*1 v LANEY PEOPLE 7, May 14, 2003, August at Detroit. Decided No. 239290.Submitted Docket appeal sought. to at 9:05 A.M. Leave dealer, charged Laney, in the 36th firearms was A. a licensed General pistol selling a offense of with the misdemeanor District Court pursuant complying licensing law to MCL with state without pistol 750.223(1) 28.422(5) a to an under- after he sold and MCL deputy, acting as a “straw man” to who was sheriff’s cover accompanied individual, pistol purchase who had for another the store, permit deputy not have a to but did the to the defendant’s permit purchase deputy presented gun. the The a a although pistol deputy, the gun, the to the the defendant sold pistol provide man handle the witnessed the other pistol. money deputy The defendant verified the statutorily deputy required writing the was the a form that on pistol. purchaser dis- The defendant moved to of the licensee or charge, arguing not violate state law. that his actions did miss the concluding Milhouse, J., charge, court, dismissed the Donna R. The statutory complied obligations with the defendant had that pur- writing imposed 28.422(5) when he verified in MCL Wayne deputy, pistol Circuit a licensee. The of the chaser appealed Hathaway, J., prosecution Court, Diane M. affirmed. granted. leave Appeals held: The Court of provides pistol, 28.422(5) Upon that a dealer the sale of pistol verify licen- was sold to the on a license form “that the must knowingly 750.223(1) provides sells see.” MCL “[a] guilty complying misde- pistol of a with [MCL28.422] without 750.223, people must under MCL In a meanor.” prove a licensee. MCL did not sell the that the defendant case, unique question of fact 28.422(5). this Under the facts of actually a licen- regarding “sold to” whether the exists jury Allowing question this see, to resolve. of fact is for a and this require adoption jury federal go does not case to Rather, allowing jurisprudence. into “straw man” doctrine fair jury ensures that the was “sold to” to decide who the provision import to” of MCL of the “sold and natural the Court legislative To enforced. conclude otherwise would defeat gun licensure, verification, records, scheme of sale retention purchaser would because the actual not be made known to the successfully purchaser authorities where the a “straw man” uses purchase. make the *2 proceedings Reversed and remanded for further in the district court. J., dissenting, disagrees majority’s stated that she with the supports 28.422(5) the MCL decision that of the defen- adoption charge dant’s the criminal without of the federal “straw Michigan statutes, man” doctrine. The 28.422 MCL and MCL respect 750.223, ambiguous unlawful, are with to what conduct is contrary and, majority’s conclusion, they plainly pro- not do support scribe the defendant’s in this actions case. To the defen- facts, dant’s under the instant the federal “straw man” applied, doctrine would have to be but because stat- analogous statutes, utes are not broad as the federal firearms application of the “straw man” doctrine is not warranted. The Mich- igan general princi- statutes must be with construed accordance ples statutory lenity of and the construction rule of that must be applied in the case of criminal statutes. Because defendant’s 28.422(5), actions did not violate MCL his was conduct not con- trary 750.223(1), to MCL and decision of the circuit court should be affirmed. — — — Criminal Law Gun Dealers Pistols Verifications of Sales Licensees. purposes prosecuting gun selling pistol For of a licensed for dealer a complying requires without with the statute that the dealer to ver- ify pistol licensee, pistol that the was sold to a the issue of who the actually question jury was sold to is a of fact to be resolved (MCL28.422[5];750.223[1]). Attorney Cox, Michael A. General, Thomas L. Casey, Duggan, General, Solicitor Michael E. Pros- Attorney, ecuting Timothy Baughman, and A. Chief Appeals, Training, people. of Research, for the ChokweLumumba for the defendant.
