We disagree. Although the use of a "middleman" may be common practice at gun shows, ยง 922(b) "is violated by a sham sale made to a resident when the transaction is really with a nonresident, and it is for the jury to decide, on all the relevant evidence . . . whether such a charade occurred or whether there was a bona fide sale to a resident." United States v. Brooks, 611 F.2d 614, 619 (5th Cir. 1980) (subsequent history omitted); see also United States v. Lawrence, 680 F.2d 1126, 1128 (6th Cir. 1982) (toleration of sham sales would in effect be "tantamount" to repeal of gun control legislation). We agree with the government that there was sufficient evidence from which the jury could find that Hern knew the transactions were sham.
One basis for this approach seems to be that inconsistent defenses will tend to "confuse" the jury, see Sears, supra, 343 F.2d at 143, due to the "inherent inconsistency" in saying at the same time that "I didn't do it," and "the government tricked or seduced me into doing it." United States v. Brooks, 611 F.2d 614, 618 (5th Cir. 1980). However, the now "fundamental rule that a defendant may not alternatively rely on inconsistent defenses of entrapment and denial of the commission of the crime has come under increasing attack," United States v. Hill, 626 F.2d 1301, 1303 n. 2 (5th Cir. 1980).
Similar instances abound. In United States v. Brooks, 611 F.2d 614 (5th Cir. 1980), Brooks did not deny selling guns illegally: only that he intended to violate the law. 611 F.2d at 616-17.
Here, the defendants correctly concede that federal law prohibits participation by both buyers and sellers in straw purchases of firearms. See United States v. Ortiz, 318 F.3d 1030, 1038-39 (11th Cir. 2003) (upholding conviction of individual acting as straw purchaser); United States v. Nelson, 221 F.3d 1206, 1209-11 (11th Cir. 2000) (upholding conviction of "actual buyer" in straw purchase transaction); United States v. Brooks, 611 F.2d 614, 616 (5th Cir. 1980) (upholding conviction of seller in straw purchase transaction). However, the defendants argue that it is unclear whether federal law prohibits sales to straw purchasers in the context of this case, focusing specifically on whether participation in a simulated straw purchase is illegal.
Even assuming that ยง 925(a)'s exemption extends to "sell[ing]" firearms, 18 U.S.C. ยง 922(a)(5), this Court has held specifically that it does not apply to sales to undercover government agents. See Perri, 637 F.2d at 1337 (citing United States v. Brooks, 611 F.2d 614, 617-18 (5th Cir. 1980) (stating that ยง 925(a) "does not exempt any sale or delivery of firearms[,] [but] . . . expressly covers only the `transportation, shipment, receipt, or importation' of firearms `for the use of the United States'"), overruled on other grounds by United States v. Henry, 749 F.2d 203, 206 n. 2 (5th Cir. 1984) (en banc)). The fact that Perri. involved a license revocation proceeding and not a criminal prosecution does not undermine this interpretation, particularly as Perri relied on Brooks, a criminal case, for its conclusion.
The Fifth Circuit rejected an analogous argument that section 922(a)(6) was constitutionally vague as applied to a straw transaction in United States v. Brooks, 611 F.2d 614, 617 (5th Cir. 1980), overruled on other grounds, United States v. Henry, 749 F.2d 203 (5th Cir. 1984). In Brooks, a gun dealer was convicted for an illegal straw sale to a nonresident.
The jury was entitled to assess the credibility of the witnesses and to disbelieve Straach's feigned innocence of the illegality of strawman transactions. The facts of this case are similar to those of United States v. Brooks, 611 F.2d 614, 616 (5th Cir. 1980), in which this court upheld a conviction under 18 U.S.C. ยง 922(b)(3) for the sale of firearms by a licensed Florida dealer to a nonresident. In Brooks, a nonresident attempted to buy a gun, but was told that to do so he would have to return with someone who was a Florida resident.
The consistency of the defenses presented by a defendant depends largely on what part of the prosecution's case he or she admits is true. While this Court has often held that a defendant asserting entrapment must admit all the criminal acts upon which the prosecution builds its case, United States v. Nicoll, 664 F.2d 1308 (5th Cir. Unit B), cert. denied, 457 U.S. 1118, 102 S.Ct. 2929, 73 L.Ed.2d 1330 (1982); United States v. Crossman, 663 F.2d 607, 610 (5th Cir. 1981), cert. denied, 456 U.S. 977, 102 S.Ct. 2243, 72 L.Ed.2d 851 (1982); United States v. Brooks, 611 F.2d 614, 618 (5th Cir. 1980); United States v. Williamson, 482 F.2d 508, 515 (5th Cir. 1973); Government of the Canal Zone v. Risbrook, 454 F.2d 725 (5th Cir. 1972); McCarty v. United States, 379 F.2d 285 (5th Cir.), cert. denied, 389 U.S. 929, 88 S.Ct. 291, 19 L.Ed.2d 281 (1967); Beatty v. United States, 377 F.2d 181, 186 (5th Cir.), rev'd on other grounds, 389 U.S. 45, 88 S.Ct. 234, 19 L.Ed.2d 48 (1967), there are several recognized exceptions to this rule. The first, not applicable in this case, occurs when the government's case-in-chief injects substantial evidence of entrapment into the case.
United States v. Garrett, 716 F.2d 257, 269-71 (5th Cir. 1983); United States v. Greenfield, 554 F.2d 179, 181-83 (5th Cir. 1977), cert. denied, 439 U.S. 860, 99 S.Ct. 178, 58 L.Ed.2d 168 (1978); United States v. McKinley, 493 F.2d 547, 550-51 (5th Cir. 1974); United States v. Harrell, 436 F.2d 606, 611-12 (5th Cir.) cert. denied, 409 U.S. 846, 93 S.Ct. 49, 34 L.Ed.2d 86 (1972); United States v. Smith, 407 F.2d 202, 203-04 (5th Cir. 1969), cert. denied, 397 U.S. 949, 90 S.Ct. 972, 25 L.Ed.2d 131 (1970); Sears v. United States, 343 F.2d 139, 142-44 (5th Cir. 1965); United States v. Henderson, 237 F.2d 169, 171-72 (5th Cir. 1956).United States v. Rey, 706 F.2d 145 (5th Cir. 1983), cert. denied, ___ U.S. ___, 104 S.Ct. 698, 79 L.Ed.2d 164 (1984); United States v. Nicoll, 664 F.2d 1308 (5th Cir.), cert. denied, 457 U.S. 1118, 102 S.Ct. 2929, 73 L.Ed.2d 1330 (1982); United States v. Brooks, 611 F.2d 614 (5th Cir. 1980); United States v. McCarty, 379 F.2d 285 (5th Cir. 1967). See also United States v. Deutsch, 475 F.2d 55, 57 (5th Cir. 1973).
18 U.S.C. ยง 925(a)(1). This subsection does not exempt a sale of firearms through an undisclosed under-cover agent of the United States. United States v. Brooks, 611 F.2d 614 (5th Cir. 1980). To excuse a dealer's willful violation of the Act by selling to an unlawful purchaser simply because the government ultimately receives the firearm would circumvent the Act in a way Congress did not intend.