                       RECOMMENDED FOR FULL-TEXT PUBLICATION
                            Pursuant to Sixth Circuit Rule 206
                                   File Name: 12a0249p.06

               UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                 _________________


                                               X
                          Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                -
                                                -
                                                -
                                                    No. 11-5505
          v.
                                                ,
                                                 >
                                                -
                       Defendant-Appellant. -
 EDWING RONAL MORALES,
                                               N
                  Appeal from the United States District Court
               for the Middle District of Tennessee at Nashville.
          No. 3:09-cr-226-5—Todd J. Campbell, Chief District Judge.
                                      Argued:
                          Decided and Filed: August 7, 2012
           Before: BOGGS, NORRIS, and KETHLEDGE, Circuit Judges.

                                   _________________

                                       COUNSEL
ON BRIEF: Peter J. Strianse, TUNE, ENTREKIN & WHITE, P.C., Nashville,
Tennessee, for Appellant. Philip H. Wehby, UNITED STATES ATTORNEY’S
OFFICE, Nashville, Tennessee, for Appellee.
                                   _________________

                                        OPINION
                                   _________________

        ALAN E. NORRIS, Circuit Judge. Defendant Edwing Ronal Morales appeals
his convictions for two counts of making false statements during the purchase of a
firearm from a federally licensed dealer, in violation of 18 U.S.C. § 922(a)(6), following
a jury trial. He raises three issues on appeal. First, Morales argues that the district court
erred in denying his Rule 29(a) motion for judgments of acquittal. Specifically, he
argues that his misrepresentations as to the identity of the actual purchaser of the
firearms, arising out of attempted straw purchases on behalf of his friend Julio Cesar



                                             1
No. 11-5505        United States v. Morales                                       Page 2


Rojas-Lopez, were not material to the lawfulness of the transactions because Rojas-
Lopez was himself an eligible purchaser. Second, Morales argues that, even assuming
that Section 922(a)(6) applies to his conduct, the scope of the statute is so ambiguous
that the district court should have applied the rule of lenity and, as a result, we must
reverse his convictions. Third and finally, Morales argues that the district court abused
its discretion in excluding as irrelevant a 1979 Bureau of Alcohol Tobacco and Firearms
(“ATF”) circular providing guidance on lawful straw purchases because this circular was
probative of the good faith defense he pursued at trial.

                                           I.

       A grand jury indicted Edwing Ronal Morales and four codefendants on forty total
counts, all in connection with an alleged conspiracy to fraudulently purchase and export
firearms to Guatemala. According to the indictment, Morales misrepresented on
statutorily required purchase forms, known as Firearms and Explosives Form 4473, that
he was the actual buyer of various semi-automatic pistols “when in fact as [Morales]
then knew, he was not the actual buyer of the firearms.” Morales proceeded to trial on
the two counts charging him with making false statements; the remaining charges against
him were dismissed on motion by the government.

       At trial, Morales conceded that he had attempted to purchase three firearms on
behalf of codefendant Julio Cesar Rojas-Lopez, a longtime friend. Morales and Rojas-
Lopez went to a gun dealer in both May and July of 2009 and each time Morales
executed a Form 4473 for the firearms listing himself as the actual purchaser, but, both
times, he inexplicably failed the background checks. Morales, then working as a police
officer, testified that he had believed that straw purchases of firearms were lawful so
long as both parties were eligible purchasers and, as a precaution, he had verified that
Rojas-Lopez was a non-felon.

       After the close of the government’s case-in-chief, Morales moved for judgments
of acquittal on both counts, pursuant to Federal Rule of Criminal Procedure 29(a). In
general, Morales argued that 18 U.S.C. § 922 prohibits only “the sale of firearms through
third-party intermediaries to persons ineligible under the Gun Control Act to purchase
No. 11-5505        United States v. Morales                                            Page 3


firearms themselves.” Under this theory, if the actual purchaser were himself eligible,
any misrepresentation as to his identity could not be material to the lawfulness of the
transaction. Because “Mr. Rojas-Lopez was not a prohibited person,” Morales insisted
that misrepresenting himself as the “actual or true purchaser on the 4473 form could
never be material as contemplated by the statute.”

       The court denied Morales’s motion, ruling that the prohibition against making
false statements found in Section 922(a)(6) is “not limited just to prohibited persons”
and stressing that Rojas-Lopez was apparently attempting to acquire the firearms for an
unlawful exporting scheme. The court explained,

       It is clear in this particular case Mr. Rojas-Lopez was attempting to
       conceal that he was making multiple purchases through other people.
       Apparent motive apparently was so there wouldn’t be an aggregated
       record of what he was doing at multiple places and certainly to secrete
       that his intention to export, and those are also appropriate policy reasons
       under the statute that Congress could recognize. And I don’t think the
       statute on its face is limited to the false statements regarding a prohibited
       person. A person who is not prohibited can engage in prohibited activity,
       and that’s also unlawful.

       Morales was convicted by the jury on both counts and was ultimately sentenced
to fifteen months of imprisonment on each count, to run concurrently.