Before: P.J., and Neff JJ. Murray, Talbot, granted We P.J. leave this case deter- Murray, question jury mine it whether is a a fact for the Court state dealer violated whether a decide licensee, a pistol a he sold by verifying that law the licensee show that plausibly facts when the unau- man” for “straw as a so-called acting the dealer. from thorized jury present case facts of this unique Because was actu- regarding issue submissible circuit order of the reverse the to,” we ally “sold district court case to the remand this court opinion. with this consistent proceedings further AND PROCEEDINGS I. MATERIAL FACTS misdemeanor with the charged Defendant complying without selling offense of 750.223(1). and MCL law, license state on charges motion to dismiss filed a Defendant that his including argument an grounds, numerous *3 law. of state a violation did not constitute actions file a written failed to Although an evi- court held motion, the district response motion. dentiary on defendant’s hearing a thor- court issued the district hearing, After the opinion and opinion. In that well-written and ough following find- set forth the the district court order, were court indicated fact, which of ings “undisputed”: federally- relevant, a defendant was all times 1. At Sup- Laney’s Guns and owner of gun dealer and shop”). Michigan (the “gun
plies Detroit, in County Wayne Sheriff’s April 6, undercover 2. On Coming [sic, Cum- Epps deputies and Roshunda Walter year civilian, Lit- Antonio along old mings], with a then 18 equipped shop. deputies gun were tle, visited the visually (to capture a limited devices to surveillance hidden Opinion of the Court audibly, Epps, degree) among Coming, the interaction copy taped exchange Little and defendant. A of that video evidentiary at was admitted into evidence as an exhibit objection. hearing without expressed purchasing
3. Little to defendant interest a shop. gun per from his Little if a Defendant asked he had gun mit Little indicated that he not. did however, Epps, permit. Epps (Epps) that he had a stated presented Department with a State of Police and license to that appeared admittedly to be valid but which contained now identifying fictitious information defen unbeknownst copy applicationAicense dant.1 A of that was admitted into evidentiary objection. at hearing evidence without response inquiry 4. In to Little’s how about old one must permit, Laney gun explained be to obtain that “I can’t sell you nothing you’re response repeated until 21.” In inquires by Epps purchasing gun about more than one at a time, explained also that such a transaction be would against legally only the law as was he allowed to make one gun particular person every days, to a regardless sale five of many permits gun person might how have. gun shop, handwriting,
5. While at the and in his own Epps completed a form entitled “Firearms Transaction Counter,” Record Part I—Over the issued the United Department Treasury States Bureau Alcohol Tobacco Epps responded and Firearms. On (under that form that he identity holder) fictitious as the license was the buyer being purchased. copy actual of the that was completed transaction record form admitted into evidentiary objection. at the hearing evidence without helped 6. Mr. Little either selected or select the purchased, actually pistol during handled process. attempted directly give selection Mr. Little cash payment pistol. to defendant for the When defendant *4 accept money refused and indicated that the come must Epps, Epps from Little the handed cash to it to handed defendant. People v ti-ie Court Throughout transaction,
7. the course of the obligation relating gun talked about his to follow the law sales, including being not able to sell ammunition Little. presented by Epps gun form
8. The license at the shop completed signature and was with the address of description pistol seller, of the date of sale. money Epps 9. The that Mr. Little handed to own, prerecorded govern- was not his but was day purchased, same it ment funds. On the conveyed custody Wayne County Sheriff’s Department tagged as evidence.
1Epps evidentiary presented hearing testified at the that he permit identity using (i.e. defendant with a false a fictitious Labose, August 1971) assigned Dino Otis birth date Epps Wayne County Department. Sheriff’s Defendant suspect gun license, had no reason to that the which con purported signature, tained a notarized and identification presented by Epps both were fictitious. fact,
After these making findings of district court concluded that defendant had complied with the stat- utory obligations imposed by 28.422, finding Epps, and, he sold the a licensee therefore, law, as a matter of defendant had not violated MCL The circuit court affirmed 750.223(1). the dismissal of for the charges reasons articulated the district court.
