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A federal court has dismissed the allegation that a man lied on a federal form when purchasing firearms, determining it is not a violation to buy weapons for the purpose of reselling them.

“Notwithstanding the evidence that Defendant purchased these weapons for resale in Mali, I therefore conclude that the United States has not demonstrated probable cause to believe that Defendant made a false statement,” wrote U.S. Magistrate Judge N. Reid Neureiter in a Dec. 16 order.

The U.S. Attorney’s Office charged that Mamadou Kouyate purchased 13 firearms in January 2019 from a dealer in Denver, attesting on the transaction record that he was the actual purchaser of the guns when he allegedly was not. The form from the Bureau of Alcohol, Tobacco, Firearms and Explosives warns that “You are not the actual transferee/buyer if you are acquiring the firearm(s) on behalf of another person.”

Six days after the purchase, airport authorities found two of the pistols in the luggage of Kouyate’s wife on her way to Mali. She explained to Customs and Border Patrol personnel that her husband had instructed her to give the guns to his brother in Bamako, Mali, for his own protection in the African country.

In October of this year, when Kouyate and his wife were interviewed for their citizenship applications by U.S. Citizenship and Immigration Services, Kouyate provided the same explanation for the guns found at the airport, while elaborating that he was trying to start a gun club in Mali to export weapons. Over the prior year and a half, he had purchased 106 pistols, including up to 20 at one time, from the Denver gun shop.

Investigators believed Kouyate was involved in firearms trafficking, with the intent to transfer the guns purchased to someone else. ATF Special Agent Joseph Acosta attested that Kouyate “knowingly made a false and fictitious written statement” on the federal form.

The defense, in turn, argued the language of the form was meant to address straw purchases, in which the purchaser is acting on behalf of another person ineligible to buy a gun with the intent to transfer to them.

“The statute requiring affirmation that you are the ‘buyer’ is not meant to control the secondary market — what happens to the gun after it is bought,” wrote David S. Kaplan, an attorney with Haddon, Morgan and Foreman in Denver. “No evidence was presented that supports Mr. Kouyate having been sent in to purchase a firearm by and for another individual.”

Neureiter expressed doubts over Kouyate’s plans to start a gun club in Mali, speculating it was more likely Kouyate planned to resell the guns in Mali for a profit. Nevertheless, the government did not provide evidence that the purchase of firearms for resale constituted a false answer to the actual buyer question, given the wording on the form.

“First, there was no intention by Congress with this statute to regulate the secondary gun market,” wrote Neureiter, in dismissing the criminal complaint against Kouyate. “Second, the ATF instructions on the ATF Form 4473 fail to give any guidance as to whether a subsequent potential resale of a gun makes a purchaser something other than the ‘actual transferee/buyer.’ The form is ambiguous on this point.”

In 2014, the U.S. Supreme Court decided by 5-4 that a former Virginia police officer made a false statement on the form when he used his law enforcement discount to purchase a handgun for his uncle. In that instance, however, the defendant used his uncle’s money for the purchase and knew all along who the intended buyer was, unlike Kouyate.

Neureiter added there were “likely other offenses committed” in connection with Kouyate’s purchase and exportation of the handguns.

The U.S. Attorney’s Office for Colorado said in a statement that it is reviewing the magistrate judge’s decision and deciding its next steps.

The case is USA v. Kouyate.

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