The Buffalo News, Inc. - June 14, 2005

THE DOUBLE STANDARD
STREET GUN DEALERS GO TO JAIL, WHILE LICENCED GUN MERCHANTS - PART OF THE GUN-CRIME PROBLEM - GET A PASS

By DAN HERBECK, LOU MICHEL and SUSAN SCHULMAN, News Staff Reporters

DAYTON, Ohio - As James Nigel Bostic strolled through the bustling gun show at Hara Arena, past the tables loaded with handguns and semi-automatic weapons, he knew he needed help to purchase an arsenal of his own.

Bostic got some of that help from Charles "Charlie" Brown, a gun dealer willing to sell dozens of cheap weapons, without asking many questions.

He also got help from Ohio's weak gun laws and a federal enforcement agency that isn't eager to take on gun dealers.

Bostic approached Brown with wads of cash, usually accompanied by one or more girlfriends willing to sign government forms illegally putting the weapons in their names.

In the end, records show, Brown sold Bostic and the women about 190 cheap handguns that were resold in Buffalo at inflated prices to drug dealers and thieves.

It wasn't the first time Brown's guns ended up in criminal hands. Over a recent four-year period, New York City police recovered some 630 firearms Brown's company originally sold, according to government records in a federal lawsuit.

In Colorado, a semi-automatic rifle Brown sold was used in the Columbine High School massacre of 1999.

And in California, so many of Brown's guns ended up at crime scenes that he's now banned from selling weapons there.

Bostic's six-month gun-buying scheme occurred in 2000, yet it wasn't until two years later - well after he dumped some 250 guns on Buffalo's streets - that Bostic was arrested. He's now in federal prison.

But Brown and another dealer who sold guns to Bostic got a free pass. They were not criminally charged. No administrative actions were taken against them. And they kept the thousands of dollars Bostic paid them in illegal gun transactions.

That's hardly unusual. A Buffalo News investigation found the federal government rarely prosecutes gun dealers.

Under pressure from powerful gun lobbies, the federal government aims its war on gun violence at street criminals like Bostic - not the dealers who supply them, The News found.

"Absolutely nobody is looking at the dealers," said Gerald A. Nunziato, a former supervisor with the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives. "It's a lot easier to prosecute some black guy who is selling guns on the street corner - he isn't protected by the National Rifle Association."

The News also found:

Gun shows are a prime source of crime weapons in many states, especially Ohio, where there are no state criminal background checks, no handgun licensing law, and no limits on the number of guns that can be bought in a day.

In fact, the ATF says gun shows and corrupt gun dealers are the two biggest sources of crime guns in the nation.

Despite those concerns, the U.S. Justice Department shies away from gun shows and rarely prosecutes any of the 68,500 dealers licensed to sell firearms in the United States.

In 2003, for example, the department prosecuted 12,406 gun crimes, but only 32 cases were brought against corrupt firearms dealers, according to ATF statistics.

More than half the crime guns sold in the United States can be traced to 1 percent of licensed dealers. Brown's company, for instance, was the fourth biggest source of crime guns recovered by New York City police from 1996 to 2000, according to the Violence Policy Center, a Washington, D.C.-based gun control group.

Even if the ATF had the stomach to go after dealers, it lacks the staff. Given current manpower, experts estimate it would take 22 years for ATF to inspect all licensed dealers in the nation.

Although the number of licensed gun dealers has decreased over the decade, the U.S. has more than twice as many as it has McDonald's, Burger King and Wendy's restaurants, combined.

When it comes to keeping tabs on gun dealers, the ATF is ineffective, said Daniel Webster, with John Hopkins University's gun research institute.

"They are a toothless tiger because that is what they (Congress) want ATF to be," Webster said. "Congress has been quite stingy with ATF money to do this kind of work. They passed laws and regulations making it harder and harder for ATF."

In the Bostic case, the Ohio and Buffalo ATF say they tried unsuccessfully at least twice to catch Bostic in the act.