II. ANALYSIS
presented
appeal
We review de novo the issue
on
because the district court dismissed the
after
charges
statutory provision. People
Premo,
applying
App 406, 407-408;
Mich
Opinion of the Court
of determination that facts did not fall
(1991) (review
proscribed statutory
novo);
within
conduct
de
Peo-
ple
Carlson,
136;
v
466 Mich
The critical is set forth in MCL 28.422(5), provides which that a such as gun dealer, defendant, verify pis- must on a license form “that the tol was sold provides to the licensee.” Subsection 5 that,
[u]pon pistol, the sale of the the seller shall fill out the pistol sold, describing together license forms with the sale, sign indicating date of his or her name in ink that pistol sold the licensee. The licensee shall also sign purchase indicating his or her name in ink of the pistol may copy from the seller. The seller retain a of the pistol. license aas record of the sale of the The licensee copies authority licensing shall return of the license to days following pistol. within 10 [Emphasis added.1]
Resolution of this case involves a straightforward application of the statute to the facts of this case. The has Legislature set forth detailed scheme addressing pistols. the sale of pistol One desiring must, first submit an to the local commis- police, sioner or chief of who must issue a license if statutory criteria are satisfied. MCL 28.422(2)-(4). 750.223(1), provides We are led to MCL which knowingly complying sells a without “[a] [MCL guilty of a misdemeanor . . . .” 28.422] Opinion of the Court Once granted, authority the licensing must deliver copies of the license to the licensee, MCL 28.422(4),2 purchases once the licensee pistol, both the dealer and the licensee must, alia, verify inter on a form that the was sold to and purchased by the licensee. MCL 28.422(5).
In a under MCL 750.223(1), people prove, must as one of the elements of crime, the defendant did not sell the to a licensee. *6 Under 28.422(5). unique the facts case, of this there is a material question of fact on that issue. The district court’s3 factual findings show that defendant knew Little was not a licensee, therefore, that defendant could not lawfully pistol sell a to Little. Once it was disclosed that Epps had a license, the proceeded. transaction Little asked questions of defendant about different guns, examined different guns, and then attempted pistol by the handing money. the Defendant, however, refused to take money the from Little, indicating that money the had to Epps. come from In front of defen- dant, Little his gave money to Epps, who turn handed it over to defendant. Epps then filled out the paperwork.
These facts question reveal a significant jury resolution, namely whether the actually “sold Epps to” when defendant knew that Epps was money Little’s using the pistol by handled 2 requires authority licensing copy The statute also the to retain a of years, copy the license for six and to forward a to the director of the Department forty-eight of State Police within hours of issuance 28.422(6). of the license. MCL 3 support Because there was evidence in the record to the district findings fact, particular six, paragraph court’s those in its factual clearly Gilmore, supra. determinations were not erroneous. 32 25 Opinion of the Court lawfully Little and that he could not the sell by of Appeals Little. As stated the United States Court Brooks, for the Fifth Circuit in United States v 614, (CA 5, F2d 1980): a sham to a statute violated sale made resi
[T]he really nonresident, dent when with a transaction jury decide, it is for all on the relevant evidence and proper instructions, whether such a charade occurred resident)[4] there or whether was a bona fide sale to a Accord, Straach, United States v 987 F2d (CA 5, 1993). this
Allowing go jury case to does not require adoption the federally recognized “straw man doctrine”4 Michigan jurisprudence.6 into contrary, jury To the allowing decide whether actually Epps to” would “sold ensure straightforward requirements set forth are Legislature Morey, enforced. 461 Mich 325, 330; 603 NW2d prin (1999) (recognizing “ ciple of construction fair and natural ‘[t]he *7 import employed, subject of the terms view of law, matter of the ”) is what should govern’ (citation People v 251 omitted); Libbett, App 353, 366; 650 4 The Brooks grounds decision United States on other reversed Henry, Straach, 203, v (CA 5, 1984). See United v 749 F2d States 206 987 232, (CA 5, 1993). F2d n 239 9 5 purchases purchaser “Straw when an firearms occur unlawful . . . purchaser uses a lawful ‘straw man’ ... firearm.” United obtain a Sta,tes Ortiz, 1030, 11, v (CA 2003). 318 F3d 1037 6 See, e.g., Moore, United States v 1456, (CA 9, 1997), F3d 1460-1461 recognizes “nothing long which the straw man doctrine more than a standing construction the relevant . . . .” statutes Dissenting J. Neff, jury view, allowing In our (2002).7 NW2d actually determine whether defendant sold fair and Epps import or ensures that the natural Little provision of MCL of the “sold to” Morey, supra. Moreover, under the dis- enforced. of a “straw man” approach, sent’s the successful use buyers easily defeat the ineligible leg- would allow of the statute. United purpose islative scheme Nelson, States 1206, (CA 11, 221 F3d 1209-1210 Lawrence, United States v 1126, 680 F2d 2000), citing Indeed, to conclude otherwise (CA 1982). scheme of sale legislative licensure, would defeat the verification, records, and retention of because the purchaser actual never be made —Little—would known to the authorities because defendant allowed buy money “straw man” —to use Little’s Epps —the reasons, for Little.8 For these we reverse the circuit court decision and remand this case to the district court consistent with this proceedings opinion.
