Boston, MA - Criminal defense lawyer represented defendant with a making false statements during the purchase of a firearm charges.
We recount the facts, most of which are undisputed, as
the jury could have found them. In November 2015, the Boston
Police Department ("BPD") recovered and transferred to the Federal
Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") a Glock
.45 caliber pistol with serial number YVT194. ATF agents traced
the firearm's ownership to David Ilnicki, who had reported the gun
stolen about a month earlier. Ilnicki told police that the gun
was a "gift" from a "friend." ATF's investigation revealed that
the original purchaser of the firearm ("the Ilnicki gun") was
Karani met Ilnicki while working police details at
nightclubs in Boston where Ilnicki worked as a security manager
and promoter. Ilnicki testified that he initially sought to build
a rapport with Karani to ensure security ran smoothly at the clubs,
but they eventually became friends. In August 2015, Ilnicki asked
Karani via text message whether Karani knew if any BPD officers
were selling unwanted firearms at a discounted price. Karani
responded that he would "hook [Ilnicki] up." The pair discussed
the various firearms of interest to Ilnicki, who ultimately settled
on a Glock, model 30S, .45 caliber pistol.
That model did not meet Massachusetts' consumer safety
standards and, therefore, could be purchased from an FFL in
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Massachusetts only by qualified law enforcement officers, which
precluded Ilnicki from purchasing the gun on his own. See Mass.
Gen. Laws ch. 140, § 123 (prohibiting the sale of certain
categories of firearms in Massachusetts); 501 Mass. Code Regs. §
7.02 (identifying the categories of firearms that are prohibited);
see also 18 U.S.C. § 926B (providing that, "[n]otwithstanding any
other provision of the law of any State . . . a qualified law
enforcement officer . . . may carry a concealed firearm that has
been shipped or transported in interstate commerce," except
machine guns, firearm silencers, or other destructive devices).
As a police officer, however, Karani could purchase the pistol and
was also eligible to receive a manufacturer discount.2 With the
discount, Karani paid $530 to purchase the Ilnicki Gun from
Precision Point Firearms, a federal firearms licensee ("FFL")
located in Woburn, Massachusetts.
To complete the purchase of the gun, Karani filled out
ATF Form 4473, a document that FFLs must use to gather the details
that they are required by federal law to report about persons
purchasing firearms. See 18 U.S.C. § 923(g); 27 C.F.R. § 478.124.
That data includes the purchaser's name, address, date of birth,
2 In particular, Karani was eligible for Glock, Inc.'s "Blue
Label Program," which offers members of law enforcement,
firefighters, paramedics, and military personnel a $75-$100
discount on certain Glock pistols. See GLOCK Blue Label Program,
GLOCK, Inc., https://us.glock.com/buy/blue-label-program (last
visited Nov. 17, 2020).
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ethnicity, height, and weight. Form 4473 also assists FFLs in
collecting the information needed for the criminal background
checks required under federal law.
Form 4473 also contains a series of questions intended
to assess whether an individual may lawfully purchase and possess
a firearm. For example, Questions 11.c. and 11.k. ask whether the
potential purchaser is a felon or illegally present in the United
States, statuses that preclude the possession of a firearm. See
18 U.S.C. § 922(g)(1),(5)(A). Of relevance to this case, Question
11.a. asks whether an individual is "the actual transferee/buyer"
of the firearm. Question 11.a. also offers the following
admonition: "Warning: You are not the actual buyer if you are
acquiring the firearm(s) on behalf of another person. If you are
not the actual buyer, the dealer cannot transfer the firearm(s) to
you. (See Instructions for Question 11.a.)." The associated
Question 11.a. Actual Transferee/Buyer: For
purposes of this form, you are the actual
transferee/buyer if you are purchasing the
firearm for yourself or otherwise acquiring the
firearm for yourself (e.g., redeeming the
firearm from pawn/retrieving it from
consignment, firearm raffle winner). You are
also the actual transferee/buyer if you are
legitimately purchasing the firearm as a gift
for a third party. ACTUAL TRANSFEREE/BUYER
EXAMPLES: Mr. Smith asks Mr. Jones to purchase
a firearm for Mr. Smith. Mr. Smith gives Mr.
Jones the money for the firearm. Mr. Jones is
NOT THE ACTUAL TRANSFEREE/BUYER of the firearm
and must answer "NO" to question 11.a. The
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licensee may not transfer the firearm to Mr.
Jones. However, if Mr. Brown goes to buy a
firearm with his own money to give to Mr. Black
as a present, Mr. Brown is the actual
transferee/buyer of the firearm and should
answer "YES" to question 11.a.
The answer to Question 11.a. must be "Yes" for the sale
to proceed; that is, the individual filling out the form must
attest that he is the actual transferee/buyer of the gun. As the
instructions explain, an individual falls into that category if he
purchases the gun either for himself or as a gift for a third
party. The Form does not, however, ask an individual to identify
which of those two scenarios applies.3
In September 2015, Karani checked "Yes" in response to
Question 11.a., attesting that he was the "actual
transferee/buyer" of the Ilnicki gun. He did not indicate to the
FFL whether he was purchasing the firearm for himself or as a gift
and the FFL did not ask.
In addition to Form 4473, Karani also signed an
"Affidavit in Support of Handgun Purchase for Official Duty" ("the
Ilnicki Affidavit" or "the Affidavit"). By signing the Affidavit,
Karani swore, under penalty of perjury, that he was purchasing the
3 If an FFL nonetheless becomes aware during a transaction
that the individual is purchasing a firearm as a gift, the FFL
might, as a matter of practice, keep the firearm in the store until
the recipient picks it up, at which point the recipient himself
will complete ATF Form 4473 and undergo a background check. There
does not seem to be any law or regulation that explicitly requires
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firearm to "directly or indirectly supply [himself] with a handgun
for [his] official duties as a law enforcement official or member
of the United States military."4
Either before or shortly after Karani purchased the gun,
Ilnicki provided Karani confirmation of his firearms license and
paid Karani $500 in cash. Ilnicki testified that he intended to
give Karani $530, but the ATM would allow him to take out only
$500. When Ilnicki said he would owe Karani $30, Karani responded
that Ilnicki could make up the difference with a round of drinks.
