United States v. Bruce Abramski, Jr. ( 2013 )

Certiorari granted by Supreme Court, October 15, 2013
Affirmed by Supreme Court, June 16, 2014
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 11-4992
BRUCE JAMES ABRAMSKI, JR.,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
Glen E. Conrad, Chief District Judge.
(7:10-cr-00068-GEC-1)
Argued: December 4, 2012
Decided: January 23, 2013
Before KING, SHEDD, and DAVIS, Circuit Judges.
Affirmed by published opinion. Judge King wrote the opin-
ion, in which Judge Shedd and Judge Davis joined.
COUNSEL
ARGUED: Rhonda Lee Overstreet, OVERSTREET SLOAN,
PLLC, Bedford, Virginia, for Appellant. Thomas Ernest
Booth, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellee. ON BRIEF: William H.
Cleaveland, WILLIAM H. CLEAVELAND, PLC, Roanoke,
2 UNITED STATES v. ABRAMSKI
Virginia, for Appellant. Timothy J. Heaphy, United States
Attorney, Donald R. Wolthuis, Assistant United States Attor-
ney, OFFICE OF THE UNITED STATES ATTORNEY,
Roanoke, Virginia; Lanny A. Breuer, Assistant Attorney Gen-
eral, John D. Buretta, Acting Deputy Assistant Attorney Gen-
eral, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellee.
OPINION
KING, Circuit Judge:
On November 17, 2009, in purchasing a Glock 19 handgun
for his uncle in Pennsylvania, Bruce James Abramski, Jr.,
assured the firearms dealer in Virginia that he was the "actual
buyer" of the handgun. Abramski was thereafter charged with
being an illegal "straw purchaser" of the firearm. Pursuant to
conditional pleas of guilty, Abramski was convicted in the
Western District of Virginia on June 29, 2011, for two firearm
offenses: (1) making a false statement that was material to the
lawfulness of a firearm sale, in violation of 18 U.S.C.
§§ 922(a)(6); and (2) making a false statement with respect to
information required to be kept in the records of a licensed
firearms dealer — that is, that he was the actual buyer of the
firearm, when in fact he was buying it for someone else — in
contravention of 18 U.S.C. § 924(a)(1)(A).
Prior to his guilty pleas, the district court denied Abram-
ski’s motions to dismiss the charges and suppress evidence.
Abramski appeals from the criminal judgment, maintaining
that the court erred in two respects. First, he argues that the
court erred in denying his motion to dismiss the indictment
because his conduct was beyond the purview of §§ 922(a)(6)
and 924(a)(1)(A), in that both he and his uncle were legally
entitled to purchase and own the Glock 19 handgun. Second,
he contends that the court erred in denying his motion to sup-
UNITED STATES v. ABRAMSKI 3
press on the ground that inculpatory evidence had been
unconstitutionally seized from his residence. As explained
below, we reject Abramski’s contentions of error and affirm.
I.
The facts underlying Abramski’s convictions are undis-
puted. Prior to November 2009, Abramski, who lived in
Franklin County, Virginia, and his uncle, Angel Alvarez, who
resided in Pennsylvania, had several conversations concerning
Alvarez’s desire to obtain a Glock 19 handgun. Abramski
offered to purchase a Glock 19 for Alvarez because, as a for-
mer Virginia police officer, Abramski could obtain a favor-
able price from a firearms dealer that catered to police officers
in Collinsville, Virginia. Before purchasing the handgun,
Abramski spoke with three licensed federal firearms dealers
and discussed how to legally conduct such an acquisition. The
dealers apparently advised Abramski, in essence, that a
licensed dealer in Pennsylvania could complete the transfer to
his uncle after the handgun had been purchased by Abramski
in Virginia. In order to implement the transaction, Alvarez
sent Abramski a check for $400 on November 15, 2009. The
term "Glock 19 handgun" was written in the memo line of the
check.