Talbot, J., concurred. respectfully I dissent from the (dissenting). majority’s decision and its conclusion that the lan- statute, guage Michigan gun licensing supports the criminal in this case 28.422(5), charge 7 Accordingly, the fact the federal there are differences between proper disposition bearing and state firearm laws has no on the of this case. 8 Importantly, punishable. this is not our view of what should be policy Clearly, judiciary equipped malte is neither nor authorized to Services, Inc, 304, 319; Koontz v Ameritech 466 Mich 645 NW2d decisions. Rather, statutory phrase allowing (2002). it results from “sold to’’ to applied actually sold the to is be so that identified. *8 258 Mich Dissenting J. Neff, federally the adoption recognized even without the ques- I the person” agree “straw doctrine. While purchase ultimately tion of in a straw is one of guilt by jury, pre- presents fact to be decided this case liminary question of law that must be decided before proceed jury prosecution can to a trial. I would decision, affirm the circuit court because a criminal premised cannot be on conduct is proscribed by not a criminal statute.
In its reaching conclusion that the federal straw person adopted jury doctrine need not be for a to find conduct, that defendant in criminal engaged majority necessarily concluded that the stat- at unambiguous utes issue were in proscribing in is, majority sale issue. That in the view, clear, the statutes is therefore no con- necessary, and, struction the courts conse- judicial quently, longstanding construction of the federal law applying straw doctrine is inapplicable. To contrary, the fed- comparing eral and I Michigan statutes, conclude that the Michi- gan statutes are less clear than their federal counter- parts in proscribing alleged conduct, and do not allow for the of the straw doctrine. Furthermore, statutory under the rules of construc- tion, lenity applied the rule of must be in criminal strictly cases. The statutes at issue must be construed lenity. Thus, law, favor of as a matter of the charge properly question dismissed and the factual not reached. Dissenting Opinion by
i. FACTS operated business, Defendant a retail firearms Laney’s city Supplies, in Guns and Detroit. On April Epps Wayne Sergeant 6, 1999, Walter County Department Sheriffs went to defendant’s busi- accompanied by Sergeant Cummings ness, Roshunda eighteen-year-old Little, who was work- and Antonio Epps ing with the officers. was outfitted with under- equipment Cummings cover video surveillance and wore a hidden audio surveillance device. approached
As the three store, defendant’s defen- opened they dant the door and asked what wanted. Little told defendant that he was interested purchasing weapons. inquired When defendant permit purchase1 gun, whether Little had a to a Little responded that he did not. told Defendant Little that twenty-one purchase pistol.2 he had to be to a How- Epps permit ever, informed that defendant he had a purchase gun. Epps, permit, a in fact, had a issued signed and him under an alias, Labose, Dino Otis Epps’s assigned undercover name. Defendant then proceeded with the sale.