When Karani completed the documents to transfer the gun
to Ilnicki, he entered the incorrect serial number.5 That serial
number -- XRF158 -- belonged to another Glock firearm that was
4 The FFL testified at trial that the Affidavit was prepared
by his attorney for the FFL's own "peace of mind" and to protect
him from liability under state law by confirming Karani's status
as a law enforcement officer. In closing, however, defense counsel
argued that the sole purpose of the Affidavit was to confirm
Karani's eligibility for the Glock discount. Although the impetus
for the Affidavit is thus somewhat unclear, this uncertainty does
not affect the issues presented in this case. The Affidavit was
withdrawn from the jury's consideration for the reasons explained
infra in Section I.F.
5 Mass. Gen. Laws ch. 140, §§ 128A and 128B require all gun
sales, transfers, inheritances, or losses to be reported to the
Massachusetts Department of Criminal Justice Information Services
Firearms Records Bureau through the online Massachusetts Gun
Transaction Portal. See Massachusetts Gun Transaction Portal,
app_action=presentHome (last visited Nov. 4, 2020). The required
information includes a detailed description of the transferred
weapon (caliber, make, model, and serial number) and the name and
address of both the seller/transferor and buyer/transferee. Mass.
Gen. Laws ch. 140, § 128B.
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purchased by Karani less than a year earlier and was transferred
to another individual, Joseph DePasquale, just two days after its
purchase. The timing of that transfer aroused ATF's suspicion and
led agents to investigate whether Karani had unlawfully purchased
the gun on behalf of DePasquale.
B. The DePasquale Transfer
Like Ilnicki, Karani knew DePasquale through working in
the Boston nightlife industry. DePasquale's father owned various
restaurants and nightclubs in Boston for which Karani regularly
provided police detailing services. DePasquale testified that,
after he told Karani that he was getting his gun license, Karani
offered to help him purchase a firearm at a law enforcement
discount. Based on DePasquale's preferences, Karani purchased a
Glock, model 27, .40 caliber pistol ("the DePasquale gun") in
November 2014, from FFL North Shore Firearms, LLC, in Middleton,
Massachusetts. DePasquale was prohibited from purchasing that
model Glock on his own because it could be purchased from an FFL
in Massachusetts only by qualified law enforcement officers for
the same reasons described above with respect to the Ilnicki gun.
See Mass. Gen. Laws ch. 140, § 123; 501 Mass. Code Regs. § 7.02;
see also 18 U.S.C. § 926B. Karani also purchased a holster for
the DePasquale gun.
Karani completed and signed an ATF Form 4473 for the
DePasquale gun identical to the one described above with respect
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to the Ilnicki gun. Karani similarly checked "Yes" to Question
11.a. He also signed a document titled "Certification Letter,"
stating, not under penalty of perjury, that he was a law
enforcement officer purchasing the firearm for "on or off duty use
and . . . not . . . for resale."6
On November 19, 2014, Karani sent DePasquale a text
message stating: "picked up your piece today. gotta good deal on
it. . . . came out to $500 w/tax. should wait a few days before
we do the transfer." DePasquale agreed to pay Karani the "exact
amount" and sent Karani a picture of his valid firearms license.
On November 21, Karani completed the paperwork to transfer
ownership of the firearm to DePasquale.
A week later, Karani transferred physical possession of
the gun to DePasquale and arranged for payment at a later date.
6 At trial, a seventeen-year ATF veteran explained the
function of the Letter somewhat inconsistently. Compare Docket
No. 106, at 136 (explaining that the Letter was prepared by the
wholesaler/distributor and had the dual effect of confirming
Karani was a law enforcement officer eligible to purchase a gun
that was otherwise prohibited under Massachusetts law, and
providing assurance to the manufacturer that Karani was eligible
to receive the manufacturer's law enforcement discount), with
Docket No. 106, at 141-42 (explaining that the Letter was not
prepared for the manufacturer to confirm eligibility for the
discount, but instead was a form that an FFL is required by
Massachusetts law to keep in his records). For reasons we will
explain infra at note 14, however, the origin and purpose of the
Certification Letter do not impact our analysis of the issues
presented in this appeal.
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DePasquale ultimately paid Karani $540, which was the total cost
of the firearm and holster with Karani's law enforcement discount.
C. The Indictment
In April 2017, Karani was indicted on four counts of
knowingly making a false statement in connection with purchasing
a firearm. Counts 1 and 2 alleged violations of 18 U.S.C.
§ 922(a)(6), which makes it unlawful for any individual "knowingly
to make any false or fictitious oral or written statement . . .
with respect to any fact material to the lawfulness" of a federal
firearms sale. Counts 3 and 4 alleged violations of 18 U.S.C.
§ 924(a)(1)(A), which provides that whoever "knowingly makes any
false statement . . . with respect to the information required
. . . to be kept in the records" of an FFL, "shall be fined[,]
. . . imprisoned not more than five years, or both."
Counts 1 and 3 involved Karani's purchase of the
DePasquale gun under the respective statutes. Count 1 alleged
that Karani made two false statements in violation of § 922(a)(6):
(1) by claiming that he was the "actual transferee/buyer" of the
DePasquale gun on the ATF Form 4473 that he completed at the time
of purchase; and (2) by stating on the Certification Letter that
he was purchasing the DePasquale gun for "official use and not for
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resale."7 Count 3 alleged that Karani's statement on the ATF Form
4473 alone also violated § 924(a)(1)(A).
Counts 2 and 4 involved Karani's purchase of the Ilnicki
gun under the respective statutes. Count 2 alleged that Karani
made two false statements in violation of § 922(a)(6): (1) by
asserting that he was the "actual transferee/buyer" of the Ilnicki
gun on the ATF Form 4473 that he completed at the time of purchase;
and (2) by claiming on the Ilnicki Affidavit that he was
"indirectly or directly" purchasing the gun for "official use."