On November 17, 2009, Abramski went to the firearms
dealer in Collinsville and purchased a Glock 19 handgun,
among other items, paying for them with more than $2000 in
cash. In conducting the transaction, Abramski completed
Bureau of Alcohol, Tobacco, Firearms and Explosives
("ATF") Form 4473, which contained several questions about
the purchase of firearms, to be answered by checking boxes
marked "Yes" or "No." Of importance here, question 11.a. on
the ATF Form 4473 stated:
Are you the actual transferee/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
4 UNITED STATES v. ABRAMSKI
of another person. If you are not the actual buyer,
the dealer cannot transfer the firearm(s) to you.
J.A. 585 (emphasis on Form 4473).1 Abramski checked the
answer "Yes" to question 11.a. Three days later, on November
20, 2009, the $400 check from Alvarez was deposited in
Abramski’s bank account, and the next day Abramski trans-
ferred the Glock 19 handgun to Alvarez at a licensed federal
firearms dealer in Easton, Pennsylvania. At that time, Alvarez
gave Abramski a receipt confirming the transfer, reflecting
that Alvarez had purchased the Glock 19 handgun for $400.
Meanwhile, on November 12, 2009, a bank robbery
occurred at Franklin Community Bank in Rocky Mount, Vir-
ginia. An investigation of the robbery led the FBI to suspect
Abramski. Abramski had been fired from the Roanoke police
department in 2007, looked similar to the masked bank rob-
ber, and was down on his luck (Abramski and his wife had
recently separated and their home was in foreclosure).
Abramski was arrested in early July 2010 on state law
charges relating to the bank robbery. In connection therewith,
two FBI agents investigating the robbery sought and secured
search warrants relating to the investigation. The first warrant
was issued on July 1, 2010, for the search of a home on High-
land Farm Road in Calloway, Virginia, where Abramski’s
parents lived, and where Abramski had moved a short time
earlier. The "items to be seized" included things believed to
be related to the bank robbery, such as a black square duffle
bag, a black ski mask, firearms, and the catch-all phrase cov-
ering "[a]ny and all articles that appear to be relevant to the
commission of a robbery." J.A. 224. The second search war-
rant was obtained about three weeks later, on July 19, 2010,
for a home on Iron Ridge Road in Rocky Mount, Virginia,
which was Abramski’s marital residence. This warrant speci-
1
Citations herein to "J.A. ____" refer to the contents of the Joint Appen-
dix filed by the parties in this appeal.
UNITED STATES v. ABRAMSKI 5
fied some of the same items as the first warrant and also
included the same catch-all phrase. In executing the search
warrant for the Iron Ridge Road property, agents found and
seized a green Franklin Community Bank zippered bag con-
taining the written receipt confirming the transfer of the
Glock 19 handgun from Abramski to Alvarez on November
21, 2009.
The federal authorities have never charged Abramski with
bank robbery, and the state bank robbery charges against him
were dismissed on October 15, 2010. On November 18, 2010,
however, the federal grand jury indicted Abramski for the
firearms offenses underlying this appeal. A corrective super-
seding indictment that apparently only deleted information
about the firearms dealer was returned on May 12, 2011. The
superseding indictment (hereinafter the "indictment") charged
Abramski, in Count One, with making the false and fictitious
statement on the ATF Form 4473 that he was the actual buyer
of the Glock handgun, in violation of 18 U.S.C. § 922(a)(6)
and § 924 (a)(2).2 Count Two of the indictment charged
2
Count One of the indictment alleged, in relevant part, as follows:
On or about November 17, 2009, in the Western Judicial District
of Virginia, the defendant, BRUCE JAMES ABRAMSKI, JR., in
connection with his acquisition of a firearm, a Glock Model 19,
9 mm semi-automatic pistol, from a federally licensed firearms
dealer, did knowingly make a false and fictitious written state-
ment to said dealer, which statement was likely to deceive said
dealer, as to a fact material to the lawfulness of such sale of the
said firearm to the defendant, BRUCE JAMES ABRAMSKI, JR.,
under chapter 44 of Title 18, in that the defendant, BRUCE
JAMES ABRAMSKI, JR., represented that he was the actual
buyer of the firearm, when in fact, as the defendant . . . then well
knew, he was buying the firearm for another individual [in viola-
tion of 18 U.S.C. §§ 922(a)(6) and 924(a)(2)].
J.A. 381.