During Epps transaction, the course of the and inquired guns, asking prices, Little about different questions Epps per- defendant answered from about gun pistol and, missible sales.3 Little chose a after is, purchase pistol, That an license to which are police departments, 28.422(3). issued local twenty-one years purchase pis age must be or older to federally 28.422(3)(b). tol from a dealer. MCL example, Epps For had when asked whether defendant additional stock, only guns in defendant told him that it did not matter because one purchased every days Epps working could be if had more five even permit purchase. than one Dissenting Opinion by attempted examining by handing it, it money. defendant the However, defendant refused to money stating Epps give take Little, from had to money purchase. gave money him the for the Little Epps, Epps gave money gun. Epps completed and defendant required paperwork Epps for the transaction, with purchaser.
II. LEGAL ISSUE PRESENTED question presented by plaintiff for our decision appeal on is:
A “straw man” eligi- transaction occurs when one who is *10 ble to does so on behalf of one who is not eligible, and deems the to have been made person. ineligible charge The here is that defendant know- ingly engaged transaction, as seller in a straw-man falsely required stated on the form that he had sold to an person. eligible facts, proven trial, Are these if at sufficient guilt under the relevant statutes? majority federally recog- The concludes that the person adopted nized straw doctrine need not be go jury. allow this case to to the I conclude otherwise. undisputed gun It is that the sale in this case involved purchaser eligible putative ineligible an as well as an purchaser. presents This factual context a classic person straw recog- transaction, as the prosecutor’s theory nizes. The was that defendant knowingly engaged in a “straw man” transaction whereby pistol actually ineligi- sold Little, an buyer, ble and defendant therefore violated the stat- by indicating licensing pis- utes on the forms that the Epps. tol was sold to the licensee, People v Dissenting federally firearms dealer. is a Defendant gun work tandem state laws federal and The Although licensing guns. regulate of the sale prosecute straw have been used laws federal prosecuted purchases, sales, as well applied Michigan the feder- not law. has under state prosecute ally adopted state doctrine straw then, decision, The issue for law violations. may be doctrine straw whether the federal analogous applied statute.
III. STANDARD OF REVIEW
scope
alleged
ruling
within the
conduct falls
question
law that is
of
statute is a
of
criminal
People Thomas,
438 Mich
v
de novo.
reviewed
People
(1991);
213 Mich
Premo,
v
IV. ANALYSIS charged Defendant was with violating MCL provides 750.223(1), person which who “[a] knowingly pistol sells a without complying [MCL misdemeanor, punishable of a guilty 28.422] imprisonment not days, more than 90 or a fine of $100.00 not more than or both.” The charge was based on alleged defendant’s violation of subsection 5 of MCL 28.422, provides, part: which in relevant
Upon pistol, the sale the seller shall fill out the describing pistol license sold, together forms with the sale, sign date of the his or indicating her name ink pistol that the sold to the licensee. The licensee shall sign also indicating his or her name in ink seller.[4] pistol from the Further, MCL 28.422(3) (b) requires person that a be twenty-one years at least of age federally from a licensed 6The dealer.