Count 4 alleged that Karani's statement on the ATF Form 4473 alone
also violated § 924(a)(1)(A).
D. Karani's Defense at Trial
In his opening statement, Karani presented the essence
of his defense: he "reasonably view[ed] the transfer of the two
firearms at the police discount as being a gift to his friends"
within the meaning of Form 4473. On the third day of trial,
however, the court informed counsel that it intended to charge the
jury "that [Form 4473] pertains to a transfer of a gun or gift of
a gun, not of a discount, and that it is not a defense to the case
to say that Karani was giving a discount." Defense counsel
objected to no avail, arguing that the court was upending the
7 The indictment incorrectly quotes the Certification Letter,
which actually states that the gun was purchased for "on or off
duty use and . . . not . . . for resale." This discrepancy is
discussed in further detail infra in Section II.E.
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defense and that whether the "gift" in ATF Form 4473 refers to the
gun itself or the transfer of a discount was a factual question
for the jury to decide.
Testifying on the fourth day of trial, Karani conceded
that he never intended to keep either the DePasquale or the Ilnicki
gun. In both instances, he intended to use his law enforcement
status to purchase a gun at a discounted price for a friend.
Despite the court's warning that it would instruct the jury that
the discount was not a gift, Karani maintained that he was truthful
in his purchases because he reasonably believed that the discount
constituted a gift. Recognizing that the court's previewed
instruction foreclosed that defense, Karani also testified that
the guns themselves were gifts because he transferred them without
profit, was reimbursed only after he had purchased the guns with
his own money, was not reimbursed fully for the Ilnicki gun, and
was not compensated for his time or travel expenses.
E. Jury Instructions
The district court instructed the jury on the fifth day
of trial. The court began by explaining that Karani was indicted
on four counts of knowingly making a false statement under two
different statutes, with respect to two different purchases. In
defining a "gift" ("the gift instruction"), the court stated:
Now, Form 4473 describes an actual buyer/transferee
as one who buys a firearm for his own use or one
who legitimately buys a firearm as a gift for [a]
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third party. A "gift" means something that is
voluntarily transferred to someone without payment,
without compensation. In Form 4473, "gift" refers
to the firearm, not the discount.
The court further explained that the jury had to decide Karani's
intent ("the actual purchaser instruction"):
Was [Karani] buying the firearm for himself or as
a gift for someone else or did he buy it for another
with the intention to transfer the gun to that
person with the expectation that the person would
pay for it and did so, in which case he is not the
The court pointed out that Karani was charged with making
two false statements concerning each purchase in Counts 1 and 2:
one each on ATF Form 4473 and a supporting document. The court
informed the jury that, even though the indictment alleged that
Karani made both false statements for each gun purchase, there is
an indictment convention that "and" means "or" and "or" means
"and."8 Accordingly, the court explained, "the [g]overnment d[id]
not have to prove . . . that the [d]efendant made a false statement
in two documents."9 The court further informed the jury that "all
12 of you have to be in agreement as to one or the other or both;
8 The parties cite no such generally applicable indictment
convention. See infra at note 31.
9 This instruction, when read in the context of the complete
jury charge, sought to inform the jury that, even though Counts 1
and 2 each alleged two separate false statements (one each in ATF
Form 4473 and a supporting document), the government needed to
prove only one false statement on each count in order to sustain
a conviction on that count.
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that if all of you do not agree that the [d]efendant made a false
statement in at least one of these documents and which one, you
must find him not guilty."
Following the jury charge, defense counsel objected only
to the court's gift instruction.
F. Questions from the Jury
On the first afternoon of deliberations, the jury
submitted three questions to the court, two of which are relevant
to this appeal: (1) "Under which counts is a false statement on a
4473 a violation?" and (2) "Under which counts would a false
statement on the affidavits signed at the FFL(s) (not the 4473) be
a violation?"10 After a lengthy discussion with counsel, the court
responded: (1) "[O]n all counts, 1 through 4, a false statement on
Form 4473 is a violation of law";11 and (2) "Count 1 is the only
count that references an affidavit on which the [d]efendant is
accused of representing that the 'purchase was for official use
and not for resale.'"12
10 The third question asked for a transcript of Karani's
testimony, which the court informed the jury was not yet available.
11 As noted, there were two ATF Form 4473s at issue: one
involving the DePasquale gun on Counts 1 and 3 and one involving
the Ilnicki gun on Counts 2 and 4.
12 Although the court used the term "affidavit," it was
referencing the Certification Letter in Count 1. The implications
of the court's misuse of the word affidavit are discussed infra in
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This explanation modified an earlier instruction of the
court that a conviction could be sustained on Count 2 for the
Ilnicki gun based on either the ATF Form 4473 or the Ilnicki
Affidavit.13 The court's revised instruction left only the ATF
Form 4473 as grounds for conviction on Count 2, but left Count 1
untouched. For the DePasquale gun, the subject of Count 1, either
the ATF Form 4473 or the Certification Letter could sustain a
conviction. Defense counsel objected to this modification,
insisting that the court's logic on Count 2 applied equally to
Count 1, and that a false statement on an ATF Form 4473 was
necessary for a conviction on either count. Specifically, defense
counsel argued that because the Certification Letter was not
required for the sale to proceed under federal law, a false
statement on the Certification Letter was not an independent basis
for a conviction on Count 1.14
13 After much back and forth with counsel, the court decided
that the Affidavit cited in Count 2 was too "broad" to be submitted
to the jury because, unlike the Certification Letter, it did not
include a statement that Karani was not purchasing the gun for
resale. This supplemental instruction triggered several
additional questions from the jury relating to the Count 2
Affidavit. As we shall further explain at the end of this section,
that back and forth affected the jury's ultimate task on each
14 On appeal, Karani no longer argues that the Certification
Letter could not support a conviction on Count 1, which charged a
violation of 18 U.S.C. § 922(a)(6). He argues only that the
court's original and supplemental instructions regarding the
Certification Letter were incorrect and confused the jury. The
rationale for this change of position seems clear. To prove a
violation of § 922(a)(6), the government needed to prove that an
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Approximately one hour later, the jury submitted two
additional questions not relevant to this appeal.15 Less than a
half hour after the court answered those questions, the jury posed
two additional questions, one of which is relevant here:16
Count 2 on the indictment indicated that [Karani]
signed an affidavit that the purchase was for
official use. Per your first note, you said only
Count 1  references the affidavit. The second
count would fall to a unanimous vote if the
affidavit is relevant. So, we just want to check
on if that would be true.
