[00:00:02] Speaker 03:
All right, next up is 24-7047 and 24-7062, United States versus Riley slash Peebler.

[00:00:14] Speaker 03:
Counsel.

[00:00:15] Speaker 04:
May it please the court.

[00:00:17] Speaker 04:
Stuart Sutherland, Public Defender's Office for the Eastern District of Oklahoma, representing not just Mr. Riley, but also Mr. James Peebler.

[00:00:25] Speaker 04:
I didn't realize until I actually came into Denver that the proceeding case would cover

[00:00:32] Speaker 04:
at least some of my arguments, so I'll try to start out.

[00:00:34] Speaker 02:
What about that?

[00:00:36] Speaker 02:
If we were to, if this panel or another panel were to rule that 922N were constitutional, is that the end of your appeals?

[00:00:51] Speaker 04:
It very well may.

[00:00:52] Speaker 04:
I mean, I have to be real honest there.

[00:00:54] Speaker 04:
I think that the more difficult argument is tying in A6 with N.

[00:01:00] Speaker 04:
But the other way around, if N is facially constitutional, I think that unless there is an unconstitutional as applied challenge or something that could be raised under A6, I believe that that argument is in trouble.

[00:01:14] Speaker 03:
Would you have an as applied theory here?

[00:01:23] Speaker 04:
I think there are a couple of ways that we can look at as applied.

[00:01:26] Speaker 04:
I mean, I think what's kind of interesting in this case, there was some talk of

[00:01:30] Speaker 04:
indictments in the court and these didn't involve indictments.

[00:01:34] Speaker 04:
These involve state court information and in Oklahoma, information are filed simply by a district attorney, an elected official.

[00:01:42] Speaker 04:
He just signs a piece of paper alleging that a crime has been committed.

[00:01:46] Speaker 04:
There is no probable cause determination or anything like that.

[00:01:49] Speaker 04:
when the charge was initially filed.

[00:01:52] Speaker 04:
And that's the way both of these cases came to be.

[00:01:55] Speaker 04:
Both of these were filed without any kind of procedural due process or any determination in any way.

[00:02:02] Speaker 04:
In fact, if there was a determination, it was actually probably in their favor.

[00:02:07] Speaker 04:
Both of these gentlemen, as is necessarily the case, were out on bail.

[00:02:12] Speaker 04:
I think one of them was in fact granted a PR bond.

[00:02:15] Speaker 04:
Another one was posted bond.

[00:02:18] Speaker 04:
And of course, I don't have any record of the determination that the judge made, but we can assume at least that the judge didn't make a determination that either of these gentlemen were either a flight risk or a danger to the community.

[00:02:29] Speaker 03:
Arguably, their crimes were non-violent.

[00:02:32] Speaker 03:
There's a drug distribution and a straw purchase.

[00:02:37] Speaker 04:
Certainly, just by the nature of the crime.

[00:02:39] Speaker 04:
I mean, all that's required for the

[00:02:41] Speaker 04:
drug distribution charges that somebody, in fact doesn't need to be a drug dealer, could be somebody that simply delivered a controlled dangerous substance to another person.

[00:02:49] Speaker 04:
There's nothing necessarily dangerous about that act.

[00:02:59] Speaker 04:
The problem, the different problem I guess in this case is that I think both of the district courts essentially kind of took an off ramp, an early off ramp on the constitutional analysis

[00:03:11] Speaker 04:
because these gentlemen were charged under 922A6.

[00:03:16] Speaker 04:
This gave the judges the ability to just essentially, I think, although the arguments were a little bit different, the rulings were a little bit different, I think they both revolved around this kind of nucleus of there's no constitutional right to lie.

[00:03:28] Speaker 04:
And they certainly cited cases for that notion, not necessarily gun cases, but cases that stated that there was no constitutional right to lie.

[00:03:38] Speaker 04:
Now, whether this statement is true or not, I mean, the announcement must still begin with the actual language of 922A6.

[00:03:44] Speaker 04:
And this is a crime that makes it a crime to make a false statement in the attempted acquisition of a farm from a licensed dealer with respect to any act which is material to the lawfulness of the farm.

[00:03:57] Speaker 04:
And that's where your 922N argument comes in, even though it wasn't stated by a statute name.

[00:04:03] Speaker 04:
And unlike just about every other jurisdiction I looked at,

[00:04:07] Speaker 04:
The Eastern District just charges the A6.