Section 922(a)(6) provides, in relevant part,
[It shall be unlawful] for any person in connection with the acqui-
sition of . . . any firearm . . . knowingly to make any false or ficti-
6 UNITED STATES v. ABRAMSKI
Abramski with making a false statement with respect to infor-
mation required to be kept in the records of a licensed fire-
arms dealer, in violation of § 924(a)(1)(A).3 In both charges,
the prosecution relied on the theory that Abramski was merely
a "straw purchaser" of the firearm that was immediately trans-
ferred to Alvarez.4
On March 10, 2011, Abramski moved to dismiss both
counts of the indictment (the "first dismissal motion"), con-
tending that, because the firearm was legally transferred to
tious oral or written statement . . . intended or likely to deceive
such . . . dealer . . . with respect to any fact material to the lawful-
ness of the sale[.]
18 U.S.C. § 922(a)(6). Section 924(a)(2) of Title 18 provides for punish-
ment of a person who has violated § 922(a)(6) by both fine and imprison-
ment.
3
Count Two of the indictment alleged, in relevant part, as follows:
BRUCE JAMES ABRAMSKI, JR., knowingly made a false
statement and representation in connection with his acquisition of
a firearm, to a federally licensed firearms dealer, with respect to
information required by the provisions of Chapter 44 of Title 18,
United States Code, to be kept in the records of Town Police
Supply, in that [he] represented that he was the actual buyer of
the firearm, when in fact, as the defendant, BRUCE JAMES
ABRAMSKI, JR., then well knew, he was buying the firearm for
another individual [in violation of 18 U.S.C. § 924(a)(1)(A)].
J.A. 382.
Section 924(a)(1)(A) provides, in relevant part,
[It shall be unlawful to] knowingly make[ ] any false statement
or representation with respect to the information required by this
chapter to be kept in the records of a person licensed under this
chapter[.]
18 U.S.C. § 924(a)(1)(A).
4
A "straw purchase" of a firearm has been described as a sale where the
individual making the purchase represents himself to be the actual buyer,
but is actually the agent of another person who will receive possession of
the firearm. See United States v. Nelson, 221 F.3d 1206, 1208-09 (11th
Cir. 2000).
UNITED STATES v. ABRAMSKI 7
Alvarez and Abramski made no material misrepresentations
to the Virginia firearms dealer, the firearms statutes were
never intended to punish his conduct. Also on March 10,
2011, Abramski moved to suppress the receipt found in the
money bag in his home, arguing that its seizure was unconsti-
tutional under the Fourth Amendment.5 The district court
denied both these motions from the bench on March 14, 2011.
See J.A. 276, 310-11. The court ruled, first of all, that 18
U.S.C. §§ 922(a)(6) and 924(a)(1)(A) were violated when a
false or fictitious statement is made on an ATF Form 4473,
and, second, that the search warrant for Abramski’s home was
amply supported by probable cause. In any event, according
to the court, seizure of the receipt was proper under the good
faith exception to the exclusionary rule.
On April 18, 2011, after the court had denied his first dis-
missal motion and his initial motion to suppress, Abramski
filed a second motion to dismiss the indictment (the "second
dismissal motion"). He therein contended that question 11.a.
on the ATF Form 4473 is not required by law (but was cre-
ated by the ATF) and that, inasmuch as the ATF itself decided
that the "actual buyer" of a firearm must be ascertained at the
time of acquisition, the ATF had failed to comply with the
notice and comment procedures required by the Administra-
tive Procedure Act. After conducting a hearing on the second
dismissal motion on April 22, 2011, the district court rejected
that motion by a published decision filed on April 25, 2011.
See United States v. Abramski, 778 F.Supp.2d 678, 680 (W.
D. Va. 2011) (determining that disclosure of actual firearm
purchaser is required by law). Notably, Abramski does not
5
In his March 10, 2011, motion to suppress, Abramski incorrectly
asserted that the receipt had been seized during execution of the search
warrant for the Highland Farm Road property. See J.A. 220-21. During the
March 14, 2011, court hearing, however, Abramski orally amended his
motion to suppress to challenge the constitutionality of the second war-
rant, the one dedicated to the Iron Ridge Road property, where the receipt
was actually seized. See id. at 261.
