Dissenting:

I

The Straw Man Purchase

At the time of the purchase of the firearm at issue, Mary Peggy Moore most certainly had the legal authority to buy it for her 14 year old son, had she chosen to do so. The government has never disputed this proposition. 1 Federal and Idaho law both would have accommodated such a purchase. All she had to do was exercise her judgment in favor of the purchase, walk into the store, place her name on the required form in the box marked “transferee,” put her or her son’s money on the counter, and give the gun to her son. Under these circumstances, she probably would not have had to touch the gun herself to make the transaction valid. This is the essence of the transaction Idaho and Congress had in mind when they conditioned the eligibility of juveniles to acquire a firearm on the approving judgment and involvement of a parent or guardian. The sine qua non of a juvenile’s eligibility to acquire a firearm is the genuine approval of a parent or a guardian. Without such approval and involvement, a juvenile is ineligible for this privilege.

In the case before us, however, Mrs. Moore turned down such a straightforward acquisition because she knew her gang member son was irresponsible and dangerous. As Judge Tashima accurately says, “Moore refused.to purchase the weapon herself for Bobby. She said she did not want her name on the papers, he could hurt somebody, and she didn’t think he needed the gun.” (emphasis added). But the actual testimonial evidence on this point is far more revealing than Judge Tashima’s characterization of it. The testimony comes from Jason Marks, Bobby’s friend who accompanied Bobby to the pawn shop and who was present during Bobby’s subsequent conversations with his mother. From this testimony emerges a striking fact: Mrs. Moore is the person who told her son he should use a straw man to accomplish his purpose. This is what happened.

(emphasis added).

Why did Mrs. Moore turn down her son’s request? Because she knew he was a dangerous delinquent. Thus, she rejected the lawful option available to her. In this respect, the system of firearms control put in place by Congress worked, but only partially.

According to the jury, Mrs. Moore’s next step in this process, unfortunately, was to aid and assist her son with a transaction which both Federal and Idaho law expressly forbid: the purchase of the coveted firearm by the minor Bobby himself pursuant to a plan hatched by him to circumvent the federal laws designed to prevent juveniles from purchasing weapons. To such a separate transaction by a 14 year old Mrs. Moore could not consent because the law prohibits it. With all respect to the majority, they simply miss this decisive point. Once she said “no,” refused to put her name on the papers, and told him he would have to find “a different way” involving “someone else” to get a gun, unless she later changed her mind, Mrs. Moore’s authority to arm her son ended, as did her son’s lawful ability to obtain the coveted handgun. Thus, Mrs. Moore’s assistance to her son that enabled him to acquire the money to purchase the gun “a different way” and through “someone else” was manifestly improper. When she helped him get the money for this gun, she became an accessory and a principal to his intended crime as well as a eoeonspirator.

Her first step in her son’s unlawful scheme was to assist him with his plan to use a straw man and a dupe,' Lee Roy Wiley. Unlike Mrs. Moore, Lee Roy Wiley had no lawful authority to purchase this firearm for Bobby. Wiley was neither Bobby’s parent, blood relative, or guardian. Had he gone into the store and told the truth — I’m just an acquaintance being paid to buy this handgun for my juvenile companion — his attempt would have failed. In fact, payment in compensation for his perfidious role was the factor that convinced Wiley to go along with this charge:

Mrs. Moore lied to Wiley when she told him the purchase was “fine with her.” It wasn’t. She had refused and continued to refuse to buy the gun for him. If, on the other hand, she meant it was okay with her that Bobby independently buy a gun for himself, her sentiment was irrelevant because the law neither accommodates nor honors such a purpose. Such a statement might reflect on Wiley’s state of mind or the store clerk’s behavior, but not on the legality of the purchase. More on this consequential point later.