[00:04:12] Speaker 04:
They don't charge A6 and N. They just charge the A6.

[00:04:16] Speaker 03:
The forum also has a partly informational gathering function, it seems to me, and that the government could legitimately want to know if indicted persons, people out on bail are seeking to acquire a firearm.

[00:04:37] Speaker 03:
And so even if 922N were unconstitutional as applied to some of these persons, the government could still ask on a form what your status is.

[00:04:52] Speaker 03:
And that would be A6, and that could be a crime regardless of the underlying constitutionality of 922N.

[00:05:00] Speaker 04:
Well,

[00:05:08] Speaker 04:
I mean while they can certainly, the interesting thing, another interesting thing is that irrespective of the answer that these gentlemen gave on the form, neither one of them received a firearm.

[00:05:18] Speaker 04:
And I think that's because fundamental to this 4473, if I'm remembering that right, the 4473 ATF form is that it is designed to collect biographical information about a person, social security numbers, addresses, names, things that in this day and age make it fairly easy to determine

[00:05:37] Speaker 04:
you know, whether a person is qualified to have a farm.

[00:05:41] Speaker 04:
It still runs through, I think, historically, kind of the 922 things that would prohibit a person from having a farm.

[00:05:48] Speaker 04:
But I think that in this particular case, 922N or D1, the flip side of the coin dealing with a person who's simply been charged with a crime, would run afoul of the Constitution.

[00:05:59] Speaker 02:
Well, assume for a second, just for fun, that there's no such thing as a 922N.

[00:06:05] Speaker 02:
but that the ATF form 4473 still contains the question 21D about are you under indictment?

[00:06:16] Speaker 02:
And your client says no I'm not under indictment when in fact he was.

[00:06:22] Speaker 02:
Would that qualify as a violation of A6 and if not why not?

[00:06:26] Speaker 04:
Well I don't think so because I think then it would become more difficult to argue why would that be material.

[00:06:34] Speaker 02:
And so let me ask you this, with respect to that, the only case that I've really seen that I wonder about on that point is United States versus Sheet from the Seventh Circuit, where the court affirmed an ASICS conviction where the applicant had given a false address.

[00:06:58] Speaker 02:
And there's no crime that says you have to, if you give a false address, then you've committed a crime.

[00:07:03] Speaker 02:
But still, the court said that's the sort of information that is material to the lawfulness, even though there's not an underlying crime.

[00:07:12] Speaker 02:
And so it's broader than that.

[00:07:15] Speaker 02:
It's broader than whether 922N exists.

[00:07:20] Speaker 02:
Is it something that's helpful in determining whether you're someone who should have a firearm?

[00:07:25] Speaker 02:
And so is it a big step

[00:07:27] Speaker 02:
to go from this false address situation to an under-endowment without a 922N.

[00:07:33] Speaker 02:
Sorry, that's a long question, but I hope you... And I'm going to have to take you back.

[00:07:38] Speaker 04:
I don't know that I came across that case.

[00:07:39] Speaker 04:
What was the name of the case, the 7th Circuit case?

[00:07:41] Speaker 02:
The name of the case is United States v. Sheet, S-E-H-E-I-D-T-103-F-4-12-81.

[00:07:48] Speaker 02:
And the only point that I'm raising with that case is that it's a conviction under A-6 for providing a false address.

[00:07:56] Speaker 02:
And there's no crime like 922 analog to say, if you give a false address, you do 10 years.

[00:08:03] Speaker 02:
In other words, you can ask questions that are beyond the criminal code.

[00:08:08] Speaker 04:
And I had exactly the same thought as I was reviewing this.

[00:08:10] Speaker 04:
I try to think of all the questions that you are going to ask.

[00:08:13] Speaker 04:
The case that I stumbled upon was Ambransky.

[00:08:16] Speaker 04:
Ambransky, if I'm pronouncing that correctly.

[00:08:20] Speaker 04:
I don't have a citation right here in my notes.

[00:08:22] Speaker 04:
But that's a Supreme Court case.

[00:08:23] Speaker 04:
And what I thought was interesting about that case is that it involved a person who had purchased a firearm, but not for himself.

[00:08:33] Speaker 04:
He had purchased a firearm for another person.

[00:08:35] Speaker 04:
And his argument that he didn't violate the law was that other person was not a prohibited person.

