                          UNITED STATES, Appellee


                                        v.


                      Lesly PHANPHIL, Airman Basic
                        U.S. Air Force, Appellant


                                  No. 01-0620

                            Crim. App. No. 33484


       United States Court of Appeals for the Armed Forces


                       Argued December 12, 2001

                       Decided June 28, 2002


     CRAWFORD, C.J., delivered the opinion of the Court, in
which GIERKE, EFFRON, and BAKER, JJ., joined. SULLIVAN, S.J.,
filed an opinion concurring in the result.


                                    Counsel

For Appellant: Captain Shelly W. Schools (argued); Lieutenant
Colonel Beverly B. Knott and Lieutenant Colonel Timothy W.
Murphy (on brief).

For Appellee: Major Linette I. Romer (argued); Colonel Anthony
P. Dattilo, Lieutenant Colonel William B. Smith, and Major Lance
B. Sigmon (on brief).

Military Judge:     Robert E. Coacher


     THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Phanphil, No. 01-0620/AF



     Chief Judge CRAWFORD delivered the opinion of the Court.

     In accordance with his pleas, appellant was convicted of

conspiring with two other soldiers (Airman First Class (A1C)

Mathieu and Specialist (SPC) Bros) and his wife, Dorothy

Phanphil, to violate 18 USC § 922(a)(1) by wrongfully engaging

in the business of shipping, transporting, or dealing firearms

in foreign or interstate commerce by purchasing weapons for

another, violating a lawful general regulation by improper use

of his government travel card, and violating 18 USC § 922(a)(6)

by wrongfully making a false written statement likely or

intended to deceive a firearms dealer with respect to a fact

material to the lawfulness of the sale of firearms, in violation

of Articles 8l, 92, and 134, Uniform Code of Military Justice

(UCMJ), 10 USC §§ 881, 892, and 934.

     Contrary to his pleas, appellant was convicted by a general

court-martial composed of officer and enlisted members of an

additional specification of conspiring with A1C Mathieu, SPC

Bros, and his wife to violate 18 USC § 922(a)(6) by knowingly

making a false written statement likely to deceive a firearms

dealer with respect to a fact material to the lawfulness of the

sale of firearms, in violation of Article 81, supra.    The

members sentenced appellant to a dishonorable discharge,

confinement for three years, and total forfeitures.    The



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United States v. Phanphil, No. 01-0620/AF


convening authority approved the sentence as adjudged, and the

Air Force Court of Criminal Appeals affirmed.   54 MJ 911 (2001).

We granted review of the following issues:

     I.    WHETHER APPELLANT’S GUILTY PLEA TO CHARGE III WAS
           IMPROVIDENT BECAUSE THE MILITARY JUDGE FAILED TO
           DEVELOP THE FACTUAL PREDICATE FOR MATERIALITY OF
           THE LAWFULNESS OF THE SALE.

     II.   WHETHER THE MILITARY JUDGE’S INSTRUCTION TO THE
           MEMBERS REGARDING THE ELEMENT OF MATERIALITY WAS
           PLAIN ERROR.

     We hold that the identity of the true purchaser of firearms

is material to the lawfulness of the sale of firearms.    We

further hold that the military judged elicited an adequate

factual predicate to support appellant’s admission that the

identity of the true purchaser was material.    We also hold that

if there was an error in failing to instruct the court members

on materiality, it was harmless beyond a reasonable doubt.

                               FACTS

     Appellant was a married Airman Basic with financial debts

who was stationed at Peterson Air Force Base, Colorado.    A1C

Mathieu, who worked with appellant, suggested that appellant

could make money at a rate of $50.00 per gun by purchasing guns

for another member of the military.

     On September 11, 1997, A1C Mathieu called appellant at work

and arranged to meet with appellant, his wife, and SPC Bros




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United States v. Phanphil, No. 01-0620/AF


at a Blockbuster video store.   Appellant, while still in

uniform, met with the group and discussed buying weapons and

making a $50 profit per weapon.   SPC Bros did not want to

purchase the guns himself for fear it would raise the suspicions

of the Bureau of Alcohol, Tobacco, and Firearms (ATF), and he

would face possible arrest for his gun smuggling into Haiti.       He

told appellant that in order to buy these weapons, appellant

needed his military identification card and his military orders.