The next step in this charade was to deceive the store clerk. While Mrs. Moore deliberately stayed in the car, the “someone else” straw man Wiley lied to the clerk about who he was, who was really buying the gun, and what was going to happen to it. Mrs. Moore’s plan was to stay out of the store and stay out of sight. Her role was to drive the car. However, the clerk upset her plan by exercising good judgment in trying to make sure that this purchase for a juvenile was *1576 lawful. Mrs. Moore responded by lying to the clerk and covering for the straw man Wiley. In so doing, she defeated both the clerk’s good intentions and the law. Had she not intervened with false statements, the transaction would have died on the spot, and possibly Officer Ronald Wade Feldner would have lived.

Her first false statement to the clerk was that the paid straw man Wiley was her son’s grandfather: a lie. Her second false statement to the clerk was that Wiley was going to hold the gun for Bobby until he was 21: a he. The third he was that “everything is fine with me.” It wasn’t fine with her at ah. She made that clear to Bobby (1) when he asked her to buy the gun for him and she told him he might hurt someone, (2) by conspiring to procure a straw man’s signature on the form, and (3) by attempting to wait in the car while the crime was being committed. Because of these material hes, the clerk was deceived into allowing the straw man Wiley, who also was lying about every material aspect of this unlawful transaction, falsely to enter his name, Lee Roy Wiley, in the space marked “TRANSFEREE’S (Buyer’s) SIGNATURE,” when the buyer was in fact the ineligible Bobby Moore. This is the final he and material false statement for which both Mary Peggy Moore and Wiley are criminally responsible. Lee Roy Wiley was not the “transferee buyer,” Bobby Moore was.

Mrs. Moore’s final act was to hand over the illegally purchased gun to Bobby even though she didn’t want him to have it. So - much for parental supervision. That it passed through her hands under these circumstances is of no moment in establishing lawful consent. Bobby Moore simply laundered this illegal straw man purchase through the dirty hands of his irresponsible parent and witless acquaintance. What this case boils down to in the light of the verdict handed down by the jury is Wiley as an illegal straw man buying the gun for Bobby, knowingly aided and abetted with specific intent by his mother. With these facts, it’s no wonder the jury convicted her of making false statements in connection with the purchase of a firearm, and for conspiracy.

Judge Tashima’s opinion rests entirely on the notion — rejected by the jury — that when Mrs. Moore told Wiley and the store clerk that “evexything was fine with her,” she had changed her mind from her original position against this acquisition. This view of the evidence, of course, was vigorously presented to the jury as Mrs. Moore’s sole defense, which was that because she consented to the purchase, there was no crime committed, period. The defense argued that Wiley was just her lawful agent implementing her decision, not a straw man, and that as a matter of law the statute was not violated. Whether she did change her mind, of course, was a pure question of historical fact for the jury to decide, not us on appeal. And decide it the jury did, against Mrs. Moore’s contentions. The instructions given to them perfectly describe both competing views of the evidence and render this point perfectly clear:

(emphasis added). Under these circumstances, a verdict of guilty can mean only that she did not change her mind and that a straw man purchase did take place. The choices presented by the government and Mrs. Moore were mutually exclusive. The defense failed in its attempt to persuade the jury of the factual basis necessary to support *1577 its claim that the sale was legally proper based on parental consent. In other more correct words, the factual argument that Mrs. Moore properly approved the acquisition of the gun was not even .sufficient to raise in the mind of any one of the twelve jurors a reasonable doubt against the prosecution’s claim that Bobby Moore was buying it for himself because his mother turned him down. Thus, the premise from which Judge Tashima argues his case is irreconcilable with the verdict. The majority’s holding is tantamount to rejecting the jury’s verdict as based on insufficient evidence.

If Judge Tashima is correct about Mrs. Moore changing her mind, why did she wait in the ear? Why all the lies about Wiley’s relationship to Bobby? Why pay Whey? Why the involvement of Wiley at all? Why defraud the reporting form? All Mrs. Moore’s hollow words to Wiley and the clerk demonstrate is adherence to her original decision not to go on the papers or to sanction the acquisition of this gun. Construing her words otherwise is like saying that a robber’s statement, “Give me all your money,” is really a request for a charitable contribution. Mrs. Moore’s words and her conduct must be judged, as did the jury, in context. The verdict ill this respect is fully supported by overwhelming evidence and thus immune on appeal. Judge Tashima’s view of the facts requires us to accept a series of lies by Mrs. Moore at face value, and then to put a spin on the lies not merited by the facts or the jury’s verdict.