[00:08:40] Speaker 04:
This gentleman, I think the idea was that he was an ex-police officer and he thought by flashing his police identification he could get a discount or something on the gun.

[00:08:50] Speaker 04:
And the person who actually purchased the gun, I mean, actually had evidence that this person had given a check to Mr. Abramsky and that he had gone to the licensed firearm dealer and procured the gun for another person.

[00:09:03] Speaker 02:
I don't know how that really helps because in that instance there is a crime, straw purchase.

[00:09:09] Speaker 04:
Well, but the argument, I think, that he raised is why it's relevant because he said that it's not relevant because there was basically no harm, no foul here.

[00:09:17] Speaker 04:
So although technically it was a violation,

[00:09:20] Speaker 04:
You know, for example, it wouldn't have been a violation if he had purchased the gun to give it to another person as a gift.

[00:09:26] Speaker 02:
Well, let me, let me circle around and ask it this way.

[00:09:28] Speaker 02:
Okay.

[00:09:29] Speaker 02:
I don't mean to take up all your time, but I want to get an answer on this.

[00:09:32] Speaker 02:
That's fine.

[00:09:32] Speaker 02:
Which is, if there were no 922N, you're saying that ATF could not ask the question, are you under indictment, and then prosecute if you lie about that.

[00:09:48] Speaker 02:
Is that right?

[00:09:49] Speaker 02:
Based on what?

[00:09:52] Speaker 04:
Could they ask the question?

[00:09:53] Speaker 04:
I don't know.

[00:09:54] Speaker 04:
I haven't really thought about it.

[00:09:55] Speaker 04:
I mean, there's all kinds of questions that they could ask that wouldn't necessarily violate 922A6, I suppose, is my thought, is because it wouldn't be material.

[00:10:05] Speaker 02:
And prosecute, I said.

[00:10:06] Speaker 02:
Yes.

[00:10:08] Speaker 02:
Yeah.

[00:10:09] Speaker 02:
Why can't they?

[00:10:11] Speaker 02:
Why can't they?

[00:10:11] Speaker 02:
I'm looking for a limiting principle from you.

[00:10:14] Speaker 02:
You can't ask certain things and then prosecute.

[00:10:18] Speaker 02:
and under indictment being one of them.

[00:10:19] Speaker 02:
Address, yes, under indictment, no.

[00:10:21] Speaker 04:
Well, I feel like that we're broadening the language of the statute to a false answer to a question.

[00:10:31] Speaker 04:
If a false answer to a question, which certainly I think that there are, I think the government's entitled to do that, I think they could probably prosecute you for a false answer to a question, but that's not what

[00:10:42] Speaker 04:
922A6 prohibits.

[00:10:44] Speaker 02:
Is giving a false address a fact material to the lawfulness of the sale?

[00:10:50] Speaker 04:
I think that's where I was going with Abramsky.

[00:10:52] Speaker 04:
Abramsky was a 5-4 Supreme Court decision and it was close, but ultimately they determined that these biographical information, name, address, social security number,

[00:11:05] Speaker 04:
These kind of things are core to the responsibility of the firearm dealer to do his job and therefore it would be material in that regard as to his ability to determine and to do the records check.

[00:11:19] Speaker 04:
How do you do a records check if you don't know who you're selling the gun to?

[00:11:22] Speaker 04:
That was ultimately I think the Ambramsky conclusion is how do you do your job if you don't know who you're selling the gun to?

[00:11:30] Speaker 04:
With your example I just I don't see how

[00:11:35] Speaker 04:
I mean, the address might be material, you know, under Abransky for collecting that information, but it wouldn't be material.

[00:11:42] Speaker 02:
It's material so you can investigate, right?

[00:11:44] Speaker 02:
Right, yeah, I think that's probably the idea.

[00:11:46] Speaker 02:
Isn't under indictment the same thing?

[00:11:48] Speaker 04:
Well, I mean, I think that's what Holden kind of said, is that, you know, even if this isn't directly material, even if the 922, as we,

[00:12:02] Speaker 04:
postulated, even if there was no 922N, still by answering that question falsely, it could lead to the discovery of relevant information.

[00:12:12] Speaker 04:
I mean, I disagree with Holden.

[00:12:14] Speaker 04:
I don't want you to follow Holden, but I think that if you did, if you went down that path, you could come to the same conclusion.