After going to appellant’s quarters to get these items, they

went to Gart Sports to make the purchases.

     SPC Bros picked out the weapons he wanted appellant to buy,

left the store with A1C Mathieu, and went to the parking lot.

Appellant did not have enough money and went back out to get

more money to pay for the weapons.     At this time, A1C Mathieu

went back in and counted out the money but still did not have

enough.   They returned to the car, where SPC Bros was waiting,

and obtained more money from him.     They then returned to the

store and appellant filled out the application to purchase the

firearms, filling in ATF Form 4473.     On that form, appellant

certified that he was the actual buyer of the firearms, knowing

full well that the firearms would be going to SPC Bros.     The

form states:




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United States v. Phanphil, No. 01-0620/AF


                          IMPORTANT NOTICES

          1.   WARNING - The Federal firearms laws require
               that the individual filling out this form must
               be buying the firearm for himself or herself
               or as a gift. Any individual who is not
               buying the firearm for himself or herself or
               as a gift, but who completes this form,
               violates the law. Example: Mr. Smith asks
               Mr. Jones to purchase a firearm for Mr. Smith.
               Mr. Smith gives Mr. Jones the money for the
               firearm. If Mr. Jones fills out this form, he
               will violate the law. However, if Mr. Jones
               buys a firearm with his own money to give to
               Mr. Smith as a birthday present, Mr. Jones may
               lawfully complete this form. A licensee who
               knowingly delivers a firearm to an individual
               who is not buying the firearm for himself or
               herself or as a gift violates the law by
               maintaining a false ATFF 4473.

     Subsequent to this purchase and the transfer of five

pistols to SPC Bros, appellant discovered that SPC Bros, who

like appellant and A1C Mathieu is a native Haitian, was sending

these weapons to Haiti.   Appellant agreed to purchase more

weapons on behalf of SPC Bros but was intercepted by law

enforcement agents prior to completing a second transaction.

     During the inquiry into the providence of appellant’s plea

of guilty to making a false written statement to a firearms

dealer, appellant testified that on the form, he said he was the

actual buyer of the firearms.   He admitted this false statement

violated 18 USC § 922(a)(6).    In addition to pleading guilty to

the aforementioned offense, appellant also pleaded guilty to a

conspiracy with A1C Mathieu, SPC Bros, and appellant’s wife to



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United States v. Phanphil, No. 01-0620/AF


violate 18 USC § 922(a)(1) by wrongfully engaging in the

business of shipping, transporting, or dealing firearms in

foreign or interstate commerce by purchasing weapons for another

who was not a licensed dealer or manufacturer.   However, it is

his plea of not guilty to a conspiracy with the same people on

the same date to violate § 922(a)(6) by knowingly making a false

written statement intended to deceive a licensed firearm dealer

which is the subject of this litigation.

     During the military judge’s providence inquiry of appellant

about the unlawfulness of his false statement to Gart Sports,

the following colloquy took place:

     TC   I apologize, Your Honor, there’s one other thing,
          that was that the statement had to be material,
          and I realize that’s a decision for you, the
          court, to make, but--

     MJ   I understand.

     TC   It’s one of the elements.

     MJ   Airman Phanphil, when it talks about--in the
          specification, it talks about the term with
          respect to a “fact material” to the lawfulness of
          the sale. What that term “fact material” means is
          an important fact, a significant fact. And so,
          what I am asking you I guess is do you think it
          would have been an important fact for Gart Sports
          to know who the actual real purchaser was?

     ACC Yes, sir.

     MJ   So, you would agree with me that that information
          is a fact material or a very important fact that
          Gart Sports in their line of business needed to
          know?



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United States v. Phanphil, No. 01-0620/AF


     ACC Yes, sir.

     MJ   Because if--do you understand that if they were
          really selling to--if they thought that they were
          selling to Bros when you came in for the guns,
          they probably wouldn’t have sold them to you. Do
          you understand that?

     ACC Yes, sir.

                            DISCUSSION

     Issue I can be subdivided in two distinct issues:      (1)

whether the military judge elicited an adequate factual

predicate for the plea, and (2) whether appellant attempted to

plead guilty to conduct that does not violate 18 USC § 922(a).

The second sub-issue is a question of first impression for this

Court.