After another lengthy conversation with counsel, the
court concluded that it would not retract its previous instruction
oral or written statement was made knowingly, was false, and was
material to the lawfulness of a federal firearms sale. 18 U.S.C.
§ 922(a)(6). Unlike its counterpart, § 924(a)(1)(A), there is no
requirement in § 922(a)(6) that the statement be made in a record
required by law to be kept by an FFL. Neither is there any
requirement that the statement be made in a form required by law
or even be one that an individual was required by state or federal
law to make. Id. The manner or form of a knowingly false statement
is irrelevant so long as the statement is material to the lawful
sale of the firearm. Id. Assuming, then, that the statement in
the Certification Letter was material to the lawfulness of the
sale, a proposition which Karani does not challenge, it was
actionable under § 922(a)(6).
15 In the first question, the jury requested a copy of the
indictment, which the court provided. In the second question, the
jury again asked for a transcript of Karani's testimony and also
requested a transcript of the testimony of one of the government's
witnesses. The court informed the jury that the requested
transcripts could not be prepared "within a reasonable time."
16 In the additional question, the jury asked the court
"[p]ursuant to [its] last answer, what [qualifies as] a 'reasonable
time'" for the requested transcripts. The court provided the
requested transcripts to the jury the following business day.
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directing the jury to disregard the Ilnicki Affidavit in Count 2.
Yet, given the jury's continuing confusion about the focus of its
deliberations, the court deemed it appropriate to provide the jury
with the following supplemental verbal instruction:
All of the Counts, 1, 2, 3 and 4, allege that the
false statement was that the [d]efendant was the
actual purchaser, and that was made on Form 4473.
Now, for each count, it's the same allegation on
each count and the same form for each count. Count
1 also alleges substantially the same false
statement on an affidavit that says that he bought
for official use and not for resale.
For purposes of 4473, in all counts he is an actual
purchaser if he buys for his own use or is buying
to make a gift of the firearm to someone else. For
purposes of the affidavit in Count 1, he is a buyer
if he bought for official use and not for resale.
Those are the facts that you need to examine the
evidence, as to which you need to examine and as to
which you make a determination. Did he buy for his
own use or did he buy for official use or did he
buy for resale. . . .
So that is really what I can explain to you. I'm
not sure I can give you a whole lot more explanation
and now the question for you is does that explain
enough for you to be able to determine your verdict?
The foreperson responded "No," and again asked about the
Ilnicki Affidavit and its relation to Count 2. The court
responded: "Don't worry about Count 2. The affidavit in Count 2
you can ignore." To clarify further the jury's task, the court
explained that the jury
should first look at 4473 and see whether [Karani]
falsely made a statement on that. If you find he
did not, then in Count 1 go to the affidavit. And
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if he did not with respect -- if you find that he
did not make a false statement under the affidavit
on Count 1 as well, then you may find -- must find
him not guilty. On Counts 2, 3 and 4, if you find
he did not make a false statement knowingly on the
form, 4473, then you also must find him not guilty
as to Counts 2, 3 and 4.
The jury submitted yet another question to the court on
the morning of the sixth trial day:
Sorry for continuing to ask questions regarding the
affidavit in Count 1, but assuming the jury is
unable to reach a consensus in regards to whether
the [d]efendant knowingly made a false statement on
the 4473, but can [all capitals double underlined]
reach a consensus that he lied on the affidavit
knowingly, would the jury find the [d]efendant
guilty on Count 1 or would it continue to be hung?
The court17 conferred with counsel and provided the
following verbal answer: "[Y]es, if the jury finds unanimously
that the [d]efendant knowingly made a false statement in the
affidavit, then the jury should return a guilty finding on
Count 1." The court also gave the jury an Allen18 charge in
response to its suggestion that it was hung.
At this point, after the numerous exchanges between the
court and the jury, this was the posture of the case: (1) a false
17 On the sixth day of trial, Judge Leo T. Sorokin covered for
Judge Rya W. Zobel, who was unavailable.
18 An Allen charge is a "supplemental jury instruction given
by the court to encourage a deadlocked jury, after prolonged
deliberations, to reach a verdict." Allen Charge, Black's Law
Dictionary (11th ed. 2019); see also Allen v. United States, 164
U.S. 492, 501-02 (1896).
- 19 -
statement that Karani was the actual buyer of the DePasquale gun
on ATF Form 4473 was sufficient to sustain a conviction on Count 1
and necessary to sustain a conviction on Count 3; (2) a false
statement that the DePasquale gun was for on or off duty use and
not for resale on the Certification Letter was an independent basis
for conviction on Count 1; (3) a false statement that Karani was
the actual buyer of the Ilnicki gun on ATF Form 4473 was necessary
for a conviction on both Counts 2 and 4; and (4) a false statement
on the Ilnicki Affidavit charged in Count 2 was no longer a basis
for conviction on Count 2.