[00:12:20] Speaker 04:
But that's not what the statute says, and it says material to the lawfulness, not

[00:12:25] Speaker 04:
could lead to the discovery of relevant information, but is that information material to the lawfulness of the transfer?

[00:12:32] Speaker 02:
And material to the lawfulness, that requires a 922 criminal violation of some sort by your time.

[00:12:40] Speaker 04:
Well, it certainly, you know, we talked a little bit about as applied, it's certainly exactly what was alleged in this case.

[00:12:45] Speaker 04:
It's interesting because the indictments in this case didn't mention 922N, they didn't mention 922D1, but there can be no doubt from reading the indictment that that was the specific thing that was alleged in this case.

[00:12:57] Speaker 04:
That was the material lawful violation.

[00:13:02] Speaker 01:
Aren't you just basically conceding that you don't meet the first step of Bruin?

[00:13:09] Speaker 01:
The conduct that's alleged here is basically just information gathering.

[00:13:15] Speaker 01:
for a form.

[00:13:16] Speaker 01:
It's information that they're entitled to.

[00:13:18] Speaker 01:
The government is entitled to.

[00:13:20] Speaker 01:
So the conduct isn't protected by the Second Amendment.

[00:13:27] Speaker 01:
And don't you just fail right there at the first step if we get to that point?

[00:13:31] Speaker 04:
I mean, that's certainly what Judge Heil believed is that, you know, he didn't even have to address that first step because he believed the conduct to be simply the lie.

[00:13:42] Speaker 04:
I would say that that's more of an element of an offense would be the lie.

[00:13:47] Speaker 04:
I would say the conduct, I mean, we just have to take one step back here and see what were these gentlemen trying to do?

[00:13:53] Speaker 04:
What was the conduct that they were trying to do?

[00:13:55] Speaker 04:
This was an attempt to acquire and to possess a firearm.

[00:13:59] Speaker 04:
So I would say yes, we do get to the first step of Bruin because I believe that's the conduct, that's the underlying act.

[00:14:07] Speaker 04:
I mean, that's the conduct.

[00:14:09] Speaker 04:
Doesn't have to do with the element of the offense

[00:14:11] Speaker 04:
922A6, but these are attempts to acquire a firearm.

[00:14:17] Speaker 03:
Shouldn't the, what should have happened here was your clients should have truthfully answered the form and then challenged 922N in a declaratory judgment or a separate action, right?

[00:14:32] Speaker 04:
And that's ideal.

[00:14:35] Speaker 04:
Once again, if we step back and think what would have been the best way to handle this in retrospect, that probably would have been a better way to handle it.

[00:14:41] Speaker 03:
But wouldn't it have worked?

[00:14:42] Speaker 03:
You're collaterally attacking a statute for which you weren't convicted of.

[00:14:47] Speaker 04:
He's in a position where he wants to get a firearm.

[00:14:49] Speaker 04:
In fact, in one of these cases, it was his own firearm that he previously pawned.

[00:14:53] Speaker 04:
He was just trying to get his firearm back.

[00:14:55] Speaker 04:
And I can't imagine how long a declaratory action would take.

[00:14:58] Speaker 04:
I can imagine how long it would, you know, how much it would cost.

[00:15:01] Speaker 04:
I just think that was in the realm of practical possibilities for either of these gentlemen to do it.

[00:15:06] Speaker 04:
Theoretically, yes.

[00:15:07] Speaker 04:
Practically, no.

[00:15:08] Speaker 04:
Thank you.

[00:15:30] Speaker 00:
Good morning, Your Honors.

[00:15:31] Speaker 00:
Lisa Williams, representing the United States of America.

[00:15:36] Speaker 00:
I was going to start by noting that the court need not reach the issue of the constitutionality of 922N, but I see from the preceding argument that the court will be reaching that issue, regardless of the outcome of this case.

[00:15:49] Speaker 00:
If this court does determine that 922N is constitutional, that ends the inquiry in this case.

[00:15:56] Speaker 00:
You don't need to address what,

[00:15:59] Speaker 00:
at that point, because 922N is constitutional, the ATF forms question about whether or not Mr. Peevler or Riley were under indictment is material and then you cannot defend against materiality with a lie.

[00:16:18] Speaker 00:
However, in this case, you don't need to reach the underlying issue of the 922N.

