Split Widened: Must The Statement, Or The Falsity, Be Material For 18 U.S.C. 922(a)(6)

Per United States v. Abramski (4th Cir. Jan. 22, 2013)

Former police officer Abramski was suspected of robbing a bank.  In the course of investigating that crime, for which the Government apparently found no evidence (p.5), FBI agents uncovered Abramski's purchase of a handgun for his uncle.  Abramski purchased the gun because he was able to obtain a favorable police-officer price, and he concealed the fact that his uncle, who was legally entitled to own guns, was the ultimate purchaser.

As a result of this discovery (and the lack of proof of bank robbery), Abramski was indicted for violating 18 U.S.C. 922(a)(6), making a false statement material to the lawfulness of a firearm sale.  In relevant part, the statute criminalizes:

[K]nowingly mak[ing] any false or fictitious oral or written statement . . . intended to deceive such [licensed] importer, manufacturer, dealer, or collector with respect to any fact material to the lawfulness of the sale or other disposition of such firearm . . . .

(Emphasis added).  Abramski challenged the indictment, contending that the concealment of his uncle was not material because the uncle is legally entitled to purchase firearms.  The district court denied Abramski's motion, and Abramski pleaded guilty while reserving his right to appeal.  The Fourth Circuit affirms, in the process widening a split between the CA5 and the CAs 6, 11, and now 4.  (p. 12-13.)

The split concerns whether "material" simply modifies the statutory term "fact," or also modifies "false or fictitious."  Put another way, the split concerns whether the question answered falsely must be material (CA4, 6, 11), or whether the falsity of the answer must itself be material (CA5). 

I agree with the majority school.  The text of the statute indicates that material modifies fact.  Thus, Abramski's concession that the identity of the purchaser is sometimes material--e.g., where the purchaser cannot legally buy guns--dooms his argument. 

More importantly, to be material, a fact does not necessarily have to affect the outcome of the decision (here, the decision to sell the gun).  Instead, a fact must simply be "capable of influencing" the decision.  Kungys v. United States, 485 U.S. 759, 770 (1988).  The identity of the purchaser is capable of influencing the decision to sell a gun, because some individuals cannot buy guns.  Therefore, identity is material.