posited that because defendant knew that Little, an underage1 nonlicensee, was actually purchasing pistol, Epps merely aas straw acting person, defendant violated MCL when he indicated paperwork on the that the gun was sold to Epps, the licensee. time, 750.222(d) pro At the 28.421(c) relevant both MCL and MCL “ that, ‘[pjurchaser’
vided means a who receives a from person by purchase, Similarly, gift, 750.222(e) another or loan.” MCL “ previously provided 28.421(d) ‘[sjeller’ that a means a sells, furnishes, loans, gives person.” or to another pursuant A seller 18 USC 923. *12 Dissenting Opinion Neff, J. that the dis- prosecution contends appeal,
On knowing that a seller’s holding erred in trict court pistol by person purchase in participation a straw buyer not violate MCL 750.223. The does ineligible an judicially solely federal, on the cre- relies prosecution doctrine, applied construing in straw man ated seq. 1968, Act of 18 USC 921 et federal Gun Control 9, Moore, (CA 109 F3d See United States is, essence, prosecution’s argument The 1997). the term must have intended Legislature broadly pro- construed to in MCL be “sold” The does person hibit straw transactions. pro- plainly statutes Michigan not contend that application conduct even without alleged scribe the majority con- doctrine, as the person of the straw statutes, I the federal and state Comparing cludes. majority’s “plain language” for the con- find no basis does not “sold,” plainly expressed, The term clusion. a sale case, involving transaction in this proscribe statutes are licensee, Epps. Michigan eligible an than the federal statutes such that explicit not more judicially on the created straw doc- reliance this case. may prosecuting trine be ignored
B of the federal My legal underpinnings review of the doctrine convinces use of the straw judiciary’s not war- statutes, written, do that the Michigan me federal In general, of the doctrine. rant law. than the law is much broader firearms 922, 924, statutes, 18 USC firearms Under the federal Dissenting Opinion by Neff, provisions prosecute are used to licensed several participate purchases: dealers who in straw prohibits selling (b)(3) dealers from Section anyone in-state, (b)(5) who does not reside and section requires licensed dealers to record certain information such *13 name, age place purchaser as of residence of the of a (5). 922(b)(3), firearm. 18 USC § similarly 922(m) Section of Title 18 has been utilized in prosecuting a for in licensed dealer his involvement a straw purchase. E.g., Cha, 392, (9th v 837 F2d United States 393 provisions 1988). 922(b), Cir Almost redundant with the of § any 922(m) be unlawful for § states shall licensed “[i]t any knowingly entry in, . . . dealer . . . make false fail appropriate entry in, properly to make an or fail to main- tain, any required keep pursuant record which he is chapter regulations promulgated section 923 of this or 922(m). thereunder.” 18 USC §
[*] [*] [*] applied 924(a)(3)6 is also to dealers who [Subsection misrepresentation regarding make a the intended transferee gun]: aof Any dealer, importer,
(3) licensed licensed licensed man- ufacturer, knowingly— or licensed collector who
(A) any representation makes false or statement respect required by provisions to the information of this chapter kept to be in the records of a licensed under chapter, this or
(B) (m) 922, violates subsection of section shall be fined title, imprisoned year, under this not more than one or 924(a)(3). both. 18 §USC provisions penalty provision, § Because most in 922 do not contain a 924, penalty provision §to courts must look of the federal firearms statutes, punishment. appropriate However, § to determine the 924 also provisions, independently contains substantive criminal which have been prosecute People Wegg, 898, Supp
used to straw transactions. F v (ED 1996). Va. Dissenting part
This section was added as of the Firearm Owners’ 99-308, Protection Act of Pub L No 100 Stat 449 provision similarly (1986). This criminalizes a licensed knowing acceptance completed dealer’s form BATF[7] purchaser (and signature the straw on the BATF form itself) violation, provides record-keeping only as a but for a penalty. Through 924(a)(3)(B), misdemeanor § a licensed- prosecuted in a dealer’s involvement straw under 922(m) similarly penalty. [People § results a misdemeanor Wegg, Supp 898, Va, (ED 1996).] F919 902-903 clearly The federal statute is comprehensive more dealer proscribing conduct than is MCL 28.422(5), and therefore proscriptions the broad federal can reason- ably inteipreted be a straw prohibiting sale. Notwithstanding, subsection 922(b)(5), which has been used to prosecute sale,7 a straw is similar to the Michigan law. It states:
(b) any - It shall be importer, unlawful licensed manufacturer, dealer, licensed or licensed collector to sell or deliver- *14 any
(5)
armor-piercing
any per
firearm or
ammunition to
records, required
son unless the licensee notes in his
to be
923[9]
kept pursuant
chapter,
name,
to section
of this
age,
place
person
person
and
of residence of such
if the
individual,
identity
principal
an
places
or the
and local
person
person
corporation
of business of such
if the
is a
or
entity.
other business
7
Alcohol,
The federal Bureau of
Tobacco and Firearms.