8 UNITED STATES v. ABRAMSKI
appeal the court’s denial of the second dismissal motion.6 On
June 27, 2011, Abramski filed a second motion to suppress,
asserting that, after the denial of his first motion to suppress,
he discovered evidence that undermined the credibility of a
witness who had provided information concerning the search
warrants. See J.A. 385. The court denied this suppression
motion from the bench following an evidentiary hearing con-
ducted on June 27, 2011, and the second motion to suppress
is not relevant to this appeal. See J.A. 514.
On June 29, 2011, pursuant to a plea agreement with the
United States Attorney, Abramski entered conditional guilty
pleas, pursuant to Rule 11(a)(2) of the Federal Rules of Crim-
inal Procedure, to both charges in the indictment.7 On October
3, 2011, the court sentenced Abramski to five years of proba-
tion on each offense, to run concurrently. Abramski thereafter
filed a timely notice of appeal.
II.
We review de novo legal issues relating to statutory con-
struction. United States v. Broncheau, 645 F.3d 676, 683 (4th
6
From our assessment of the briefs, the government appears to consider
the district court’s denial of the second dismissal motion to be a subject
of this appeal. See Br. of Appellee 6 (citing district court’s April 25, 2011,
decision denying second dismissal motion). We emphasize, however, that
Abramski has, on the dismissal point, only appealed the denial of his first
dismissal motion, which was disposed of from the bench on March 14,
2011. See Br. of Appellant 3 (recognizing that Abramski’s second dis-
missal motion was "based upon administrative deficiencies," and was
denied, and advising that "Abramski does not raise this issue on appeal").
7
Rule 11(a)(2) of the Federal Rules of Criminal Procedure provides, in
pertinent part, that:
With the consent of the court and the government, a defendant
may enter a conditional plea of guilty[,] reserving in writing the
right to have an appellate court review an adverse determination
of a specified pretrial motion.
Fed. R. Crim. P. 11(a)(2).
UNITED STATES v. ABRAMSKI 9
Cir. 2011). In evaluating a district court’s denial of a motion
to suppress evidence, we review the court’s factual findings
for clear error and its legal determinations de novo. United
States v. Doyle, 650 F.3d 460, 466 (4th Cir. 2011). In evaluat-
ing a probable cause issue with respect to a search warrant,
we assess whether the magistrate judge had a "substantial
basis" for concluding that probable cause existed. Illinois v.
Gates, 462 U.S. 213, 238-39 (1983).
III.
We must first address a potential procedural defect that
could impact our jurisdiction in this appeal. This court has
recognized that, pursuant to Rule 11(a)(2) of the Federal
Rules of Criminal Procedure, the "‘direct review of an
adverse ruling on a pretrial motion is available only if the
defendant expressly preserves that right by entering a condi-
tional guilty plea.’" See United States v. Bundy, 392 F.3d 641,
645 (4th Cir. 2004) (quoting United States v. Wiggins, 905
F.2d 51, 52 (4th Cir. 1990). Indeed, we have observed that,
"[a]bsent a valid conditional guilty plea, we will dismiss a
defendant’s appeal from an adverse pretrial ruling on a non-
jurisdictional issue." Bundy, 392 F.3d at 645.
In order for a defendant to pursue an appeal after a Rule
11(a)(2) conditional guilty plea, the relevant agreement must
be in writing and must identify the specific pretrial rulings
that the defendant intends to appeal. These requirements serve
to "document that a particular plea was in fact conditional,
and . . . identify precisely what pretrial issues have been pre-
served for appellate review." Fed. R. Crim. P. 11 advisory
committee’s note. As we have explained, the "conditions must
be expressly described in writing, or at least so clearly shown
on the record that there is no doubt that a conditional plea was
agreed to." Bundy, 392 F.3d at 645.