In an attempt to bolster his claim that Mrs. Moore consented to this purchase, Judge Tashima borrows from another context the doctrine that whether an individual consents to something is to be measured objectively, in this case, by the plain meaning of what she said to the clerk. If Judge Tashima is correct, the very fraud itself becomes the vehicle that relieves Mrs. Moore of the fraud with which she is charged! This misuse of a doctrine removed from the reliance context for which it was intended is nothing short of bewildering. The fraud has cancelled the fraud. In my judgment, the clerk’s reliance on Mrs. Moore’s statements has absolutely no relevance to the charge that the statements themselves were false. Not only is the doctrine grossly out of place in a suit charging fraud, but the. strange result it produces ignores the intent of Congress, the purpose of the reporting form, the law prohibiting false statements, the straw-man doctrine, the facts of the case, Wiley’s signature on the misleading transaction form, and the conspiracy in which Mrs. Moore, Wiley, and her son were engaged.

In summary, to characterize this case as involving “parental consent” or “parental permission” based on the notion either (1) that Mrs. Moore changed her mind, or (2) that the fraud she perpetrated relieves her of the fraud she committed strong-arms the factual record supporting the verdict and the verdict itself. To underscore this point, I refer again to the unrebutted testimony of Jason Marks:

(emphasis added). A “different way” is indeed what Bobby Moore figured out, one strictly prohibited by law because he used a straw man to arm himself. This record read as a whole demolishes the idea that Mrs. Moore changed her mind. The record demonstrates unequivocally that she did not. The jury heard the appellant’s claim and flatly rejected it. A “different way” she ordered, and a “different way” , it was, a way prohibited by the statutes.

BATF Industry Circular 79-10 says that a dealer “may lawfully sell a firearm to a parent or guardian who is purchasing it for a minor child.” (emphasis added). It does not say that child can buy a firearm through a straw man who is not a guardian when his parent has refused to buy it for him. On the reverse side of the BATF Transfer Form, there is a ‘WARNING” that reads, “The sale or delivery of a firearm by a licensee to an eligible purchaser who is acting as an agent or intermediary or ‘straw purchaser’ [Wiley] for someone [Bobby Moore] the licensee *1578 knows or has reasonable cause to believe is ineligible to purchase a firearm directly, may result in a violation of the Federal firearms laws.” ' The relevant Senate Judiciary Committee report could not be clearer on one of the purposes of this law:

S.Rep. No. 1501, 90th Cong., 2d Sess., 22 (1968). U.S. Code Cong. & Admin. News p. 1397, 1400. The Committee Report accepted the idea that a juvenile could own a firearm, but only if “obtained for the minor or juvenile by the parent or guardian.” Id. At the risk of beating this point to death, Mrs. Moore did not obtain the firearm for her son, she enabled him unlawfully to obtain it himself through a straw man. She was careful to keep her fingerprints off the transaction, her name off the form, and to divorce herself from the role of responsible parent contemplated by Congress when it made allowances for juveniles under proper supervision. The jury’s unanimous verdict on this issue clearly establishes Bobby’s ineligibility with respect to the purchase.

I cannot find anywhere in the law room for a parent or guardian who decides against doing what the law allows then to delegate whatever original authority she might have had to the minor or to “someone else” with no legal standing to make such a decision. If Mrs. Moore wishes to invoke the role "of responsible parent as a shield to the gun control law, she must demonstrate that she acted as contemplated by the controlling statutes. This she has failed to do. Instead, she abandoned her role as a responsible parent envisioned by Congress and with it her entitlement to use that privileged status as a defense to these charges. The jury so found. Just as Wiley was a straw man, she was a straw parent. This behavior and this set of facts cannot be what Congress had in mind when it carved out an exception from these important gun control laws for parents and guardians. The evidence in this case is more than sufficient to sustain the convictions. In fact, the direct testimony of Jason Marks is uniquely overpowering to establish Bobby Moore’s ineligibility to have this firearm.

