The problem according to the ATF agents is that the paperwork a gun buyer must sign to purchase a firearm under oath establishes that the weapon is for personal use and not for sale. Also, in an effort to keep guns out of the hands of criminals, ATF does not want private sales of firearms to disrupt the law requiring background checks to buy a weapon.
Here are seven factors ATF will consider in making a determination as to whether a specific weapon was bought for personal use or for sale.
1. How long was the firearm possessed by a buyer before it was re-sold? Holding a weapon for a short period of time before selling.
2. Buying the weapon for the mere purpose of soon selling it.
3. Were the firearms used or were they kept in new condition in order to get a higher sale price.
4. Being a party to multiple sales.
5. Using the internet to find purchases willing to pay more than the prevailing fair market value for a firearm.
6. Lack of a complete and effective investigation into the background check of the buyer to determine whether the buyer has a criminal record. The issue is not whether the buyer has a criminal record, but whether the background check was avoided in the sell. In fact, the 'buyer' may be an ATF agent.
7. Failure to file the appropriate forms as required by federal law (see below).
Further, ATF agents have let it be known that they do not deem it a defense that the target who bought a gun at Walmart and who sells it two months later has the buyer of that gun sign an affidavit that he has now criminal history and intends to keep the gun and not sell it yet again. In the ATF mission statement for firearms 'gun purchasers' and those who seek to 'divert firearms from legitimate trade to criminal use" are of special concern:
In addition to aiding the enforcement of Federal requirements for gun purchases, compliance inspections of existing licensees focus on assisting law enforcement to identify and apprehend criminals who illegally purchase firearms.
The inspections also help improve the likelihood that crime gun traces will be successful, since inspectors educate licensees in proper record keeping and business practices. Compliance inspections target licensees likely to divert firearms from legitimate trade to criminal use and dealers with a history of poor compliance.
Further, the FTA in an open letter notes that private sellers have no way to conduct an appropriate background check of a buyer and therefore must file the appropriate forms or be subject to prosecution.
To the best of my knowledge these cases are now being prepared for presentation before federal grand juries for indictments. It's important to note that many Federal firearms violations trigger minimum mandatory sentences under the Federal Sentencing Guidelines. Anyone being investigated faces immediate arrest and should contact a Clearwater criminal defense lawyer who is well versed in Federal law in the Middle District of Florida.