a license to manufacture or deal in firearms.

On September 28, 2006, Defendant went to a store named "Shooters Supply Company," which was a federally licensed firearms dealer. There, Defendant arranged to purchase 25 Polish AK-47 rifles. As part of the transaction, Defendant filled out ATF*fn1 Form 4473. Question 11.a on Form 4473 reads:

Are you the actual 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. (See Important Notice 1 for actual buyer definition and examples.)

Important Notice 1 states:

Actual Buyer: For the purposes of this form, you are the actual buyer if you are purchasing the firearm for yourself or otherwise acquiring the firearm for yourself (for example, redeeming the firearm from pawn/retrieving it from consignment, firearm raffle winner). You are also the actual buyer if you are legitimately acquiring the firearm as a gift for a third party. ACTUAL BUYER EXAMPLES: Mr. Smith asks Mr. Jones to purchase a firearm for Mr. Smith. Mr. Smith gives Mr. Jones money for the firearm. Mr. Jones is NOT the actual buyer of the firearm and must answer "no" to question 11.a. The licensee may not transfer the firearm to Mr. Jones. However, if Mr. Brown goes to buy a firearm with his own money to give to Mr. Black as a present, Mr. Brown is the actual buyer of the firearm and should answer "yes" to question 11.a. Please note, if you are picking up a repaired firearm for another person, you should answer "n/a" to question 11.a.

Defendant answered "yes" to Question 11.a, declaring that he was the "actual buyer" of the firearms as defined on the form. Defendant then left Shooters Supply with the rifles and promptly delivered them to Pedroza, who gave him $4,500 as a partial payment.

On October 6, 2006, Defendant returned to Shooters Supply. He completed another Form 4473, again declaring himself to be the "actual ...


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