United States of America v. Matthew Queen

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-3189
U NITED S TATES OF A MERICA ,
Plaintiff-Appellee,
v.
M ATTHEW Q UEEN ,
Defendant-Appellant.
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Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 03 CR 163—Larry J. McKinney, Chief Judge.
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A RGUED J ANUARY 26, 2005—D ECIDED M AY 12, 2005
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Before POSNER , M ANION , and W OOD , Circuit Judges.
M ANION , Circuit Judge. Matthew Queen repeatedly
falsified his address on Bureau of Alcohol, Tobacco, Fire-
arms, and Explosives (ATF) Form 4473 when buying guns,
and eventually entered a conditional guilty plea to one
count of making a false statement to a federal firearms
dealer, in violation of 18 U.S.C. § 922(a)(6). The district court
sentenced Queen to 21 months’ imprisonment and three
years’ supervised release. He argues on appeal, as he did in
his motion to dismiss the indictment, that providing a false

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2 No. 04-3189
address on a form 4473 is not a crime because a person’s
address is not “a fact material to the lawfulness of the sale”
of a firearm.
I.
Between late December 2000 and July 2001, Queen
purchased 39 firearms from federally licensed dealers in the
State of Indiana. The guns cost more than eleven thousand
dollars, and at least eleven of them later were recovered at
crime scenes in the Detroit and Chicago areas. Gun sale
records linked the purchases back to Queen. For each
purchase Queen completed an ATF Form 4473 requiring
him to provide his “Residence Address,” defined on the
form as “No., Street, City, County, State, ZIP Code.” On the
forms he represented his address as 2072 Egret Court in
Indianapolis, Indiana. Queen in fact had once lived in an
apartment at 2072 Egret Court, but he did not live at this
address when he completed the forms and bought the guns
because he was evicted on December 18, 2000, for nonpay-
ment of rent. Neither the government nor Queen presented
evidence of his true address at the time of the gun purchases.
Queen moved to dismiss pursuant to Fed. R. Crim. P.
12(b)(3)(B), arguing that the indictment fails to allege an
offense because, according to Queen, the address given in
completing a Form 4473 is not material to the lawfulness of
the sale of a firearm. The district court denied Queen’s mo-
tion on the ground that every court to address the issue has
rejected Queen’s position. Queen then entered a conditional
guilty plea, reserving the right to appeal the district court’s
denial of his motion to dismiss, and to withdraw his guilty
plea if he prevails on appeal.

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No. 04-3189 3
II.
We review de novo Queen’s challenge to the sufficiency of
the indictment. United States v. Daniels, 387 F.3d 636, 638
(7th Cir. 2004). In Queen’s view, the only fact about resi-
dence that is material to the lawfulness of a gun sale is the
buyer’s state of residence, a matter about which he told the
truth.
Queen’s only authority for his position is a district court
opinion that has not been accepted by any circuit and in fact
is not even good law in the district where the case was de-
cided. He cites United States v. Benton, 329 F. Supp. 331, 332
(D. N.H. 1971), in support of his argument that “what is at
issue in a firearms transaction is the state the purchaser lives
in, not the street he lives on within that state.” Benton held
in 1971 that because no provision of the recently enacted
Gun Control Act explicitly required a gun purchaser to
disclose his true address, the accuracy of any address
actually given could not be material to the lawfulness of the
sale unless the government first proves that the buyer was
not a resident of the same state as the dealer. 329 F. Supp at
332. This is so, according to the Benton court, because only
the buyer’s state of residence, not his specific address within
the state, is relevant to the legality of the purchase. See id.; 18
U.S.C. § 922(b)(3).
We reject Queen’s argument that gun buyers may lie
about a street address so long as they live within the state
where the gun is sold. Section 922(a)(6) requires a buyer to
provide truthful information to a dealer about any fact ma-
terial to the lawfulness of a firearm sale. 18 U.S.C. § 922 (a)(6).
Section 922(b)(5) of Title 18 in turn requires the dealer to
record the buyer’s place of residence, thus making a firearm
sale by a gun dealer illegal unless the dealer notes the

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4 No. 04-3189
buyer’s “place of residence” in records the dealer is required
to maintain. Lastly, the Gun Control Act’s implementing
regulations require that a dealer record the buyer’s “resi-
dence address (including county or similar political subdi-
vision)” on Form 4473, which specifically asks for “No.,
Street, City, County, State, [and] ZIP Code.” 27 C.F.R.
§ 478.124; ATF Form 4473. A false street address is therefore
material to the lawfulness of the sale because, when the
seller falsely represents his address on the form, the dealer
fails to record the buyer’s address, in violation of § 922(b)(5).
We are not alone in holding that an incorrect street
address on an ATF 4473 Form is material. In United States v.
Crandall, 453 F.2d 1216 (1st Cir. 1972), the First Circuit
upheld a conviction under § 922(b)(6) where the defendant
supplied a false name, address, and date of birth but was
not otherwise a prohibited buyer. These false representa-
tions were material, the court explained, because residency
is among the information that § 922(b)(5) obligates a seller
to record. Id at 1217. The Fifth Circuit followed this logic in
a case even more like ours, United States v. Gudger, 472 F.2d
566 (5th Cir. 1972), and explicitly held that giving a false
residence address is a material misrepresentation even if the
buyer lived within the state where the gun was sold. 472
F.2d at 567-68. The Fourth and Ninth Circuits, too, have held
that falsifying a residence address is a material misrepresen-
tation. See United States v. Behenna, 552 F.2d 573, 576 (4th Cir.
1977) (“Had the indictment . . . been drawn in different
form, Behenna’s false statement as to his residence address
would have been sufficient to establish a violation of
[§ 922(a)(6)].” (emphasis in original)); United States v. Buck, 548
F.2d 871, 876 (9th Cir. 1977) (“Falsification of identity is an
element of 18 U.S.C. § 922(a)(6) and may be proved by evi-
dence of use of a false name, age or place of residence.”).

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No. 04-3189 5
III.
Lying about a street address on an ATF Form 4473 is a
material misrepresentation that violates § 922(a)(6). Queen’s
indictment was therefore sufficient to support his convic-
tion.
A FFIRMED .
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-12-05

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