Thus, I respectfully disagree with Judge Tashima’s claim that applying the straw man false statements doctrine would not effectuate the purposes of this statute, to the contrary. The facts make it clear that Mrs. Moore did not and never would have signed the papers herself. In Perri v. Dept. of Treasury, 637 F.2d 1332, 1336 (9th Cir.1981) we said,

Congress said it would allow .Mrs. Moore to determine whether her son was a “potentially irresponsible and dangerous person,” and to render him eligible to have a firearm. She denied him this privileged status. Congress certainly was correct when it stated that guns improperly in the hands of juveniles are a “serious problem for law enforcement”: Bobby Moore took the gun and wantonly, deliberately, and purposefully murdered Officer Ronald Wade Feldner with it.

Stop for a moment to ask why Wiley was involved in this transaction. The illuminative answer disposes of the issue: Wiley was involved only because Bobby could not buy the gun for himself and because Mrs. Moore would not buy it for him, leaving Bobby legally ineligible to. have it. Wiley is an archetypal straw man, and his involvement is the smoking gun that conclusively proves both the illegality of this purchase and the existence of the conspiracy. Without the straw man Wiley, this intended purchase by Bobby does not occur, and this firearm at least could never have been used by him to kill. The testimony of the clerk who sold the gun to Wiley is dispositive on this point:

The importance and integrity of the Firearms Transaction Record is at the heart of Congress’ purpose “ ‘to make it possible to keep firearms out of the hands of those not legally entitled to possess them because of age, criminal background, or incompetency.’ ” United States v. Pruner, 606 F.2d 871, 874 (9th Cir.1979) (quoting S.Rep. No. 1501, 90th Cong., 2d Sess., 22 (1968) U.S. Code Cong. & Admin. News at 1400). As underscored by the Supreme Court,

Huddleston v. United States, 415 U.S. 814, 825 , 94 S.Ct. 1262, 1268-69 , 39 L.Ed.2d 782 (1974) (emphasis added) (citations omitted).

Allowing a straw man to buy this gun for an ineligible purchaser and to defeat the information controls built into the reporting form manifestly frustrates the unmistakable intent of the statute. This fact pattern and irresponsible behavior is exactly what Congress had in mind in enacting this legislation. On its face, the transaction reporting form with Wiley’s name on it misleads the government and law enforcement and is worse than useless. Judge Tashima’s opinion guts the very purpose of the reporting form.

Accordingly, Judge Tashima’s opinion is inconsistent not only with the statutes and our circuit’s settled straw man doctrine, but it is also irreconcilable with the straw man doctrine as articulated in the Fifth, Sixth, Seventh, and Eighth Circuits. This leaves the law of the Ninth Circuit not only incorrect, but at odds with most of the rest of the nation as well as the intent of Congress in looking to the reporting form as the “prime guarantee” of the Act’s effectiveness. In each of the other circuits, the proper focus of the straw man doctrine is the recipient’s ineligibility to purchase a firearm and the integrity of the information presented to the seller. See United States v. Ortiz-Loya, 777 F.2d 973 (5th Cir.1985); United States v. Hern, 926 F.2d 764 (8th Cir.1991); United States v. Lawrence, 680 F.2d 1126, 1128 (6th Cir.1982); United States v. Howell, 37 F.3d 1197, 1202 (7th Cir.1994) cert. denied — U.S. -, 115 S.Ct. 1810 , 131 L.Ed.2d 735 (1995). In Lawrence , for example, the Sixth Circuit found determinative of straw man status that, like the ease at hand, the transferee acted under the direction and control of the ineligible buyer, purchased weapons selected by him with his money, took a commission that showed agency, and had no intention of keeping the gun for himself. Id. at 1128 . Here, and with grievous consequences, Judge Tashima’s opinion relegates both Bobby Moore’s legal ineligibility and the fraud on the reporting form to irrelevancy.