Abramski’s plea agreement identifies only one adverse rul-
ing that he intends to appeal, and that ruling was made on
10 UNITED STATES v. ABRAMSKI
June 28, 2011, the day prior to his guilty pleas. The plea
agreement describes the conditional nature of his guilty pleas
as follows:
I understand that the United States consents to my
making of a conditional plea of guilty in this case in
accordance with Rule 11(a)(2) of the Federal Rules
of Criminal Procedure. I reserve the right to appeal
any and all adverse rulings of the court to date, to
specifically include the court’s oral ruling at a
charge conference in chambers yesterday, June 28,
that the subsequent legal transfer of the firearm in
question from the defendant Abramski to his uncle
Angel "Danny" Alvarez, in Pennsylvania, does not
negate the illegality of the defendant’s acts in acquir-
ing the firearm from a federally licensed firearm
dealer in Virginia.
J.A. 575 (handwritten additions emphasized). Although the
issue resolved by the first dismissal motion is fairly framed in
the plea agreement, the agreement misidentifies the ruling at
the June 28 charge conference, rather than the court’s denial
of the first dismissal motion, as the issue sought to be
appealed. Perhaps more significantly, an appeal of the sup-
pression rulings is not mentioned in the plea agreement.
During the plea hearing, the issues reserved for appeal were
not specified on the record, although the district court and the
prosecutors briefly discussed alterations of the plea agree-
ment, presumably for the purpose of specifying issues that
could be appealed. The court suggested the following:
if it makes it any simpler, why don’t you just change
[the conditional plea] to read that the defendant
reserves the right to appeal all pretrial legal rulings
that the Court has made? Why is it necessary that we
have more complicated language? Couldn’t you just
agree to that?
UNITED STATES v. ABRAMSKI 11
J.A. 520. In response, the government agreed to the court’s
suggestion. Based on this dialogue, it is evident that the par-
ties anticipated that the defendant could appeal court rulings
other than the single one specified in the plea agreement. Rule
11(a)(2) and our precedent are clear, however, that the issues
to be appealed after a conditional guilty plea should be speci-
fied in writing, or, at the very least, clearly stated on the
record. Nevertheless, because the court and the government
orally agreed in broad terms to Abramski’s conditional pleas,
we are satisfied to address the merits of his appeal on the first
dismissal motion and the first motion to suppress. Accord-
ingly, we possess jurisdiction pursuant to 28 U.S.C. § 1291.
A.
1.
Abramski first contends that the district court erred in
denying his motion to dismiss the charges in the indictment,
and in ruling that Abramski’s purchase of the Glock 19 hand-
gun constituted a straw purchase that violated 18 U.S.C.
§§ 922(a)(6) and 924(a)(1)(A). Abramski maintains that,
because he and Alvarez were both legally entitled to purchase
such a firearm, he was not a "straw purchaser" and his "Yes"
answer on the ATF Form 4473 — representing that he was
the "actual buyer" thereof — was not material and was never
intended to be punished by the Gun Control Act of 1968, or
by §§ 922(a)(6) or 924(a)(1)(A). Indeed, Abramski asserts
that Congress’s intent in enacting those statutes was "to make
it possible to keep firearms out of the hands of those not
legally entitled to possess them." Br. of Appellant 12. Under
Abramski’s theory, he could only be prosecuted for his Vir-
ginia acquisition of the Glock 19 handgun if Alvarez had been
ineligible to possess a firearm, e.g., a convicted felon, thereby
rendering the "actual buyer" question on the ATF Form 4473
"material to the lawfulness of the sale." See 18 U.S.C.
§ 922(a)(6). On the legal proposition pursued by Abramski,
there appears to be a split in the courts of appeals. At least
12 UNITED STATES v. ABRAMSKI
three of our sister circuits have heretofore addressed the issue,
and one of them seems to agree with Abramski.
In support of his position, Abramski relies on the Fifth Cir-
cuit’s decision in United States v. Polk, 118 F.3d 286 (5th Cir.
1997). In that case, the court of appeals assessed whether
§ 922(a)(6) liability attached where "the true purchaser [here,
Alvarez] can lawfully purchase a firearm directly." Id. at 295.
The Fifth Circuit determined that it did not, ruling that
the plain language of the statute compels the conclu-
sion . . . that § 922(a)(6) criminalizes false state-
ments that are intended to deceive federal firearms
dealers with respect to facts material to the "lawful-
ness of the sale" of firearms. . . . Thus, if the true
purchaser can lawfully purchase a firearm directly,
§ 922(a)(6) liability (under a "straw purchase" the-
ory) does not attach.