[00:16:24] Speaker 03:
If we found that 922N was facially constitutional, wouldn't

[00:16:29] Speaker 03:
these two gentlemen still have an as-applied challenge based on the underlying conduct that they were accused of?

[00:16:38] Speaker 00:
No, Your Honor.

[00:16:38] Speaker 00:
I know that both defendants argue that they bring as-applied challenges, but those as-applied challenges haven't been properly preserved or raised before the district court because they are attacking this statute in every single application.

[00:16:55] Speaker 00:
An as applied challenge here would look something like one of two things.

[00:16:59] Speaker 00:
One, what counsel argued just a few minutes ago.

[00:17:03] Speaker 00:
Oh, in Oklahoma, it doesn't require a grand jury.

[00:17:06] Speaker 00:
It's just a signature by a DA.

[00:17:08] Speaker 00:
But none of those facts were developed in the record.

[00:17:11] Speaker 00:
either through trial or stipulation with the government.

[00:17:14] Speaker 00:
And so there's no way to judge whether or not that's accurate or it's just simply not preserved.

[00:17:21] Speaker 00:
The other way to bring in as applied challenge would say, oh, well, I'm under indictment for antitrust.

[00:17:27] Speaker 00:
And that type of crime is not historically analogous to the types of crimes that disbarred

[00:17:35] Speaker 00:
people in the founding era.

[00:17:38] Speaker 00:
And so because of that, as applied to me, well yes, if somebody's under indictment for murder, you should not let them go acquire new firearms.

[00:17:46] Speaker 00:
But antitrust is different.

[00:17:47] Speaker 00:
But again, we don't have sufficient facts developed through trial or stipulation to preserve the as applied challenge here.

[00:17:56] Speaker 00:
And so the government's position is that's been waived, and what's really before the court is simply the

[00:18:05] Speaker 00:
facial challenge to the statute.

[00:18:08] Speaker 02:
Well, what facts would we need?

[00:18:11] Speaker 02:
Aren't the facts that we would need in the indictment?

[00:18:15] Speaker 00:
Well, for the facial challenge, yes, Your Honor, but that's, in fact... Well, why not for the applied to?

[00:18:23] Speaker 00:
Well, because, and that's the Pope case that the government cited in its brief, which suggested that a 12-B motion isn't the proper venue or method to bring an as-applied challenge, because a 12-B motion to dismiss only looks at the four corners of the indictment.

[00:18:38] Speaker 00:
And is there, are there bare facts legally sufficient to have the indictment survive?

[00:18:47] Speaker 00:
Whereas an as-applied challenge doesn't actually attack the underlying law, right, in every single application.

[00:18:54] Speaker 00:
It says it's just as applied to me and my specific facts of the case.

[00:18:58] Speaker 00:
Well, those specific facts of the case do not and are not contained in the indictment.

[00:19:02] Speaker 02:
Here's what you're indicted for.

[00:19:04] Speaker 00:
Correct.

[00:19:06] Speaker 00:
Lying on the 4473.

[00:19:07] Speaker 02:
Well, you're indicted for a certain crime.

[00:19:11] Speaker 02:
We know what it was, right?

[00:19:14] Speaker 02:
District Court knew what it was.

[00:19:18] Speaker 00:
You mean the underlying state charge that prohibited him from saying, yes, that is also included.

[00:19:25] Speaker 00:
Yes, that's correct.

[00:19:27] Speaker 02:
Well, you don't do an exhaustive inventory of the defendant's whole life in doing, and it has applied to you.

[00:19:34] Speaker 02:
Don't you look at what the charge is?

[00:19:36] Speaker 00:
Well, but you also have to look again, when counsel stands up and says in Oklahoma, the district attorney can obtain an indictment just with his signature and there's no grand jury presentment, those facts aren't in the indictment.

[00:19:48] Speaker 00:
Those are facts that need to be developed if you want to, as applied, attack this statue.

[00:19:54] Speaker 02:
All right.

[00:19:54] Speaker 02:
Let me ask you, I guess, the opposite question I ask opposing counsel, which is, what if

[00:20:01] Speaker 02:
the court were, this court, this panel or another panel were to say that 922N is unconstitutional.

[00:20:09] Speaker 02:
Where does that leave you?