While Bostic was eventually arrested, the gun dealers were not because there was no proof the dealers knowingly sold guns to straw buyers, the ATF said.

Records of multiple gun sales must be filed with the government, and the dealers submitted all the required paperwork for the guns sold to Bostic and the women, said Special Agent Patrick Berarducci, an Ohio supervisor for the ATF.

"We looked at the dealers," Berarducci said. "They followed the law as required, at least based on the information we have."

But to DiAnna Peterson and Scherie L. Smith, two of Bostic's straw buyers, it was clear that the gun dealers were willing participants in the scheme, turning a blind eye to criminal activity to make a buck.

"It was kind of a buddy system," Peterson said of the relationship between Bostic and the sellers.

At one show, she said, Bostic picked out 45 weapons, provided the money and carried the guns out. Her role, she said, was limited to signing paperwork.

"I was just standing there," Peterson said.

With a wink and a nod

The first time Bostic did business with Brown, May 28, 2000, he bought five guns at the Hara Arena gun show. Bostic returned a month later with girlfriend Kimberly Upshaw, who bought eight guns from Brown.

In July, Bostic began doing business with another dealer, Sandra Cyrus. He and Upshaw bought eight guns from her table July 15, and 10 more from Brown, records show.

A month later, Bostic took Smith, his live-in girlfriend, to the gun show for the first time, and met up with Upshaw.

Bostic approached the Cyrus table, Smith said, and found more than two dozen 9 mm Hi-Point handguns, each selling for $89.

On previous gun buys, Bostic easily passed the required criminal background check. He had 11 prior convictions, but none were felonies, and his record did not prevent him from buying guns in Ohio.

This time, though, for whatever reason, the computer delayed the sale, Smith recalled.

So Bostic, in direct violation of federal laws, had Smith and Upshaw sign for the weapons.

"Nigel [Bostic] told me to get 13 guns, so I did," Smith said. "When Nigel tried to give the dealer the money, the dealer said the money had to come from me. Nigel handed me the money, and I handed it to the dealer . . . Nigel took the guns."

"(The dealer) definitely knew it wasn't for me," Smith added. "They knew it was for Nigel."

Upshaw also bought 13 guns from the Cyrus booth that day.

Smith never went back, but Bostic, Upshaw and Peterson returned to the gun show three more times.

Bostic and Upshaw bought 48 guns from the two dealers in September; Upshaw bought 87 more from Brown in early October. One of those guns would be used to shoot at Buffalo teenager Daniel "Bud" Williams.

On the final day of the buying spree, Oct. 14, 2000, Peterson bought 35 guns from Brown and 10 from Cyrus.

Dealers in denial

Brown denies any wrongdoing. So do Sandra Cyrus and her husband, Jim, her business partner. The gun dealers described themselves as victims of Bostic's con game.

Bostic seemed to be a legitimate businessman, talking about opening a gun shop and carrying an application form to prove it, the dealers said.

"It seemed like (Bostic) was talking about the right things. It sounded like he fully intended opening a store somewhere," Brown said. "The bottom line is, he was a liar and a con man."

Brown, 44, operates MKS Supply, the main distributor for Hi-Point guns, made near Mansfiled, Ohio. Once a regular at gun shows, Brown recently said he gave them up to spend more time with his four children.

Brown said he never knowingly sells firearms to criminals, and police have never charged him with doing so. Yet hundreds of Brown's guns have turned up at crime scenes from New York to California in the past decade, authorities said.

In the most high profile case, a semi-automatic Hi-Point rifle used in the Columbine High School massacre - which resulted in 15 deaths and 22 injuries - was originally sold by Brown in Ohio, and ended up being resold in Colorado.

In the New York City case, MKS is one of 24 gun distributors and gun makers accused of irresponsible business practices contributing to gun violence. A lawsuit was filed by the city and the Legal Action Project, representing gun victims. The defendants deny the allegations.