Id. (emphasis in original).
Put simply, we are unable to agree with Polk. It is clear to
us that the prohibition against false and fictitious statements
in § 922(a)(6) is not limited to those persons who are prohib-
ited from buying or possessing a firearm. To establish a viola-
tion of § 922(a)(6), the prosecution is obligated to prove four
elements: "(1) the defendant knowingly made (2) a false or
fictitious oral or written statement that was (3) material to the
lawfulness of the sale or disposition of a firearm, and was (4)
intended to deceive or likely to deceive a firearms dealer."
United States v. Harvey, 653 F.3d 388, 393 (6th Cir. 2011).
The straw purchaser issue goes directly to the third of these
essential elements — materiality.
Abramski’s contention that § 922(a)(6) does not apply to a
firearm transaction involving two eligible purchasers was
recently rejected by the Sixth Circuit in United States v.
Morales, 687 F.3d 697 (6th Cir. 2012). In that case, the court
UNITED STATES v. ABRAMSKI 13
also took issue with the reasoning of Polk and agreed with the
Eleventh Circuit’s decision in United States v. Frazier, 605
F.3d 1271, 1280 (11th Cir. 2010). In Frazier, the court of
appeals had likewise rejected Polk, explaining its decision in
language that we readily approve:
[t]o say that the identity of the actual purchaser is
material to the lawfulness of one sale but not to
another, is counterintuitive. Although Polk focused
on whether one’s identity affected the lawfulness of
a sale under § 922(a)(6), we focus on whether one’s
identity is a fact that is material to the lawfulness of
a sale. The identity of the purchaser is a constant
that is always material to the lawfulness of the pur-
chase of a firearm under § 922(a)(6). Thus, it can be
reasoned that although the lawfulness of a sale may
change depending on the identity of the purchaser,
the fact that the identity of the purchaser is material
to the lawfulness of the sale does not.
Id. (emphasis added).
In denying Abramski’s first dismissal motion from the
bench on March 14, 2011, the court relied on the Frazier case,
expressing concern that Abramski’s theory "creates an extra
element in the prosecution of the offense" in that the govern-
ment would have to "prove that the middleman, in this case
[Abramski], knew that a subsequent purchaser was a prohib-
ited person." J.A. 266. The court rejected that theory, ruling
that "both counts of the indictment are legally sound. It seems
to me that, if the government is able to prove what the grand
jury has alleged in the indictment, that the defendant would
be in violation of these two statutes." J.A. 276. In sum, we are
satisfied that the Sixth and Eleventh Circuits, as well as the
district court, correctly and properly ruled that the identity of
the actual purchaser of a firearm is a constant that is always
material to the lawfulness of a firearm acquisition under
§ 922(a)(6).
14 UNITED STATES v. ABRAMSKI
The ATF Form 4473, as completed and signed by Abram-
ski, warned him — in bold type — that he was not the actual
buyer of the Glock 19 handgun if he was buying it for some-
one else. And the undisputed facts show that Abramski’s
transfer of the Glock 19 to Alvarez was not an afterthought.
On this record, that transfer was a carefully calculated event
— indeed, it was the sole reason for Abramski’s purchase of
the Glock 19 handgun. Because the identity of the actual pur-
chaser of the handgun was material to the lawfulness of its
acquisition by Abramski on November 17, 2009, he made a
false and fictitious statement to the licensed dealer when he
answered "Yes" to question 11.a. on the ATF Form 4473,
assuring the dealer that he was the actual buyer.
2.
Turning to Count Two, § 924(a)(1)(A) of Title 18 criminal-
izes "any false statement or representation with respect to the
information required by this chapter to be kept in the records
of a person licensed under this chapter." 18 U.S.C.