Approximately one hour later, the jury reported by
general verdict that it had found Karani guilty on Counts 1, 2,
and 4, and not guilty on Count 3.19
Karani argues that his convictions must be vacated, and
a new trial ordered, because of prejudicial errors in the jury
instructions. First, he asserts that the court's instructions and
19 The convictions on Counts 1, 2, and 4 have this internal
logic. The jury must have determined that Karani's statement that
he was the actual buyer of the Ilnicki gun on Form 4473 was false
because that statement was the sole basis for a guilty verdict on
Counts 2 and 4. The jury found no falsity in Karani's statement
that he was the actual buyer of the DePasquale gun on Form 4473
because that statement was the sole basis for Count 3, on which
Karani was acquitted. The jury's conviction on Count 1 must have
been based on the Certification Letter alone because its acquittal
on Count 3 meant that it necessarily found no falsity in the
DePasquale Form 4473, the alternative basis for a conviction on
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supplemental instruction on the terms "gift" and "actual
purchaser" were incorrect and effectively directed a verdict for
the government. Second, Karani avers that the court misrepresented
the content and legal effect of the Certification Letter. He
contends that if either ground is insufficient on its own to
warrant a new trial, the cumulative effect of the court's errors
requires that outcome.
A. Standard of Review
When addressing a preserved claim of legal error in jury
instructions, we review de novo. See, e.g., United States v.
Figueroa-Lugo, 793 F.3d 179, 190-91 (1st Cir. 2015). This standard
applies to Karani's challenge to the gift instruction.
Karani concedes, however, that he did not preserve his
objection to the court's actual purchaser instruction or the
court's treatment of the Certification Letter. We therefore review
those portions of the charge and the supplemental instructions for
plain error. United States v. Velázquez-Aponte, 940 F.3d 785, 800
(1st Cir. 2019). To demonstrate plain error, Karani must show
that (1) the district court erred, and that (2) the error was clear
and obvious, (3) it affected his substantial rights, and (4) it
"seriously impaired the fairness, integrity, or public reputation
of judicial proceedings." Id. at 793 (quoting United States v.
Montañez-Quiñones, 911 F.3d 59, 63-64 (1st Cir. 2018)).
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B. Legal Background
Karani was found guilty on Counts 1 and 2 of making a
false statement during the purchase of a firearm in violation of
18 U.S.C. § 922(a)(6), which provides, in relevant part:
It shall be unlawful for any person in connection
with the acquisition . . . of any firearm . . .
knowingly to make any false or fictitious oral or
written statement . . . with respect to any fact
material to the lawfulness of the sale or other
disposition of such firearm . . . .
Karani does not contest the materiality of his statements on
appeal, presumably because the Supreme Court has conclusively
determined that statements regarding whether an individual is
engaging in a straw purchase -- i.e., a sale in which an individual
purchases a firearm on behalf of another while claiming the firearm
is for himself -- are material to the lawfulness of a firearms
purchase. See Abramski v. United States, 573 U.S. 169, 188-89
Relatedly, 18 U.S.C. § 924(a)(1)(A), the basis for
Karani's conviction on Count 4, prohibits an individual from
"knowingly mak[ing] any false statement or representation with
respect to the information required by [Chapter 44 of Title 18] to
be kept in the records of [an FFL]." Although there is some
overlap between these two provisions, § 922(a)(6) encompasses all
materially false statements made regarding the legality of the
firearm sale, whereas § 924(a)(1)(A) lacks a materiality
- 22 -
requirement and applies only to statements made in records an FFL
is required to maintain.
The "twin goals" of these provisions, within the broader
statutory scheme, are "to keep guns out of the hands of criminals
and others who should not have them, and to assist law enforcement
authorities in investigating serious crimes." Abramski, 573 U.S.
at 180. Exercising congressionally delegated authority, the
Attorney General authorized ATF to develop Form 4473 as a means of
implementing these goals. See id. at 172-73.
The Supreme Court has explained that the federal
firearms laws reflect a congressional intent to regulate straw
purchases regardless of whether the "true purchaser" -- i.e., one
who sends an agent to the FFL to purchase a gun on his behalf --
was lawfully entitled to possess the gun. Id. at 186-87. The
Court noted that Congress chose to enforce gun regulations by
requiring a purchaser to transact directly with an FFL when that
individual is purchasing a gun from the FFL. Id.
C. The Gift Instruction
ATF Form 4473 states that a person is an actual purchaser
if he purchases a gun for his own personal use or as a gift. In
its instructions to the jury, the district court defined a "gift,"
as that term is used in Form 4473, as "[a] firearm, not [a]
discount," that is transferred voluntarily "without payment,
without compensation." Karani contends that the court's
- 23 -
definition is inaccurate and, because the term is not defined in
Form 4473 or the applicable statutes, the court erred in defining
what constitutes a "gift" for the jury.
We need look no further than the plain and ordinary
meaning of the language in Form 4473, however, to conclude that
the court properly defined a gift in these circumstances. Cf.
Textron Inc. v. Comm'r of Internal Revenue, 336 F.3d 26, 31 (1st
Cir. 2003) ("[I]f the language of a statute or regulation has a
plain and ordinary meaning, courts need look no further and should
apply the regulation as it is written."). The instructions to
Question 11.a. state that an individual is an actual purchaser if
he buys a "firearm as a gift for a third party." That language
makes clear that it is the firearm itself -- not a discount or any
other associated benefit of the transfer -- that must be "given."
To discern when a firearm is transferred as a "gift," we
look to the ordinary meaning of that term. Legal and non-legal
dictionaries alike define a gift by using terminology comparable
to that used by the district court -- a transfer without
remuneration. See Gift, Black's Law Dictionary (11th ed. 2019)
("The voluntary transfer of property to another without
compensation"); Gift, Merriam-Webster's Collegiate Dictionary
(11th ed. 2014) ("[S]omething voluntarily transferred by one
person to another without compensation"). The Supreme Court has
described a gift in these circumstances using similar language in
- 24 -
dicta. See Abramski, 573 U.S. at 186-88 (explaining that ATF
sought to allow bona fide gifts and prohibit straw purchases where
an individual purchases a gun on behalf of another with
compensation or reimbursement); see also id. at 199 (Scalia, J.,
dissenting) (explaining that, under the government's view, a
transfer lawfully qualifies as a gift "[s]o long as no money
changes hands, and no agency relationship is formed"). Based on
the foregoing, we conclude that the district court properly defined
the term "gift" in Form 4473 as a firearm, not a discount,
transferred without compensation.
