The Government has filed a criminal complaint against Enrique Marquez, detailing charges that allege Marquez’s role in plotting to commit multiple terror attacks on American soil, as well as his connections to Syed Farook, one of the San Bernardino killers. The complaint (there is not yet an indictment) identifies three distinct federal criminal laws that Marquez allegedly violated: conspiracy to provide material support for terrorism, making a false statement in the purchase of a firearm (a straw purchase), and defrauding immigration authorities. The Government does not allege that Marquez participated in, or knew in advance about, the San Bernardino attack.
According to DOJ, forensic tests show that two of the rifles that Marquez allegedly purchased for Farook were used in the San Bernardino attack.
First, I have said for some time that Congress needs to give serious consideration to a strong federal straw purchaser statute that explicitly makes it a crime to purchase a firearm for another person. The existing statutory scheme, 18 U.S.C. 922(a)(6) and 924(a)(1)(A), is called a “straw purchaser” scheme, but really it is a false statement scheme. The Government has to prove that the purchaser knowingly lied when completing the required paperwork, by holding himself out as the actual purchaser when, in fact, the purchase was for someone else. The Supreme Court held last year in Abramski v. United States that the statute applies regardless of whether the actual buyer – the person for whom the straw purchase is made – is legally eligible to possess a gun (though that is a debatable holding, in light of the way the statute is written, which is among the reasons why I think a new statute is needed, despite Abramski).
The proposal for a new and explicit straw purchaser law has bipartisan support in Congress, even among strong supporters of Second Amendment rights (e.g., even Ted Cruz sponsored his own straw purchaser legislation). And there is a connection between straw purchasing and background checks. The Marquez charges are a reminder of the need to address this problem in federal gun law, despite the fact that the existing statutory scheme was adequate in this particular case.
Second, could DOJ charge Marquez with treason? Marquez and Farook never acted on their original plan, so Marquez did not wage war against the United States. Alternatively, if the allegations are true, he certainly gave aid and comfort to Farook, but was Farook an “enemy” in 2011 and 2012? It appears as though Farook expressed an interest in joining AQAP, but it is not clear that he did. This may be one of those cases in which treason would be a stretch, and where the material support statute might be the better fit. Under the material support statute, the act that the person is supporting need not be committed by an “enemy;” it need only be one of the listed terrorism offenses.