     Appellant provided false information in order to obtain a

weapon for another individual (SPC Bros) who may have been

eligible to purchase a firearm in his own right.      There are at

least two approaches to the question of whether a false

statement is material to the lawfulness of the sale.      Several

courts take the position 18 USC § 922(a) is not violated by a

“straw purchase” when the “actual purchaser” is otherwise

eligible to purchase the weapon.       See, e.g., United States v.

Polk, 118 F.3d 286, 295 (5th Cir. 1997)(“Thus, if the true

purchaser can lawfully purchase a firearm directly, § 922(a)(6)

liability (under a ‘straw purchase’ theory) does not attach.”).

A second approach, which we adopt, is that the identity of the


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United States v. Phanphil, No. 01-0620/AF


true purchaser is a “fact” material to the lawfulness of the

sale, regardless of the eligibility of the true purchaser.

18 USC § 922 provides as follows:

          (a)   It shall be unlawful --

                                 * * *

               (6) for any person in connection with the
          acquisition or attempted acquisition of any
          firearm or ammunition from a licensed importer,
          licensed manufacturer, licensed dealer, or
          licensed collector, knowingly to make any false
          or fictitious oral or written statement or to
          furnish or exhibit any false, fictitious, or
          misrepresented identification, intended or likely
          to deceive such importer, manufacturer, dealer,
          or collector with respect to any fact material to
          the lawfulness of the sale or other disposition
          of such firearm or ammunition under the
          provisions of this chapter....

     Our examination of 18 USC § 922(a)(6) begins with the

statute’s plain text and Congress’s legislative intent in

passing the statute.

               The principle purposes of [this portion of
          the Omnibus Crime Control and Safe Streets Act of
          1968] are to aid in making it possible to keep
          firearms out of the hands of those not legally
          entitled to possess them because of age, criminal
          background, or incompetency, and to assist law
          enforcement authorities in the States and their
          subdivisions in combating the increasing
          prevalence of crime in the United States.

                            * * *

               The existing Federal controls over
          interstate and foreign commerce in firearms are
          not sufficient to enable the States to
          effectively cope with the firearms traffic within
          their own borders through the exercise of their


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United States v. Phanphil, No. 01-0620/AF


          police power. Only through adequate Federal
          control over interstate and foreign commerce in
          firearms, and over all persons engaging in the
          business of importing, manufacturing, or dealing
          in firearms, can this problem be dealt with, and
          effective State and local regulation of the
          firearms traffic be made possible.

S. Rep. No. 90-1097, at 28 (1968), reprinted in 1968

U.S.C.C.A.N. at 2113-14.

     Additionally, the legislative history provides:

          This paragraph [§ 922(a)(6)] prohibits the making of
          false statements or the use of any deceitful practice
          (both knowingly) by a person in connection with the
          acquisition or attempted acquisition of a firearm from
          a licensee. To invoke the prohibition, the false
          statement or deceitful practice must be material to
          the lawfulness of the sale of the firearm under the
          provisions of the title. The requirement that one who
          obtains a firearm from a licensee must properly
          identify himself is inherent in this prohibition.
          This is strengthened by the recordkeeping provisions
          of sections 922(b)(5) and 923(d) as contained in the
          title.

Id. at 114, 1968 U.S.C.C.A.N. at 2203 (emphasis added).

     The recordkeeping provisions, including § 922(a)(6), “place

more emphasis on the recordkeeping responsibilities of licensees

[sellers] by requiring that the licensee record identifying

information submitted to him by the purchaser....”   Id. at 80,

1968 U.S.C.C.A.N. at 2168.   “[This Act] would also authorize the

release of pertinent information obtained from the licensee’s

records, to State and local authorities, to assist them in law-

enforcement activities.”   Id.




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United States v. Phanphil, No. 01-0620/AF


     These recordkeeping provisions are designed to assist law

enforcement and also to control foreign commerce in firearms.

SPC Bros recognized that and did not want to call attention to

himself for purchasing too many firearms.    “Strawman” purchases

defeat the recordkeeping provisions of the Act.    During the

providence inquiry, appellant admitted that if the seller

thought he was selling the guns to a third person, he probably

would not have sold the guns to appellant.

         In this case, we adopt a construction consistent with

Congress’s intent in passing the statute.    See, e.g., Geier v.