Karani contends that he was nevertheless entitled to
submit his own understanding of the term "gift" to the jury because
his understanding of that term was inextricably intertwined with
whether he (1) made a false statement on Form 4473 and (2) did so
knowingly. In making this argument, Karani relies first on United
States v. DiRico, 78 F.3d 732 (1st Cir. 1996).
In DiRico, where materiality was an element of the
offense, we reversed the district court's determination that the
materiality of a statement on a tax return was a legal question
for it, rather than the jury, to decide. Id. at 736. Although it
was the duty of the court to "properly instruct the jury on the
legal definition of materiality," the jury had to decide
materiality based on the evidence proffered at trial. Id.
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Here, unlike in DiRico, the court did not remove an
element of the offense from the jury's consideration. Indeed, the
term "gift" is not an element of the false statement offenses.
Instead, it is a term relevant to the determinations that the jury
had to make on the elements of the offenses -- for Counts 1 and 2:
knowledge, falsity, and materiality; for Counts 3 and 4: knowledge,
falsity, and appearance in a record that an FFL was required to
keep by law. The court had a responsibility to define the term
"gift" because the jury's understanding of that term was essential
to its determinations on the elements of the offenses.
Moreover, contrary to Karani's assertion, the court's
definition of "gift" did not necessitate a finding that his
statements were false. After the court informed the parties that
it would instruct the jury that it must find that the firearm
itself, not the discount, was a gift, Karani adjusted his defense.
Although he still argued in closing that the discount was a gift,
he also argued that the firearms themselves were gifts under the
court's definition because he did not profit from their transfers,
he expended time and resources for which he was not compensated,
and he paid for the guns out-of-pocket before he was reimbursed.
Thus, the court's definition of gift did not invade the duty of
the jury to decide whether Karani's statements were false.
We find similarly unavailing Karani's argument, relying
on Cheek v. United States, 498 U.S. 192 (1991), that his
- 26 -
understanding of the term "gift," even if it was wrong, was a
mistake of law that was critical to the jury's determination of
whether he knowingly made a false statement. In Cheek, the
defendant was charged with willfully violating income tax laws.
Id. at 194. Although the defendant conceded that he violated the
law, he argued that his violation was not willful because he
sincerely believed that income taxes were unconstitutional. Id.
at 195-96. The district court instructed the jurors that an
"objectively reasonable good-faith misunderstanding of the law
would negate willfulness." Id. at 196-97. However, it also told
them that the defendant's belief that he had no legal duty to pay
taxes was not objectively reasonable. Id. The Supreme Court
reversed, explaining that the sincerity of the defendant's belief
as to whether he had a legal duty to pay taxes, even if
unreasonable, was a jury question because it went to the heart of
whether he had committed a "willful" violation of the tax code.
Id. at 203.
Cheek is inapt precedent for Karani's knowledge-based
claim of error. As the Supreme Court has explained, the "highly
technical" tax code risks "ensnaring individuals engaged in
apparently innocent conduct." Bryan v. United States, 524 U.S.
184, 194 (1998). To counteract that risk, "willful" mens rea in
certain portions of the tax code requires specific intent to
violate a known legal duty. Id. at 193-96. If the jury credits
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a defendant's proffered ignorance or misunderstanding of the
specific legal duty he is charged with violating, he cannot be
held criminally liable. Cheek, 498 U.S. at 202. Cheek thus carves
out a limited exception for certain tax violations to the
traditional rule that a mistake of law does not excuse a violation
of the law.20 See id. at 203-04; see also Bryan, 524 U.S. at 194-
In Bryan v. United States, to demonstrate the limited
applicability of Cheek, the Court considered specifically whether
18 U.S.C. § 924(a)(1)(D),21 which imposes an increased penalty for
"willful" violations of certain federal firearms laws, carried a
Cheek-like mens rea requirement, such that mistake of the law was
a valid defense. Bryan, 524 U.S. at 194-96. Despite Congress'
use of the same term -- willful -- the Court held that Cheek was
inapplicable because the federal firearms laws did not present the
same danger of ensnaring apparently innocent conduct that
motivated the decision in Cheek. Id. at 195. Hence, the Court
20 That ignorance of the law is no excuse for violation of the
law is "deeply rooted in the American legal system." Cheek, 498
U.S. at 199. It is premised on the notion that "the law is definite
and knowable" and, for that reason, we presume, unless Congress
provides otherwise, that every person knows the law. Id. (citing
Oliver Wendell Holmes, Jr., The Common Law 47-48 (1881)).
21 Pursuant to § 924(a)(1)(D), "whoever willfully violates any
. . . provision of [this chapter except as otherwise provided]
shall be fined under this title, imprisoned not more than five
years, or both."
- 28 -
held that "willful" in the federal firearms laws "d[id] not carve
out an exception to the traditional rule that ignorance of the law
is no excuse." Id. at 196.
Drawing on Bryan, we conclude that, if Cheek does not
apply to a willful violation of the federal firearms laws, it
likewise does not apply to the lesser, knowing violation at issue
here. See id. at 193 (explaining that a willful state of mind
requires an "evil-meaning mind," which is more than a knowing state
of mind). Indeed, we recognized as much in United States v. Meade,
175 F.3d 215 (1st Cir. 1999), although we considered a different
subsection of the firearms laws. There, we explained that "it
simply does not appear plausible" that Congress intended a
"knowing" violation of § 922(g), which criminalizes the possession
of a firearm by prohibited persons, "to carry a mens rea
requirement of actual knowledge of the law." Meade, 175 F.3d at
226 n.5; see also Acosta v. Loc. Union 26, UNITE HERE, 895 F.3d
141, 145 & n.5 (1st Cir. 2018) (explaining that courts presume,
absent a material variation in the surrounding text, that a word
bears the same meaning throughout a statutory provision).