§ 924(a)(1)(A). To establish a violation of § 924(a)(1)(A), the
government must prove that: (1) the dealer was a federally
licensed firearms dealer at the time the offense occurred; (2)
the defendant made a false statement or representation in a
record that the licensed firearm dealer was required by federal
law to maintain; and (3) the defendant made the false state-
ment with knowledge of its falsity. This statutory provision
does not require that the falsehood on the ATF Form 4473
relate to the lawfulness of the firearm acquisition itself.
Although Abramski argues that his "Yes" answer to question
11.a. on the Form 4473 was not material to the recordkeeping
requirements of § 924(a)(1)(A), the plain statutory language
is unambiguous, and it does not require a showing of materi-
ality. See United States v. Johnson, 680 F.3d 1140, 1144 (9th
Cir. 2012) ("the text of § 924(a)(1)(A) unambiguously
describes which false statements and representations it pro-
hibits — simply those that are made with respect to informa-
tion that is required to be kept by federally licensed firearms
UNITED STATES v. ABRAMSKI 15
dealers"); United States v. Sullivan, 459 F.2d 993, 994 (8th
Cir. 1972) ("While a violation of 18 U.S.C.A. § 922(a)(6)
expressly requires a showing of materiality no such expres-
sion is found in § 924(a).").
3.
In sum, the assertion that Abramski was the actual buyer of
the Glock 19 handgun was a false and fictitious answer to
question 11.a. of the ATF Form 4473, and that false statement
was material to the lawfulness of the Virginia sale of the
handgun. Moreover, the identity of the actual purchaser of the
Glock 19 handgun was a fact required to be maintained by the
Virginia firearms dealer that sold the firearm. By virtue of the
bold-print warning on question 11.a. of the ATF Form 4473,
Abramski was on notice that he was not the actual buyer of
the handgun if he was purchasing it for someone else.
Accordingly, the district court properly denied Abramski’s
motion to dismiss both charges of the indictment.
B.
Abramski next contends that the second search warrant
(relating to the Iron Ridge Road property), was defectively
issued and not supported by probable cause. As a result, he
maintains that the agents’ seizure of the receipt concerning his
transaction with Alvarez from the Iron Ridge Road residence
exceeded the scope of that warrant.
As spelled out above, the FBI agents executed two search
warrants in their robbery investigation of Abramski. They
first searched his parents’ home on Highland Farm Road in
Calloway, and the results of that search led them, at least in
part, to also search Abramski’s marital home on Iron Ridge
Road in Rocky Mount. Abramski argues on appeal, first, that
the affidavit for the search warrant for the Iron Ridge Road
property was legally insufficient. Additionally, Abramski con-
tends that execution of the search warrant for the Iron Ridge
16 UNITED STATES v. ABRAMSKI
Road property contravened the warrant’s directives, resulting
in an unconstitutional seizure of the receipt for Abramski’s
transfer of the Glock 19 handgun to Alvarez.
1.
The affidavit supporting the search warrant for the High-
land Farm Road property included information about what the
bank robber was wearing, what he carried, and the vehicle he
was driving (a blue Ford Explorer). The affidavit shows that
one of the bank tellers picked Abramski’s picture from a
photo lineup as a "suspicious white male who visited the
bank" several days before the robbery. J.A. 230. The affidavit
explained that when Abramski made his purchase of the
Glock 19 handgun at Town Police Supply, he paid in cash
from a green zippered money pouch with white lettering. It
also demonstrated that Abramski had limited financial
resources and had been discharged by the Roanoke police
department because he was believed to have stolen money
during an investigation. Among other details, the affidavit
revealed that Abramski had tested a green Ford Explorer on
the day of the robbery.
During the search on Highland Farm Road, Abramski’s
father told the officers that Abramski had only been living
there for about a week. The affidavit supporting the search
warrant for the Iron Ridge Road property included informa-
tion that Abramski may have left his belongings at that resi-
dence. The affidavit explained that the agents had already
seized inculpatory evidence in the Highland Farm Road
search, including a "green zippered money pouch," and speci-
fied that the application for the Iron Ridge Road warrant
"does not seek authority to seize these items." Nevertheless,
one of the agents conducting the search at Iron Ridge Road
found an additional green zippered money bag from Franklin
Community Bank. The receipt for the transfer to Alvarez of
the Glock 19 handgun was found and seized from inside that
bag.