The irony is that the majority’s opinion blesses this dishonorable transaction and allows an ineligible and murderous juvenile to obtain a firearm through a lying straw man when an adult cannot. The surprising secret of such an acquisition is not having a parent who obeys the law, but having a parent who steadfastly refuses to follow the law and who schemes instead to defeat it by suggesting to her son that he use a straw man to accomplish his unlawful purpose. This case stands for the bizarre and irrational proposition that because Mrs. Moore was generally empowered to arm her minor son, he could arm himself through a straw man even though she had explicitly confronted ;the critical empowering decision given to her by Congress and said, “no.”

I respectfully believe that my able colleagues have been seriously led off the track by mistakenly looking at this as a who-can-buy-a-gun-for-a-minor case rather that what it is, a straw man, false statements, case. *1580 The defendants were convicted of knowingly making false statements, not purchasing a gun for a juvenile. My colleagues erroneously conflate these concepts and fall into a Bermuda Triangle of their.own making. The proof of their distraction lies in their bizarre claim that the fraud eliminates the fraud. The skillful factually based defense rejected by the jury has worked on appeal. I am unable, however, to fathom the source of the majority’s distraction. Before the trial, the district court clearly spelled out the issues:

The jury found beyond a reasonable doubt that Bobby bought the gun for himself and that contrary to the claims made by Mrs. Moore, a material false statement/straw man transaction did occur. The result reached by the majority simply lacks empirical and legal underclothes.

II

The Instructions on Materiality

Appellants Moore and Wiley appeal on a second ground. They argue that the district judge violated the Gaudin rule, United States v. Gaudin, - U.S. -, 115 S.Ct. 2310 , 132 L.Ed.2d 444 (1995), when he orally instructed the jury inter alia as follows:

Jury Instruction No. 14 (excerpt).

Gaudin is a ease involving allegations of criminal false statements in violation of 18 U.S.C. § 1001 . The problem in Gaudin arose because the district court handled the issue of the materiality of the alleged false statements — which is an element of the crime — as a matter for the court to decide, not the jury. The court instructed the jury that “[t]he issue of materiality ... is not submitted to you for your decision but rather is a matter for the decision of the court. You are instructed that the statements charged in the indictment are material statements.” — U.S. at -, 115 S.Ct. at 2313 .

The Supreme Court held that such an approach to the issue and such an instruction violated both the Fifth and the Sixth Amendments to the United States Constitution which together “require criminal convictions to rest upon a jury determination that the defendant is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.” Id. at-, 115 S.Ct. at 2313 (emphasis added). The Court concluded by saying that “[t]he trial judge’s refusal to allow the jury to pass on the ‘materiality’ of Gaudin’s false statements infringed that right [to have a jury decide].” Id. at-, 115 S.Ct. at 2320 . The rule of this circuit is that if such a constitutional error occurred, it was both “structural” and “plain” and requires reversal. United States v. Gaudin, 28 F.3d 943, 952 (9th Cir.1994), aff'd, — U.S. -, 115 S.Ct. 2310 , 132 L.Ed.2d 444 (1995).

The question we must answer, therefore, is whether the part of the instruction of which the defendants complain withheld the element of materiality from this jury in violation of Gaudin !s rule. My answer is that it did not.

Unlike what happened in Gaudin, here the court did not withhold the materiality element from the jury. The jury was expressly told that materiality was an element of the charged offense, and that as an element of the crime it had to be proved beyond a reasonable doubt:

(emphasis added).

Moreover, the jury was instructed that “[t]he burden is always upon the government to prove guilt by proof beyond a reasonable doubt.”

It is also noteworthy that when the instructions were being discussed with counsel before they were read to the jury, no one objected that the instruction now complained of violated the Gaudin rule, a rule established first by a three-judge panel of this court on June 22, 1993, and then affirmed en banc on June 21,1994, more than two months before the trial. It is inconceivable that the able and experienced defense counsel in this case did not know of this rule, and they do not now claim ignorance at the time of the trial of it. Moreover, the district court offered to enhance the instructions on the materiality element by giving an additional instruction offered by counsel for Mr. Wiley, but the request was withdrawn. What happened between court and counsel during this conference sheds light on this issue:

(emphasis added).