Accordingly, to prove a knowing violation of the federal
firearms laws at issue here -- §§ 922(a)(6) and 924(a)(1)(A) --
the government only needed to prove that Karani "knowingly [made]
- 29 -
a false . . . statement."22 In other words, it needed to show
that when Karani signed the relevant documents affirming that he
was purchasing the gun either for himself or as a gift for a third
party, he knew the facts contrary to those representations -- i.e.,
that he was purchasing a gun on behalf of another and would be
reimbursed -- and, hence, he knew his statements were false. To
assist the jury in making that determination, the district court
properly and accurately instructed the jury on the legal meaning
of the term "gift," and, in doing so, did not direct a verdict on
any element of the offense or otherwise invade the province of the
jury. We therefore detect no error in the district court's gift
D. Actual Purchaser Instruction
Karani argues for the first time on appeal that there
were multiple errors in the district court's actual purchaser
instruction, which asked the jury to consider whether:
[Karani was] buying the firearm for himself or as
a gift for someone else or did he buy it for another
with the intention to transfer the gun to that
person with the expectation that the person would
pay for it and did so, in which case he is not the
22 The other requirements of either provision are not at issue
here because (1) again, Karani does not challenge materiality under
§ 922(a)(6), and (2) the false statements alleged to violate
§ 924(a)(1)(A) in Counts 3 and 4 were made in Form 4473s, which
are "required by [Chapter 44 of Title 18] to be kept in the records
of [an FFL]," see 18 U.S.C. § 923(g); 27 C.F.R. § 478.124.
- 30 -
As noted above, we review this challenge only for plain error.
See Velázquez-Aponte, 940 F.3d at 800.
Karani initially contends that the actual purchaser
instruction presupposed that a transfer of a firearm at a discount
could never be considered a gift. As we have explained, the
availability of a discount does not render a firearm purchase a
"gift." Accordingly, the district court did not err by instructing
the jury that a gun purchased by someone who intends to transfer
the firearm to someone else, with reimbursement for the cost, is
not a "gift" and, hence, the transferor is not the actual buyer.
Karani also objects to the actual purchaser instruction
quoted above on the ground that the court directed the jury to
find that Karani was not an actual purchaser because it used the
facts of this case as an example, and stated that, under those
facts, the defendant could not be considered an actual purchaser.
This claim of error also fails. Although it would be
easy to mistake the example used in the court's instruction for
the facts of this case -- an individual purchasing a gun for
another with the expectation that the person would, and did, pay
for the gun -- the instruction merely illustrated a quintessential
straw purchase. That Karani admitted to facts that have a strong
resemblance to a typical straw purchase does not render the court's
- 31 -
Indeed, the district court mirrored language routinely
used by the Supreme Court and our sister circuits in describing a
straw versus actual purchaser. See, e.g., Abramski, 573 U.S. at
171-72 (describing a straw purchaser as "a person who buys a gun
on someone else's behalf while falsely claiming that it is for
himself"); United States v. Blake, 394 F.3d 1089, 1090 (8th Cir.
2005) (describing a straw purchaser as one who "purchased [guns]
from [FFLs] on behalf of others who provided the money for the
guns"); United States v. Ortiz, 318 F.3d 1030, 1038 (11th Cir.
2003) (identifying a straw transaction as one where the defendant
"at the time of completing Form 4473 had no intention of keeping
the firearms or giving them as a gift").
Accordingly, we discern no error in the court's actual
E. The Certification Letter
Karani asserts that the district court committed several
errors in instructing the jury on Count 1 concerning the substance
and legal effect of the Certification Letter. Those errors can be
divided into two categories: (1) claims that the court
mischaracterized the Certification Letter, and (2) claims that the
court improperly instructed the jury on the significance of the
23 Because we conclude that the district court's gift and
actual purchaser instructions were not erroneous, we need not
consider appellant's argument that the alleged errors were
- 32 -
Certification Letter to Count 1.24 Karani concedes that these
claims were not preserved and, therefore, we review for plain
1. Mischaracterization of the Certification Letter
Karani correctly points out that the district court
inaccurately referred to the Certification Letter as an affidavit
-- mirroring the language of the indictment -- and also misquoted
the Certification Letter's language on several occasions. He
contends that these instructional errors resulted in an improper
variance between the charges against him and the proof at trial.
To prevail on a claim of improper variance, an appellant
must "show a material factual difference between the crime charged
in the indictment and the crime proved at trial." United States
v. Rodríguez-Milián, 820 F.3d 26, 33 (1st Cir. 2016). He must
also demonstrate that the variance resulted in prejudice. Id.
None of Karani's contentions concerning the Certification Letter
satisfies these requirements.
First, Karani argues that the court's instructions and
supplemental instructions were improper because the Certification
Letter was not signed under penalty of perjury and was, therefore,
not an affidavit. Karani is correct; the Letter was not an
24 Again, we note that Karani does not argue on appeal that
the Certification Letter itself was a legally insufficient basis
for his conviction on Count 1. See supra note 14.
- 33 -
affidavit. Indeed, the government concedes as much, even though
Count 1 of the indictment classifies the Certification Letter as
an affidavit and both parties used that term to describe the
Certification Letter at trial. The Ilnicki Affidavit, which was
signed under penalty of perjury and, as previously discussed,
ultimately withdrawn from the jury's consideration on Count 2, was
apparently the source of this confusion.
Nevertheless, Karani fails to explain how the court's
mischaracterization of the Certification Letter as an affidavit
resulted in a material factual difference between the crime charged
and the crime proven at trial, or prejudiced him in any way. As
we have already explained, to prove a violation of § 922(a)(6) on
Count 1, the government had to prove only that Karani knowingly
made a false statement that was material to the legality of the
federal firearms purchase.25 The statute is not concerned with the
form of the statement so long as it is material, and Karani does
not challenge materiality.26 See § 922(a)(6). Whether the
Certification Letter was an affidavit is simply not relevant to
whether a statement made within the document is a violation of
25 See supra note 14 and Section II.B.
26 See supra note 14 and Section II.B. The allegedly false
statement in the Certification Letter -- that the DePasquale gun
was for "on or off duty use and . . . not . . . for resale" --
was material to the lawfulness of the sale because it concealed
that Karani was engaging in a straw purchase. See Abramski, 573
U.S. at 188-89.