[00:20:11] Speaker 00:
That still does, is not enough to reverse the district court in this case because the constitutionality of 922N does not determine the materiality requirement

[00:20:26] Speaker 00:
of the information collected by the 4473.

[00:20:28] Speaker 02:
Well, you have to admit that if you have a 922N, the materiality of the lawfulness is a lot more evident.

[00:20:36] Speaker 00:
I absolutely agree with that.

[00:20:39] Speaker 02:
And without 922N, then you're relying just on having light on a form, right?

[00:20:47] Speaker 00:
Well, I think it's lying on the form about something that's material.

[00:20:53] Speaker 02:
Material.

[00:20:55] Speaker 02:
We can debate that.

[00:20:57] Speaker 02:
But I guess here's what I want to ask you about.

[00:21:01] Speaker 02:
Is this form, we have question 21D, which asks, are you under indictment?

[00:21:08] Speaker 02:
And then Judge Easterbrook will say,

[00:21:10] Speaker 02:
You can investigate.

[00:21:12] Speaker 02:
You can find out more and learn whether this is a shady character or you shouldn't get a gun by asking that question.

[00:21:17] Speaker 02:
In other words, it has value apart from 922N.

[00:21:23] Speaker 02:
Here's my criticism or problem with that that maybe you can help me with is as you go through this form and then you go back to what the instructions are and it tells you why it's asking that question, everything is tied.

[00:21:38] Speaker 02:
to 922N with hoops of steel.

[00:21:41] Speaker 02:
In other words, there's nothing in this ATF form that suggests ATF would have even asked that question except for 922N.

[00:21:50] Speaker 02:
And so if it's stricken, why don't we just say, we don't know for sure whether ATF even cared about that.

[00:21:57] Speaker 02:
They can tell us by doing a new form.

[00:22:02] Speaker 00:
I agree with that chain of inquiry that the form makes clear that the question is there because of 922N.

[00:22:10] Speaker 00:
I think the problem in this case then is you still don't get to lie and defend your lie by saying the government wasn't allowed to ask that.

[00:22:24] Speaker 02:
What is the limit on that?

[00:22:25] Speaker 02:
Is there any limit that ATF can ask any question it wants and if you tell a lie then

[00:22:31] Speaker 02:
Off you go to the federal prison.

[00:22:33] Speaker 00:
Yes, your honor.

[00:22:37] Speaker 00:
I don't think that I when you look at the Supreme Court case law on that they have routinely rejected for decades.

[00:22:47] Speaker 00:
anyone's lie in a whole variety of situations.

[00:22:52] Speaker 00:
You don't get to lie to the government to defend against something that you think is improper.

[00:22:57] Speaker 02:
Any lie whatsoever to any question on any government forum is material to the lawfulness of the sale.

[00:23:07] Speaker 02:
If it asks, is your favorite team the Los Angeles Dodgers?

[00:23:13] Speaker 02:
And you put yes.

[00:23:15] Speaker 02:
And in fact, everybody knows your wardrobe is all Cincinnati Reds.

[00:23:21] Speaker 00:
I think the way to challenge that, though, is not through lying on the form.

[00:23:26] Speaker 00:
It's through filing a civil suit saying, you have no right to ask this information.

[00:23:31] Speaker 02:
OK, but you don't go that far with any question that you lie on gets you a federal prison ticket.

[00:23:39] Speaker 02:
Do you or do you?

[00:23:41] Speaker 00:
Well, it's hard to engage in that hypothetical because, of course, at the same time, the government would never collect that.

[00:23:47] Speaker 00:
I mean, I know that we're trying to draw lines.

[00:23:52] Speaker 03:
But you're saying every lie is material, aren't you?

[00:23:55] Speaker 03:
I mean, his hypothetical is clearly immaterial.

[00:24:03] Speaker 00:
I don't want to say every lie is material, nor is necessarily every question material.

[00:24:10] Speaker 00:
What the government's position is, you cannot challenge the materiality of a question by lying.

[00:24:17] Speaker 02:
So what if it said, tell us what neighborhood you grew up in.

[00:24:21] Speaker 02:
Because we have statistics that show if you grew up in this side of town, you're more likely to commit a crime and we'd want to investigate you further.

[00:24:29] Speaker 02:
And you say, I grew up on the big castle side of town, which is untrue.

[00:24:36] Speaker 02:
You would say, that is material.

[00:24:39] Speaker 02:
of lawfulness?