Mr. Nevin, counsel for Mrs. Moore, also addressed Instruction No. 14 in this conference, and he too did not object on Gaudin grounds. What he said about the disputed language was not that it withdrew the materiality element from the jury’s consideration, but that it was “a comment on the evidence.”

■ From these exchanges, it is clear that no one believed during the trial that the disputed instruction violated Gaudin.

The Gaudin issue arose for the first time in a motion for a new trial after the chosen defense had failed. Counsel for Mr. Wiley argued to the court that “materiality is always an issue that needs to be submitted to the jury ...,” to which the court responded, “I did submit it to the jury.” To prove his point, the court then read the same instructions to counsel previously quoted in this opinion. Counsel’s response was:

Nevertheless, counsel made the same point that they make here, i.e., that the language in Instruction 14 had the effect of withdrawing consideration of this element for the jury’s consideration. The court discussed *1582 the matter with counsel and then disagreed, denying the motion for a new trial. The record viewed as a whole supports the court’s conclusion: the question of materiality remained with the jury.

This leaves us, however, with the question of whether the jurors were mislead or confused by the dispute language in Instruction No. 14. They were not. How do we know this with certainty? Because during deliberations they sent a question to the judge inquiring about the interplay in the instructions between intent and materiality. This is the question

One can conclude from this question only that the jury understood that the element of materiality was for them to decide, and that they were attempting to decide it. There is no sign they believed or did otherwise.

Moreover, when the court answered the jurors’ question, he told them again that this essential element was on their table for decision:

Supplementary Instruction, given Sept. 15, 1994 (emphasis added). If the earlier statement in Instruction 14 might have been a problem, this certainly cured it. Thus, when I view the instructions “as a whole in the context of the entire trial to determine if they were misleading or inadequate to guide the jury’s deliberation,” United States v. Perez, 989 F.2d 1111, 1114 (9th Cir.1993), I conclude they do not suffer from this defect.

There is a reason, of course, that explains Mr. McCabe’s withdrawal of his enhanced materiality instruction as well as both counsels’ disinclination to get too close to the materiality issue as framed by the prosecution. As Mr. McCabe candidly admitted at oral argument, he did not want the jury precisely to focus on the materiality of the alleged false statements made by Mr. Wiley for fear that such a focus would distract the jury from the substance of the defense, which as described earlier in this opinion was that none of the statements made by Wiley and Mrs. Moore could qualify as material false statements because no crime was being committed in that Mrs. Moore approved of the purchase. As Mr. Nevin says in his excellent brief,

(emphasis in original). This tracks exactly the argument Mr. Nevin made to the jury at the end of the case, demonstrating also that the materiality element was considered by all to be in play and not to have been preempted by the court. In fact, materiality was the essence of both defendants’ defense. With this in mind, to me it is absolutely clear beyond a reasonable doubt that the court’s disputed statement in Instruction No. 14 read in context and measured against (1) the *1583 evidence, (2) the substance of the defense, and (3) the verdict was completely harmless. See Perez, 989 F.2d at 1115-1116 (telling the jury that “carrying,” for purposes of establishing the offense of carrying a firearm in relation to a drug trafficking offense, was shown conclusively if the firearm was within the defendant’s reach was harmless beyond a reasonable doubt).

CONCLUSION

I would affirm the convictions of both Mrs. Moore and Mr. Wiley. 2

. Judge Quackenbush asked the prosecutor before the trial if he had "any disagreement [under state or federal law] with the fact that Mrs. Moore as the mother, could, if she had a firearm or if she wanted to, she could buy a firearm and give it to Bobby Moore.” The prosecution said, "No,” to which the court responded, "But that’s not what she’s charged with.” Moreover, the jury was instructed that Idaho law “permitted a parent to deliver a firearm to a minor child ...,” and that no federal law “prevented or prohibited” such a delivery or transfer.

. Their other claims are equally without merit, i.e., (1) the Court did not err in denying Mrs. Moore a sentencing adjustment for acceptance of responsibility; and (2) the Gun Control Act is neither constitutionally vague on its face or as applied.