Rietzke,
(CA 7, 2002);
United States v
Percival, Supp Va, (ED 1990). 727 F states, pertinent part: 923(g)(1)(A) importer, 18 USC in “Each licensed manufacturer, and licensed dealer shall maintain such records of importation, production, shipment, receipt, sale, disposition or other place period, form, firearms at his of business for such and in such as the Attorney may by regulations prescribe.” General
Dissenting Opinion by prosecuted in this case comparison, In MCL 28.422(5). and MCL 750.223(1) under MCL states: 750.223(1) complying knowingly sells a without misdemeanor, punishable guilty
with of a [MCL 28.422] by imprisonment days, more than 90 or a fine of not for not $100.00, more than or both. states:
Upon pistol, the sale of the the seller shall fill out the pistol sold, together describing the with the license forms sale, sign indicating in ink date of his or her name sold to the licensee. The licensee shall also sign indicating or her name in ink of the his may copy retain a of the from the seller. The seller pistol. license as a record of the sale of the The licensee authority copies licensing shall return 2 of the license to the days pistol. following within 10 scope, encompass- The federal statute is broader in beyond ing proscribing conduct well Michigan statute. the federal statute uses Although statutory deliver,” “sell or these arguably provisions, subsection and MCL 922(b)(5) 750.223(1), sufficiently justify 28.422(5), are similar to of the federal straw doctrine under the Michi- gan However, law. such a conclusion disregards explicit fact that the statute is not as with to the regard proscribed, conduct nor are stat- utes, similar. whole, explicitly
The federal engaging statute states that However, the stated conduct is “unlawful.” the Michi- specific statute is gan ambiguous regard proscribed. conduct intended to be Given its sentence *15 construction, statute could be read to Dissenting Opinion by Neff, only ensure that the completes dealer and signs required record —“the seller shall fill out the license forms . . . sign his or her particularly name” — since MCL 28.422 is a licensing statute. The language at issue in merely vague modi- explicit requirement that the seller sign the fies his or her “sign ink, name indicating form — sold to the licensee.” (Emphasis added.)
A comparison of other provisions of the Michigan statute supports conclusion that at language issue was not intended to specifically proscribe sales persons. to straw Other provisions of MCL 750.223 contain explicit a seller prohibiting from in certain engaging sales, opposed as failing comply provisions with the licensing of MCL 28.422:
(2) person knowingly sells a firearm more than 30 length person years inches in to a age guilty under 18 misdemeanor, punishable by imprisonment of a for not days, $500.00, more than 90 or a fine of not more than or subsequent both. A second or violation of this subsection is felony punishable by imprisonment for not more than 4 years, $2,000.00, or a fine of not more than or both. It is an affirmative defense to a under this subsection that the who sold the firearm asked to see and was shown a driver’s license or identification card issued purchaser state being years that identified the age or older.
(3) A seller shall not sell a firearm or ammunition to a person if following' the seller knows that either of the cir- cumstances exists:
(a) felony. is under indictment for a As used subdivision, “felony” in this means a violation of a law of state, state, this ofor another or of the United States that is punishable by imprisonment years 4for or more. *16 App 25 258
44 Mich by Dissenting Opinion Neff, J. ]from 224f[10 person prohibited under section is (b) The carry purchasing, transporting, selling, using, possessing, distributing a firearm. ing, shipping, receiving, or (3) guilty a fel- person is (4) who violates subsection A by imprisonment for not more than 10 ony, punishable $5,000.00, by or both. years, not more than or a fine of [MCL 750.223.] person
Applying
doctrine under the Mich-
the straw
ambiguity
requires
igan
in the Michi-
that the
statute
ignored.
gan
if
hand,
the other
be
On
statute
lenity
acknowledged,
ambiguity
is
then the rule of
strictly
properly applied.
statutes are to be
Criminal
People
lenity.
