Legal Analysis of Anti-Gun Comedian's Straw Purchase Video

This post comes from one of our readers, I AM NOT YOUR ATTORNEY, and is a follow-up to our article “Anti-Gun Comedian Makes Straw Purchase?”

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​Dear Reader, please forgive the legal speak—I wanted to be exact. Please forgive the length- I wanted to be thorough. Please forgive the excess detail—I wanted to show the ugly truth that has been perpetrated under the mask of comedy.

Hofstetter clearly states in his video at around 0:31 that he gave Mukai, a Nevada resident, the money to buy the gun for him. In his remarks on the YouTube video page, he states that Mukai did purchase the weapon and presently possesses it. They further show that a background check on Mukai was performed. This is done subsequent to the completion of Form 4473.

As the United States Supreme Court has recently upheld in Abramski v. United States, 134 S. Ct. 2259 (2014), falsely checking “Yes,” to the question 11.a “Are you the actual transferee/buyer of the firearm(s) listed on this form?” constitutes a breach of 18 U.S.C. § 922(a)(b). Abramski, Mukai, and anyone else who knowingly makes a false statement to, intentionally deceives, and lies about a material fact to a firearms dealer is guilty. Mr. Abramski is presently enjoying five years of probation after paying a $200 fine for checking “Yes,” to that question.

There are two ways to address this issue, and only two, per 18 U.S.C. § 922(a)(b) and its resultant Form 4473. Either Hofstetter has given the firearm as a gift to Mukai, or Mukai has performed a straw purchase for Hofstetter. The facts, in conjunction with the instructions for Question 11.a included on the form, shall disclose the truth.

Hofstetter leaves no doubt as to who is paying for the firearm, he acknowledges that it is his money and Mukai is his proxy. If he had wished to give the firearm as a gift to Mukai, the instructions for the form state, “However, if Mr. Brown [Hofstetter] goes to buy a firearm with his own money to give to Mr. Black [Mukai] as a present, Mr. Brown [Hofstetter] is the actual transferee/buyer of the firearm and should answer “YES” to question 11.a.” In other words, Hofstetter had to fill out the form and then legally transfer the weapon to Mukai. As Hofstetter did not complete the form, but suborned Mukai to purchase a weapon using Hofstetter’s money, perhaps enlightenment may be had by the other portion of the instructions for Question 11.

“Mr. Smith [Hofstetter] asks Mr. Jones [Mukai] to purchase a firearm for Mr. Smith [Hofstetter]. Mr. Smith [Hofstetter] gives Mr. Jones [Mukai] the money for the firearm. If Mr. Jones [Mukai] fills out Form 4473, he violates the law by falsely stating that he is the actual buyer of the firearm. Mr. Smith also violates the law because he has unlawfully aided and abetted or caused the making of false statements on the form.” Put differently, when Hofstetter gives money for the purchase of a firearm to Mukai, he provides him with the financial consideration necessary to constitute a contract for the purchase of the weapon. At no time does he have to specifically state what he wants, his actions create the understanding that was explicitly stated at the beginning of the video. Mukai then criminally makes a false statement as in Abramski, above, and Hofstetter has played a criminal role in the deception regarding a material fact. 18 U.S.C. § 922(a)(b) and Form 4473 leave no other interpretations.

As a hypothetical, Hofstetter might say, “I never received the weapon, I have publicly stated it is with Mukai.” To finalize the conclusion of a straw purchase, note well that Question 11.a reads “You are not the actual buyer if you are acquiring the firearm(s) on behalf of another person.” As Hofstetter has directly stated, he provided the money for the purchase of the weapon and Mukai purchased it on his behalf. At no point on the form or in law does failure to complete the terms of an illegal contract to purchase a lethal weapon protect either party from conviction. It was either a gift, or a straw purchase- there is no gray area with dangerous and deadly weapons.

The right to freedom of expression is not a sufficient affirmative defense to a criminal act. Hofstetter and Mukai have falsely provided the impression that one may simply drive across the border from California into Nevada and purchase guns. The rest of their comedy video shows the difficulties they encounter when attempting to legally acquire other commodities, and how much faster one can get things by breaking the law.

Hofstetter’s comedy contains many insults. First, it insults Nevada “so that people [from California] can't just drive a few hours to get around the [California] law.” It is an insult to law abiding gun owners everywhere who do not engage in straw purchases and other criminal conduct. But, most importantly, by constantly cracking jokes and engaging in distracting behavior, Hofstetter and Mukai have made it appear that Paul Cesiro, owner of Paul’s Gun Room, was aware of and tolerated their straw purchase.

The good folks of Paul’s Gun Room who steadfastly refused Hofstetter a Form 4473 and the sale of a gun have been made to appear criminally complicit in Hofstetter and Mukai’s illegal acts. They’re a small business working hard to obey the law, and they and every other Nevadan has been slapped in the face by these comedians. If you have the opportunity to patronize Mr. Cesiro’s business, which the video shows performed its due diligence, please give them a call at (702) 454-6437 and help support them while they have to produce Mukai’s Form 4473 and possibly retain defense counsel. As Hofstetter’s YouTube post protesting his innocence attests, it was their goal to make Paul’s Gun Room look like they supported a straw purchase.

Hofstetter’s point was not lost. He believes that prior restraint of a constitutionally protected right should be the standard. That’s a fine perspective to take, and it was protected speech up until it involved deceiving a government agency—which prefers post hoc punishments of offenders. While Hofstetter protests much that his critics are neither lawyers nor wrong, his own defense counsel is silent on the matter. Where is the well crafted legalese citing code, statute, and prior judicial decision bearing the name of any attorney? Surely these two didn’t simply decide to violate federal law and become a test-case without first retaining counsel. Hofstetter and Mukai have performed their acts and shown Californians how they can just drive a few hours and illegally acquire deadly weapons by performing a straw man purchase.

Since their video “How Easy is it to Buy a Gun? (Hidden Camera)” has gone viral, it’s been reported on by local newspapers, the Huffington Post, Inside Edition, etc. Thankfully, there is a means by which we can stem the tides of those poor misled potential federal criminals. Some of whom might be successful using Hofstetter and Mukai’s methods. Those means are simple and direct: aggressive and vigorous enforcement of local, state, and federal laws following the Abramski ruling. In the same way they have casually violated the gun laws and encouraged criminal conduct, let them become a shining example of how we deal with those who engage in such mischief. Let the word go out far and wide that this conduct will not be tolerated, and make such a thorough example of these comedians that the joke is on them.
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Sources have informed Nevada Carry that the ATF may be investigating the incident.