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§ 922(a)(6). Accordingly, the court's errors did not cause a
Second, Karani claims that the court instructed the jury
that he declared on the Certification Letter that he purchased the
DePasquale gun "for official use and not for resale," when, in
fact, the Letter states that he purchased the firearm for "on or
off duty use and . . . not . . . for resale."27 Karani contends
that the jury could have found that he purchased the gun for his
own off-duty use -- meaning that his statement on the Certification
Letter would be true -- but convicted him based on the court's
incorrect instruction that the Certification Letter stated that
the gun was only for official use. Karani further asserts that
the jury must have relied on the Certification Letter in finding
him guilty on Count 1.
For reasons we have already explained, we agree with
Karani's contention that the jury likely convicted him on Count 1
based solely on his statements in the Certification Letter.28
Nevertheless, Karani fails to demonstrate the requisite prejudice
27 The court's instruction quotes the language in Count 1 of
the indictment, which states that Karani "signed an affidavit that
the purchase was for official use and not for resale." It is the
Affidavit in Count 2, however, not the Certification Letter in
Count 1, that states that Karani was purchasing the firearm to
"directly or indirectly supply [himself] with a handgun for [his]
official duties as a law enforcement official."
28 See supra note 19.
- 35 -
resulting from the court's misstatement of the Letter's specific
language. The jury was given the Certification Letter and was
therefore able to review the language itself. Moreover, the
distinction between a purchase for his own official or off-duty
use is inconsequential in the circumstances of this case. The
question before the jury was whether Karani purchased the firearm
for his own use (official or otherwise) or for resale. By
insisting that he purchased the guns as gifts for his friends, he
conceded that he did not purchase the guns for his own use. Hence,
the court's imperfect use of language had no impact on the trial
and is not reversible plain error.
2. Certification Letter's Significance to Count 1
Karani argues that, mistaken description aside, the
instructions related to the Certification Letter were
substantively problematic in multiple respects. He contends that
the court (1) confused the jury by giving inconsistent instructions
regarding whether the government was required to prove a false
statement in both the Certification Letter and ATF Form 4473, as
alleged in Count 1 of the indictment; (2) failed to address the
duplicity in the indictment; and (3) overlooked the government's
waiver of reliance on the Certification Letter as a basis for
conviction on Count 1. We address each argument in turn.
a. Inconsistent instructions. Karani is correct that
the court provided conflicting instructions concerning the
- 36 -
significance of the Certification Letter to the Count 1 charge.
In some parts of its instructions, the court told the jury that a
false statement in either the Certification Letter or Form 4473
could support a conviction on Count 1, and at other times it
referenced only the statement in the Form 4473.29 At the end,
however, when the jurors asked for clarification during their
deliberations, the court instructed them, correctly, that either
statement could form the basis for a conviction on Count 1.30 We
presume jurors follow a district court's curative instruction.
See e.g., United States v. Sepulveda, 15 F.3d 1161, 1185 (1st Cir.
b. Duplicitous indictment. Count 1 of the indictment
states that Karani "represented on ATF Form 4473 that he was the
actual transferee/buyer of the firearm and signed an affidavit
29 For example, the court explained to the jury that the
"indictment charges that the Defendant represented on 4473 that he
was the actual purchaser of the firearm, and at the end of Counts
1 and 2 signed an affidavit that the purchase was for official use
and not for resale." Docket No. 109, at 66. In another instance,
the court stated that "[a] false statement is one that gives
information that is not true or correct. Here the Defendant's
answer to Question 11A on this Form 4473, that he was the actual
purchaser of the firearm, that's the alleged false statement."
Docket No. 109, at 65. In yet another instance, the court
explained to the jury that Counts 1 and 2 alleged that Karani made
a false statement by representing on "ATF Form 4473 as to each
sale that he was the actual buyer for his own official use and was
not buying for resale when he actually did buy to sell to someone
else." Docket No. 109, at 64.
30 See supra Section I.F. discussing the posture of the case
following the court's several supplemental instructions.
- 37 -
that the purchase was for official use and not for resale."
(Emphasis added.) Karani claims that the indictment's use of "and"
required the government to prove a false statement in both the
Form 4473 and the Certification Letter and, for that reason, the
district court improperly instructed the jury that Karani could be
found guilty on Count 1 based on either one of the two documents.
Although this claim highlights a flaw in the indictment,
Karani's assertion of error in the court's instructions is
unavailing. Because the indictment charges two distinct and
complete violations of the same statute in a single count joined
by the conjunctive "and," it is duplicitous. See United States v.
Newell, 658 F.3d 1, 22 (1st Cir. 2011) ("[T]his indictment [i]s
duplicitous in consolidating multiple complete offenses under
single counts."). The remedy for a duplicitous indictment is a
specific unanimity instruction to ensure that the jury understands
that its verdict must be unanimous as to which instance of the
alleged statutory violation resulted in a crime. See id. at 28
("[T]he failure to provide a specific unanimity instruction [for
the duplicitous charges] was error."). The district court provided
such an instruction:
It is enough if [the government] proves that
[d]efendant made a false statement on either Form
4473 or the affidavit or on both documents, but all
12 of you have to be in agreement as to one or the
other or both; that if all of you do not agree that
the [d]efendant made a false statement in at least
- 38 -
one of these documents and which one, you must find
him not guilty.
No more was required.31
c. Government waiver. Finally, to the extent that Karani
argues that the court's instructions failed to account for the
government's abandonment of the Certification Letter as a basis
for conviction on Count 1, his argument fails. Although the
government did not use the phrase "Certification Letter" in its
closing argument, the government referred generally to the
substance of the Certification Letter and referenced the Letter
itself consistently throughout trial -- in its opening statement,
in direct examination of the various witnesses, and in crossexamination of Karani. Accordingly, the government did not abandon
reliance on the Certification Letter, and Karani's argument that
the court committed plain error in failing to so instruct the jury
Aeans 'or' and 'or' also means 'and,'" was harmless because
the court properly addressed the duplicitous indictment by