American Honda Motor Co., Inc., 529 U.S. 861 (2000).    The ATF

Form 4473 recognizes the goal of Congress and puts the buyer on

notice that the individual filling out the form must be the

actual purchaser.    An agency’s interpretation of the statute,

while not controlling, may be examined in determining the

congressional objectives.    To allow strawman purchases -- that

is, false information as to the actual purchaser -- would make

the recordkeeping provisions unworkable.

     As pointed out by the court below, this is a guilty plea

case.    We will not overturn a guilty plea unless there is “a

‘substantial basis’ in law and fact for questioning the guilty

plea.”    United States v. Prater, 32 MJ 433, 436 (CMA 1991).    By

falsely answering question 8a of ATF Form 4473, appellant misled

the Department of the Treasury, the agency responsible for


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 United States v. Phanphil, No. 01-0620/AF


 recordkeeping and knowing to whom which weapons are sold.             Thus,

 the actual buyer’s identity is as much a material fact related

 to the lawfulness of the sale as is the buyer’s eligibility to

 own or possess the weapon.       By signing ATF Form 4473, appellant

 acknowledged that making a false statement thereon was

 punishable as a felony.       The actual buyer’s identity is a record

 required to be kept by 18 USC § 922(b)(5).          False statements or

 representations that result in fictitious identifications of the

 real buyer are prohibited.       Id. at § 924(a)(1)(A); see generally

 United States v. Nelson, 221 F.3d 1206 (11th Cir. 2000); United

 States v. Kind, 194 F.3d 900 (8th Cir. 1999).*

       With regard to Issue II, also one of first impression

before this Court, appellant claims that the military judge

committed plain error by telling the members “the materiality of

the alleged false statement is not a matter with which you are

concerned, but rather is a question for the court to decide.”

Appellant pled guilty to making a false statement to Gart Sports,

in violation of 18 USC § 922(a)(6)(Charge III).           The judge

informed the members that the only offense remaining for them to

decide guilt or innocence on was specification 1 of Charge I.              As



 *In my personal view, appellant’s making the purchase in uniform while using
 his military identification card and military orders to support the criminal
 scheme was quite clearly service discrediting. See Art. 134, UCMJ, 10 USC §
 934; see also United States v. Brown, 45 MJ 389 (1996); United States v.
 Epps, 25 MJ 319 (CMA 1987). Lying to a firearms dealer about ownership of a
 weapon, particularly when all the parties involved are either servicemembers
 or family members, is certainly service discrediting.


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 United States v. Phanphil, No. 01-0620/AF


to that specification, the defense indicated the only issue was

whether there was a conspiracy, because the accused contended he

“never agreed with anybody to falsify any documents, even though

he did it, he never agreed to do it ahead of time.”

      In United States v. New, 55 MJ 95, 104 (2001), this Court

did not agree that “United States v. Gaudin, 515 U.S. 506 ...

(1995), requires that lawfulness of a regulation or order, in

terms of its relationship to other provisions of law, be treated

as an element of a disobedience offense.”    We noted that in

“Gaudin, there was no dispute as to whether the word ‘material’

constituted an element because the Government ‘conceded’ that

point.”   Id.   Although the Government did not expressly concede

that materiality was an element in this case, all the parties to

the trial recognized that the only issue was whether there was a

conspiracy -- that is, an agreement between the parties to falsify

the ATF record.

      There is a split of authority on the question whether

materiality under 18 USC § 922(a) is a question of fact or a

question of law.   Compare United States v. Klais, 68 F.3d 1282

(llth Cir. 1995)(distinguishing Gaudin and holding that question

whether identity of a gun purchaser is a “fact material to the

lawfulness of the transaction” is a question of law), with United

States v. Moore, 109 F.3d 1456 (9th Cir. 1997)(following Gaudin in




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 United States v. Phanphil, No. 01-0620/AF


reviewing instructions on materiality under 18 USC § 922(a)).   We

need not resolve the conflicting interpretations of 18 USC

§ 922(a) because any error was harmless beyond a reasonable doubt.

Appellant did not contest materiality and expressly admitted

materiality in his guilty plea to making a false statement.

      The decision of the United States Air Force Court of

Criminal Appeals is affirmed.