[00:24:46] Speaker 00:
I'm not sure that the government's position is that it's a material.

[00:24:54] Speaker 00:
First of all, you can decline to answer.

[00:24:57] Speaker 00:
And then at that point, maybe you still get your firearm.

[00:25:00] Speaker 00:
And if so, then that question is not material to the sale.

[00:25:04] Speaker 00:
Because again, materiality is judged by whether or not the sale would go forward.

[00:25:09] Speaker 00:
It's not by the underlying constitutionality of the questions that are being asked.

[00:25:19] Speaker 00:
But what I return to is the proper way to challenge whether or not a question or an issue is material is not by lying.

[00:25:28] Speaker 00:
And that's what the Supreme Court has said.

[00:25:30] Speaker 00:
There could be a whole wide range of absurd questions asked on the ATF 4473.

[00:25:38] Speaker 00:
Regardless of what those questions are, if you think that they are improper, you can decline to answer, or you can answer truthfully and see if the sale proceeds.

[00:25:48] Speaker 00:
But there is no protected right to lie.

[00:25:52] Speaker 03:
Can't you defend yourself on the materiality aspect?

[00:25:57] Speaker 03:
I'm indicted for an immaterial lie.

[00:25:59] Speaker 03:
Yes, I lied, but it wasn't material.

[00:26:02] Speaker 03:
Dismiss indictment.

[00:26:04] Speaker 00:
I think through a trial you could.

[00:26:05] Speaker 00:
I mean, I think that whether or not the information is material could be a question of fact for a jury to resolve.

[00:26:10] Speaker 00:
Yes, Your Honor, absolutely.

[00:26:12] Speaker 00:
That would be a way to do it here.

[00:26:15] Speaker 00:
But again, that's not what happened in the underlying case because, and again, that's Knox, that's the 1969

[00:26:26] Speaker 00:
Supreme Court case, a person who gives false information to government in feign compliance with the statutory requirement cannot defend against the prosecution by challenging the validity of the requirement itself.

[00:26:38] Speaker 00:
So you cannot defend against lying on the 4473 by challenging the validity of the question being asked.

[00:26:51] Speaker 00:
I do wanna circle back to one thing.

[00:26:55] Speaker 00:
I don't think it's gonna be positive in this case, but there was some talk about the underlying crimes that both of these defendants were indicted for and whether or not they were crimes of violence.

[00:27:06] Speaker 00:
And I do just wanna point out that they were drug crimes, but there was also a secondary carrying of a firearm in connection with a felony.

[00:27:13] Speaker 00:
And again, we don't know enough about the facts because they weren't developed, but if that felony was the drug crime and they were carrying a firearm during

[00:27:21] Speaker 00:
the drug crime that they were also charged with.

[00:27:23] Speaker 00:
That sounds very similar to our 924C, which can be a crime of violence, and so I don't want to concede that somehow these are non-violent offenses that these defendants were.

[00:27:32] Speaker 00:
Again, I don't think that that's dispositive to this case, but I did just want to note that the government didn't concede with that.

[00:27:39] Speaker 00:
I would also note that the 922N argument that the government is raising, the how and the why,

[00:27:50] Speaker 00:
It seems that it's a little bit broader than in the case from Utah before us.

[00:28:01] Speaker 00:
The government has put forth a few different whys from the historical record that's other than just public safety.

[00:28:07] Speaker 00:
And these were all recognized in either Gore, Cures, or Perez Garcia.

[00:28:15] Speaker 00:
And I understand that Perez Garcia is a 3142

[00:28:18] Speaker 00:
not a 922N case, but I think it's still very analogous and on point as the issues were the same.

[00:28:26] Speaker 00:
But obtaining a firearm after indictment might give rise to an inference that the defendant has nefarious intentions towards a witness or a victim.

[00:28:35] Speaker 00:
And I think that's interesting because it ties into the materiality of the question on the form, which is the A6 argument.

[00:28:42] Speaker 00:
One of the reasons, even if 922N didn't exist, that the government may still want to keep that question on the form, is to say, hey, we have an interest in knowing who is obtaining firearms after they've been charged with the crime.

[00:28:56] Speaker 00:
That may be really important information for the government to know, for witnesses to know, for victims to know, for the judge or court staff to know.