Gilbert, 414
in favor of
construed
People
(1982);
v Rut-
211;
Moreover, Michigan statute is explicit may not so that regarding concerns notice be law, Under clear disregarded. the federal it is straw sales illegal. are 1993 case indicates Alcohol, the Bureau of Tobacco and Firearms has circular that “strawman defines term (batf) transaction” and states that such are transactions ille- gal. Straach, 5, United States v 987 F2d (CA 1993). Straach, In law enforcement officers claimed *17 they gave circular to the dealer. Id. Further, required the batf transactions, form for firearms filed by dealers, contains a warning:
Warning delivery —The sale or of a firearm a licensee purchaser eligible acting agent, to an who is as an interme diary purchaser” or “straw for someone whom the licensee ineligible knows or has reasonable to cause believe is may directly, firearm result in a of the violation Federal firearm laws. at [Id. 235.11] recently, Nelson, supra More at 1208 n the court referred to the warning: federal batf 8(a) requires certify Question on Form 4473 an individual buyer” “actual
he is the of firearm or firearms listed on the form, as follows: you buyer you Are the actual firearm indicated If below? question this answer no to cannot firearm dealer transfer the you. Important (See 1.). Notice Important page Notice 1 is on the second form and provides: Warning require —The Federal laws firearms that the individual filling buying out this form must be the firearm for himself or her- gift. Any buying self or as a individual who is not the firearm for completes gift, form, himself or herself or as a but this vio- Example: lates the law. Mr. asks Mr. Smith Jones to a fire- gives money arm for Mr. Smith. Mr. Mr. Smith Jones the for the fire- form, arm. If Mr. Jones fills out the he will violate law. How- ever, buys money give if Mr. Jones a firearm with his own to Mr. App
Dissenting Opinion by
C support The statutes do not the straw doctrine under the circumstances of Construing encompass this case. 750.223(1) the straw doctrine as the basis of the alleged criminal conduct is inconsistent with our rules of statutory interpretation. may speculate Courts not probable regarding Legislature intent of the in the statute. Al- beyond expressed Saiegh, supra Cherry Growers, Inc, supra at 399; at 173. impose liability
To
person theory
under
straw
expand
this case would
the Legislature’s definition of
the criminal offense under MCL 750.223(1). Criminal
strictly
lenity.
statutes are to be
construed in favor of
Gilbert, supra, at 211; Rutledge, supra at 5. It is the
Legislature’s responsibility to define criminal offenses
thereby
determine what conduct
is within the
statutory prohibition. scope
Crousore,
of a
159 Mich
304, 310;
Importantly, what is clear from the surveillance *18 tape fully is that defendant was legal aware of the requirements, state federal, he had to meet to sell a firearm and that he was insistent following on the letter of the law in each regard. Defendant was well applicable law, versed in the explaining its nuances to birthday present, may lawfully complete Smith as a Mr. Jones this knowingly form. A licensee who delivers a firearm to an individual buying gift who is the not firearm for himself or herself or as a vio- by maintaining lates the law a false atf 4473. F[orm] People v Neff, Dissenting by the throughout and, officers the transaction all any he had no indications, engage illegal intent short, conduct. In he was complying believed he letter, with the if not of spirit, the the law. These facts bolster the conclusion that the statute not clear and in proscribing the conduct. unambiguous alleged 28.422(5) requires seller “fill out the together license forms the describing sold, with sale, sign the date of the his or name in her ink indicating that sold to licensee . undisputed ...” It completed that defendant forms that he licensing indicating gun sold the licensee, In Epps. complied so doing, the statute. Defendant’s conduct was therefore not contrary to MCL 750.223(1).
V.SUMMARY acknowledged by As prosecution, this case can- prosecuted not be Michigan adopt- under law without ing applying developed straw doctrine judiciary federal under federal laws. analysis close Michigan federal and law convinces me that straw applied doctrine cannot be to the Michigan statute sustain defendant under law. I would affirm.