UNITED STATES v. ABRAMSKI 17
Following the suppression hearing conducted on March 14,
2011, the district court ruled from the bench that "both war-
rants were valid and that the items seized pursuant to those
search warrants are properly admitted." J.A. 310. The court
then concluded that "[c]learly there’s probable cause for both
search warrants."8 Id.
2.
A judicial officer’s determination of probable cause is enti-
tled to "great deference" by a reviewing court. See Illinois v.
Gates, 462 U.S. 213, 236 (1983). "The probable cause stan-
dard ‘is not defined by bright lines and rigid boundaries’ but
‘allows a [judicial officer] to review the facts and circum-
stances as a whole and make a common sense determination’
whether there is a fair probability that evidence of a crime
will be found." United States v. Wellman, 663 F.3d 224, 228
(4th Cir. 2011) (quoting United States v. Grossman, 400 F.3d
212, 217 (4th Cir. 2005)).
The prosecution maintains that the district court’s suppres-
sion ruling must be affirmed, arguing that the "catch-all"
clause in the search warrant for the Iron Ridge Road property
required seizure of the receipt. It asserts that the green Frank-
lin Community Bank money bag fell within that clause, as did
the handgun receipt, because the officers then believed that
Abramski had robbed the bank with a Glock handgun. The
United States also contends that, in any event, the green bag
was in plain view, and that the officers were entitled to seize
it because its incriminating character was readily apparent.
The prosecutors finally argue that the good faith exception
applies, even if the search warrant was based on stale evi-
dence and seizure of the green bag was somehow improper.
8
Finally, in the alternative, the court determined that, "even if the war-
rants were too broad or somewhat stale, I think that the officers were enti-
tled to, in good faith, rely on the issuance of the warrants in conducting
the searches. So even if the probable cause is somewhat weak, I think
good faith protects the outcome of the searches." Id. at 310-11.
18 UNITED STATES v. ABRAMSKI
a.
First and foremost, it is clear to us that the Iron Ridge Road
search warrant was supported by probable cause. The support-
ing affidavit for that warrant connected Abramski to the
Rocky Mount bank robbery in several ways:
• Abramski was flagged as a suspicious customer
at the bank just a few days before the robbery;
• He was having financial difficulties;
• He had been fired by the police department for
allegedly stealing money;
• He was about the same height as the robber;
• Abramski was seen wearing a watch and jacket
similar to those worn by the robber;
• He had tested a green Ford Explorer on the day
of the robbery, and the witnesses asserted that the
robber made his getaway in a blue Ford Explorer;
and
• Abramski had purchased firearms with a large
amount of cash after the bank robbery.
In these circumstances, there was a substantial basis for the
magistrate judge to conclude that probable cause existed for
the search of Abramski’s residence on Iron Ridge Road.
b.
Finally, we reject Abramski’s challenge to the scope of the
search warrant for the Iron Ridge Road residence. The agents
were then investigating the robbery of Franklin Community
Bank, which had been carried out with a firearm similar to a
UNITED STATES v. ABRAMSKI 19
Glock 19 handgun. When the agents discovered the green zip-
pered bag bearing the Franklin Community Bank logo, and
when they found inside that bag the receipt for Alvarez’s pur-
chase of the Glock 19 handgun, such evidence had to be
seized. In these circumstances, the Iron Ridge Road warrant
was properly issued, and the agents’ seizure of the receipt was
not unconstitutional. The district court therefore did not err in
declining to suppress that evidence.9
IV.
Pursuant to the foregoing, the judgment of the district court
is affirmed.
AFFIRMED
9
In his reply brief, Abramski asserts that neither of the affidavits sup-
porting the search warrant demonstrates that the agents believed the items
sought would be found at Abramski’s residence seven months after the
robbery. Rep. Br. of Appellant 5. Inasmuch as this is a staleness argument
concerning the timeliness of the warrants, we need not address it, in that
it was abandoned by not being raised in Abramski’s opening brief on
appeal. See United States v. Al-Hamdi, 356 F.3d 564, 571 n.8 (4th Cir.
2004) (recognizing that "contentions not raised in the argument section of
the opening brief are abandoned").