       We review de novo a district court’s denial of a Rule 29(a) motion for judgment
of acquittal. United States v. Wettstain, 618 F.3d 577, 583 (6th Cir. 2010). We also
review de novo questions of statutory interpretation. United States v. Morris, 203 F.3d
423, 424 (6th Cir. 2000) (per curiam).

       Under 18 U.S.C. § 922(a)(6), 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 provisions of this chapter . . . .
No. 11-5505         United States v. Morales                                         Page 4


18 U.S.C. § 922(a)(6) (emphasis added). To sustain a conviction under Section
922(a)(6), the government must prove beyond a reasonable doubt that “(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).

        Morales argues, as he did before the district court, that 18 U.S.C. § 922(a)(6)
does not apply to straw man sales involving two eligible purchasers. He points out that
this interpretation was adopted by the Fifth Circuit in United States v. Polk, 118 F.3d 286
(5th Cir. 1997). In that case, the court held that Section 922(a)(6) liability does not
attach where “the true purchaser can lawfully purchase a firearm directly.” Id. at 295.

        That reasoning, however, was explicitly rejected by the Eleventh Circuit in
United States v. Frazier, 605 F.3d 1271, 1280 (11th Cir. 2010). The court explained that

        [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 purchase 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. (citations omitted).

        Concluding that the Frazier court’s reasoning is sound, we likewise hold that the
identity of the actual purchaser is material to the lawfulness of a firearms transaction.
The identity of the purchaser is, of course, central to the determination of his eligibility
or ineligibility to purchase a firearm. Where, as here, the purchaser is in fact eligible to
purchase the firearm, his identity is no less material to the lawfulness of the transaction.
Morales, in misrepresenting the identity of the actual purchaser of the firearms, violated
Section 922(a)(6) and we affirm his convictions.
No. 11-5505            United States v. Morales                                         Page 5


                                               II.

           However, Morales argues that, even if his conduct falls under Section 922(a)(6),
the scope of the statute is so ambiguous that the district court should have applied the
rule of lenity and, as a result, we should reverse his convictions. Because Morales failed
to raise this issue below, our review is only for plain error. United States v. Osborne,
673 F.3d 508, 511 (6th Cir. 2012).

           The rule of lenity only applies if, “after considering text, structure, history, and
purpose, there remains a grievous ambiguity or uncertainty in the statute, such that the
Court must simply guess as to what Congress intended.” Barber v. Thomas, ___ U.S.
___, 130 S. Ct. 2499, 2508-09 (2010) (quotation marks and citations omitted). We have
described the rule of lenity as “a tiebreaker of last resort” that is appropriate only when,
“after consulting traditional canons of statutory construction, we are left with an
ambiguous statute.” United States v. Canal Barge Co., Inc., 631 F.3d 347, 353 (6th Cir.
2011) (quotation marks and citation omitted).

           The scope of Section 922(a)(6) is not so vague as to require the application of the
rule of lenity and the reversal of Morales’s convictions, particularly under plain error
review. The statute explicitly prohibits a purchaser from making any false statements
“with respect to any fact material to the lawfulness of the sale or other disposition” of
a firearm. 18 U.S.C. § 922(a)(6). As we have explained, false statements regarding the
actual buyer’s identity are material to the lawfulness of the transaction and are thus
unambiguously prohibited under the statute. Therefore, Morales’s attempted straw
purchase on behalf of an undisclosed, albeit eligible, purchaser clearly ran afoul of the
statute.

                                              III.

           At trial, Morales pursued a good faith defense, generally arguing that he did not
knowingly violate Section 922(a)(6) because he reasonably believed that it was lawful
to purchase a firearm and complete Form 4473 on behalf of another eligible purchaser.
In support, he sought to admit into evidence an ATF circular from 1979 regarding lawful
No. 11-5505          United States v. Morales                                        Page 6


straw purchases. According to Morales, the circular explained that the Gun Control Act
“does not necessarily prohibit a dealer . . . from making a sale to a person who is actually
purchasing the firearm for another person.” The district court excluded the circular,
finding that Morales could not prove that it was “relevant to the time period in question.”

        We review a district court’s evidentiary rulings only for abuse of discretion.
United States v. Marrero, 651 F.3d 453, 471 (6th Cir. 2011). In addition, “reversal is
appropriate only if the abuse of discretion was not harmless error, that is, only if the
erroneous evidentiary ruling affected the outcome of the trial.” Id. (quotation marks and
citation omitted).

        Under Federal Rule of Evidence 401, evidence is relevant, and generally
admissible, if it has “any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it
would be without the evidence.” Fed. R. Evid. 401 (amended 2011).

        The district court did not abuse its discretion in excluding the 1979 ATF circular
as irrelevant. Morales did not claim that he was aware of this circular at the time of the
attempted firearms purchases or that he relied on its guidance in interpreting his
disclosure responsibilities under Section 922(a)(6). Further, he conceded that the
circular had not been in effect since 2005. Based on these facts, we affirm the district
court’s judgment that this circular, both outdated and unknown to Morales at the time
of his offenses, did not tend to support Morales’s good faith defense.

                                            IV.

        The judgment of conviction is affirmed.