[00:29:04] Speaker 00:
There's a history and tradition that if you've been charged with a crime and then you go out and obtain a firearm,

[00:29:11] Speaker 00:
there may be something nefarious going on and dangerous that the government has a right to know about.

[00:29:16] Speaker 00:
And so while I understand that the 4473 doesn't speak in those terms as to the reason about asking it, I think that it would still be a valid question to ask.

[00:29:27] Speaker 02:
But you seem to me to jump the fence there.

[00:29:30] Speaker 02:
We're supposed to be talking about what's material to the lawfulness of the sale, not material to this is something you might want to know about for some reason beyond the lawfulness of the sale.

[00:29:41] Speaker 00:
So the materialness to the lawful of the sale is whether or not the sale could proceed given the information provided.

[00:29:52] Speaker 00:
And just because the explanation is on the form, I don't think that limits the government's interest in collecting that information to only the expressed interest on the form.

[00:30:07] Speaker 00:
I do think that

[00:30:08] Speaker 00:
the government is entitled to have broader interests that it didn't necessarily lay out in the fine print on the 4473.

[00:30:14] Speaker 02:
But it's got to abide that language.

[00:30:17] Speaker 02:
You can't skip past material to the lawfulness of the sale.

[00:30:21] Speaker 00:
Correct.

[00:30:22] Speaker 00:
But then the next part of that is, so would the sale have proceeded?

[00:30:27] Speaker 00:
Again, it's not judged by the Constitution, and I see that I'm out of time if I may.

[00:30:32] Speaker 00:
It's not judged by the constitutionality of the underlying statute just that the question is necessarily based on.

[00:30:39] Speaker 00:
It's whether or not the sale, and that's the Abrahanski case, man, I just butchered that from the Supreme Court.

[00:30:45] Speaker 00:
It's whether or not the sale would proceed without it.

[00:30:50] Speaker 00:
And if you leave that question blank and the sale doesn't proceed, then it is material.

[00:30:55] Speaker 00:
But if the government is asking that question just because it's curious,

[00:31:00] Speaker 00:
and you leave the question blank and the dealer gives you the firearm anyway, then the question wouldn't necessarily be material because the sale would proceed without it.

[00:31:14] Speaker 03:
All right, Counselor, I think your time has expired.

[00:31:17] Speaker 03:
Thank you.

[00:31:18] Speaker 03:
Was there some rebuttal time?

[00:31:20] Speaker 03:
Could you give him a minute, please, Kevin?

[00:31:21] Speaker 04:
I'll try to just address two points.

[00:31:28] Speaker 04:
With regard to that no constitutional right to lie, I read a bunch of cases dealing with that and I kind of narrowed it down to a couple of different classifications.

[00:31:37] Speaker 04:
One, if you're asserting a constitutional right against self-incrimination.

[00:31:41] Speaker 04:
I think clearly the

[00:31:42] Speaker 04:
The remedy there is to not answer the question, to not incriminate yourself.

[00:31:46] Speaker 04:
And there was a whole other group of cases dealing with fraud, people that essentially defrauded the government.

[00:31:51] Speaker 04:
And the Supreme Court, the appellate courts were very concerned with this idea that you could somehow say, well, I can defraud the government as much as I want because, you know, this law, this establishment of this banking association was unconstitutional and they didn't like that either.

[00:32:05] Speaker 04:
So that seems to be either where that language comes from,

[00:32:09] Speaker 04:
those particular cases or it goes back to those particular cases.

[00:32:13] Speaker 04:
And the second thing I'd like to point out, I was ready for somebody to ask me what my best case was.

[00:32:19] Speaker 04:
And nobody did.

[00:32:20] Speaker 04:
But I'm going to say Rahimi.

[00:32:23] Speaker 04:
Even though Rahimi is often used as a sword, it's also a shield.

[00:32:27] Speaker 04:
And that's because the court ruling.

[00:32:29] Speaker 04:
If we look at the ruling, we conclude only this.

[00:32:31] Speaker 04:
An individual found by a court to pose a credible threat to the physical safety of another may be temporarily disarmed.

[00:32:37] Speaker 03:
And that's it.

[00:32:38] Speaker 04:
That's the ruling.

[00:32:39] Speaker 04:
Thank you.

[00:32:40] Speaker 03:
Thank you, counsel.

[00:32:41] Speaker 03:
We appreciate your arguments.

[00:32:42] Speaker 03:
Your excuse in the case is submitted.