In August 2003, Brown's company paid $10,000 and agreed to stop selling guns in California to settle a lawsuit filed by 12 cities and counties alleging MKS and other gun distributors didn't do enough to stop guns from being sold to criminals.

The Cyruses operate Gallipolis Gun & Archery shop, headquartered in Gallipolis, Ohio, a small city near the West Virginia border. The store is popular with hunters of deer, wild turkeys and wild boars.

The stuffed head of a boar, killed by a local bow hunter, is displayed on one wall of the shop, near a George W. Bush bumper sticker. A plaque praises the right to bear arms.

The Cyruses were suspicious of Bostic early on and contacted the ATF in August 2000 expressing concerns about Bostic's activities, and passing along his license plate number. Still, records show, the Cyruses sold Bostic and his straw buyers about 55 guns over the next two months.

Jim Cyrus said he concluded Bostic and the women weren't doing anything illegal. He added an employee sold the guns to Bostic and the women. Neither he nor his wife was involved with the transactions, he said.

Joey DeWeese, the Cyruses' son-in-law, who manages the gun shop, defended his in-laws.

"The ATF told them, "It's OK. Let (Bostic) keep buying guns. We're watching him,' " DeWeese said.

ATF officials denied advising the family to keep selling guns to Bostic, although they said the Cyruses were cooperative.

When told that Bostic girlfriend Scherie Smith believes the dealers at the Cyrus booth were aware of the straw-buying scheme, Jim Cyrus responded: "That's her opinion."

Prosecution strategy

The government's handling of the Bostic case is typical, according to two top agents now retired from the ATF.

"Instead of going after the gun dealer who sells 70 guns to criminals, our government goes after the 70 criminals, one at a time," said Nunziato, former director of the ATF's National Gun Tracing Center. "And they only go after them after the guns have already been used in street crimes."

The ATF is understaffed, and agents get no encouragement to build criminal cases against licensed dealers, said Joseph J. Vince, who served as chief of the ATF firearms division.

"It's a problem that rests with just a few dealers, but we're not prosecuting them," Vince said. "Most dealers have never once had a crime gun traced back to them."

Western New York has 300 licensed gun dealers, and only a handful have been prosecuted criminally in the past decade, authorities said.

Aggressive lobbying and political donations by the National Rifle Association and other gun groups have made the government reluctant to investigate or prosecute gun dealers, Vince and Nunziato said.

"The Bush administration has gone after the end users of the guns, which we applaud. But the real sources of these guns are being ignored," said John Lacey, with the Americans for Gun Safety Foundation. "These dealers are inspected very infrequently, and almost never prosecuted. It's almost like they're on an honor system."

The NRA responds it makes campaign contributions like other organizations, and that the government has strict controls on licensed firearms dealers. Few dealers are prosecuted, the NRA says, because few break the law.

"The abuses by licensed gun dealers are infinitesimally small," said Budd Schroeder, a Lancaster resident on the NRA Board of Directors.

Assistant U.S. Attorney Joel L. Violanti said he is proud of the job done by his Buffalo office and the ATF in prosecuting Bostic, the biggest gun-trafficker ever uncovered in Western New York.

It took almost two years before Bostic was arrested, but that's not unusual for such cases, federal officials said. Ohio ATF tried early on to observe Bostic at a gun show, but on that day, he left just before an agent arrived, they said. Buffalo ATF tried to make an undercover buy from Bostic, but said they too were unsuccessful.

Bostic's girlfriends, Violanti added, were not immediately cooperative with federal agents. They didn't share as many details with the government as they did with The News, he said.

Violanti also defended the decision to target Bostic and the straw buyers - and not the gun dealers. The dealers would have been important prosecution witnesses if Bostic had gone to trial instead of taking a plea deal, Violanti said.

"By prosecuting Bostic, we put an end to a major flow of illegal guns into Buffalo," he said. "To prosecute a dealer, you'd have to show they were knowingly making illegal sales. That forces you to look into the mind of the dealer as they were selling the gun. That's a difficult thing to accomplish."

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