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United States v. Phanphil, No. 01-0620/AF

     SULLIVAN, Senior Judge (concurring in the result):


     Appellant was charged with violating 18 USC § 922(a)(6) (the

specification of Charge III) for allegedly making a material

false statement concerning the actual buyer of firearms which he

purchased for Private Raudz Bros, an otherwise eligible gun

buyer.   That statute states it is unlawful



           for any person in connection with the
           acquisition or attempted acquisition of
           any firearm or ammunition from a licensed
           importer, licensed manufacturer, licensed
           dealer, or licensed collector, knowingly
           to make any false or fictitious oral or
           written statement or to furnish or
           exhibit any false, fictitious, or
           misrepresented identification, intended
           or likely to deceive such importer,
           manufacturer, dealer, or collector with
           respect to any fact material to the
           lawfulness of the sale or other
           disposition of such firearm or ammunition
           under the provision of this chapter;


Id. (emphasis added).   He was also charged with conspiring with

Private Bros and others to commit this offense, in violation of

Article 81, Uniform Code of Military Justice, 10 USC § 881.



     Appellant pleaded guilty to violating 18 USC § 922(a)(6) and

admitted that he made a false statement with respect to a fact

material to the lawfulness of the sale, i.e., that he was the

actual buyer of the firearms.   (R. 40-41)    He pleaded not guilty

to a charge of conspiring to make such a false statement.    The

military judge instructed the members that materiality of the
United States v. Phanphil, No. 01-0620/AF

false statement was an element of the offense which was the

object of the charged conspiracy.    He further instructed them,

however, that “[t]he materiality of the alleged false statement

is not a matter with which you are concerned, but rather is a

question for the court to decide.” (R. 214)    Finally, he did not

instruct them further on the materiality of the alleged false

statement concerning the actual purchaser of the gun.



     On Issue I, I agree that a false statement as to the

identity of the actual buyer of a firearm, even if the actual

buyer is eligible to purchase the firearm himself, can be

punished under the above federal statute.    See United States v.

Nelson, 221 F.3d 1206 (11th Cir. 2000); United States v. Kind,

194 F.3d 900 (8th Cir. 1999); but see United States v. Polk, 118

F.3d 286 (5th Cir. 1997).   Accordingly, his guilty plea to

violating 18 USC § 922(a)(6) should be upheld.



     Turning to Issue II in this case, I conclude that error

occurred.   As noted above, the identity of the actual purchaser

of a gun could be, and in this case appellant admitted it was, “a

fact material to the lawfulness of the sale” with respect to the

charge of violating 18 USC 922 (a)(6).    (R. 40-41)   Accordingly,

materiality was an element of the offense which was the object of

the conspiracy, and the members were to be instructed on it with




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United States v. Phanphil, No. 01-0620/AF

respect to the conspiracy charge.* See United States v. Moore,

109 F.3d 1456, 1464 (9th Cir. 1997); see also United States v.

Veal, 153 F.3d 1233, 1255 (11th Cir. 1998); but see United States

v. Klais, 68 F.3d 1282 (11th Cir. 1995).         In my view, United

States v. Gaudin, 515 U.S. 506 (1995), was violated when the

military judge effectively removed this element of the underlying

offense from the members’ consideration.



    However, in view of appellant’s previous guilty plea to

violating 18 USC § 922(a)(6), I would affirm appellant’s

conviction for conspiring to commit that same offense.             Such a

result is permitted by the Supreme Court’s decision in             Neder v.

United States, 527 U.S. 1 (1999).         See United States v.

New, 55 MJ 95, 114 (2001) (Sullivan, J., concurring in the

result)(harmless error where no real contest on element).             There

simply was no dispute at this trial on this element of the

underlying offense.
*
  Military law contemplates that the members will be instructed on the
elements of the substantive offense which an accused is charged with
conspiring to commit. See para. 3-5-1, Military Judges’ Benchbook, Dept. of
the Army Pamphlet 27-9 at 174 (April 1, 2001); United States v. Canter, 42 CMR
753, 754 (ACMR 1970). The members must find that the alleged conspirators
agreed to commit this offense as defined by its essential elements. See
generally United States v. Yasbin, 159 F.2d 705 (3rd Cir. 1947); Cf. United
States v. McCoy, 539 F.2d 1050, 1063-64 (5th Cir. 1976).




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