Lying About Indictment Status on Form 4473 Is “Material” Under § 922(a)(6) Where § 922(n) Is Facially Valid: Commentary on United States v. Reilly (10th Cir. 2025)

Introduction

In United States v. Reilly (consolidated with United States v. Peavler), the Tenth Circuit affirmed two convictions under 18 U.S.C. § 922(a)(6) for false statements made on ATF Form 4473 concerning whether the purchasers were “under indictment or information” for a felony or crime punishable by more than one year. Both defendants had pending Oklahoma felony prosecutions when they checked “no” to the Form 4473 indictment question. They argued that their prosecutions were unconstitutional because, in their view, the Second Amendment does not permit Congress to limit the gun rights of indictees; if so, their answers could not be “material to the lawfulness” of the firearm transactions, a required element under § 922(a)(6).

The Tenth Circuit rejected those arguments in light of its recent decision in United States v. Ogilvie, which held that 18 U.S.C. § 922(n)—the federal bar on receiving a firearm while under indictment—is facially constitutional. Given that holding, the court concluded that Form 4473’s indictment-status question is material to the lawfulness of a firearm acquisition and that false answers violate § 922(a)(6). The panel also addressed several procedural and preservation points that will matter in future litigation, while expressly leaving open the government’s alternative “no right to lie” argument.

Summary of the Opinion

The panel (Judges Tymkovich, Phillips, and Moritz; opinion by Judge Moritz) affirmed the district courts’ denials of motions to dismiss and upheld the convictions following conditional guilty pleas. The court held:

Section 922(a)(6) penalizes knowingly false statements “material to the lawfulness” of a firearm acquisition.
Because federal law makes it unlawful both to sell to (§ 922(d)(1)) and for an indictee to receive (§ 922(n)) a firearm, the Form 4473 indictment question is material.
Defendants’ as-applied challenges to § 922(a)(6) rested on a predicate facial challenge to § 922(n). The Tenth Circuit’s recent decision in United States v. Ogilvie upheld § 922(n) on its face; therefore the materiality premise stands and the § 922(a)(6) prosecutions are constitutional.
The court did not reach (a) the government’s argument that one has no privilege to lie even when confronted with unconstitutional regulations, or (b) Peavler’s due-process claim, which “rises and falls” with the Second Amendment argument.
A narrower challenge floated at oral argument—that Oklahoma felony prosecutions initiated by information may lack a probable-cause finding—was not preserved and thus not considered.

Analysis

Precedents Cited and Their Roles

United States v. Ogilvie, No. 24-4089, 2025 WL 2525579 (10th Cir. Sept. 3, 2025): The linchpin. Ogilvie holds § 922(n) facially constitutional, i.e., Congress may, consistent with the Second Amendment, prohibit at least some felony indictees from receiving firearms. Reilly explicitly applies Ogilvie: because § 922(n) stands, an indictee’s status is a legally operative disqualifier, making the Form 4473 question about indictment “material to the lawfulness” of the transfer/receipt. This linkage forecloses defendants’ theory that their lies could not be material.
United States v. Brune, 767 F.3d 1009, 1015 (10th Cir. 2014): Cited for the standard of review—de novo—for the denial of motions to dismiss indictments on constitutional grounds.
United States v. Pope, 613 F.3d 1255, 1260 (10th Cir. 2010) (quoting United States v. Todd, 446 F.3d 1062, 1068 (10th Cir. 2006)): Establishes that a court may assess whether the allegations in an indictment, if true, state an offense, even when the defendant has pleaded guilty after a denied motion to dismiss. This disposes of the government’s suggestion that defendants waived their as-applied challenges by pleading guilty. Here, the challenges turned on the legal sufficiency of the indictment’s allegations in light of the Constitution, which is properly reviewable.
Pharmaceutical Care Management Association v. Mulready, 78 F.4th 1183, 1204–05 (10th Cir. 2023), and Ross v. University of Tulsa, 859 F.3d 1280, 1294 (10th Cir. 2017): Preservation and waiver principles. The court used these to decline consideration of a new as-applied theory (about Oklahoma informations) raised for the first time at oral argument and inadequately briefed below and on appeal.
Regulatory/statutory scaffold: 27 C.F.R. § 478.124(c)(1) (2022) (Form 4473 requirement); 18 U.S.C. §§ 922(a)(6) (false statements material to lawfulness), 922(d)(1) (bar on selling to indictees), 922(n) (bar on receipt by indictees). The opinion underscores that both seller- and buyer-side prohibitions render indictment status a dispositive fact for lawfulness.

Legal Reasoning

The core logic is straightforward and syllogistic:

Section 922(a)(6) criminalizes knowingly false statements that are “material to the lawfulness” of a firearm acquisition. Materiality, in this context, turns on whether the fact affects whether the transaction is lawful under federal firearms law.
Form 4473 asks whether the purchaser is “under indictment or information” for a potentially imprisonable offense. That question maps onto statutory prohibitions: § 922(n) (receipt by indictees) and § 922(d)(1) (sale to indictees) make indictment status a disqualifying condition relevant to both sides of the transaction.
Defendants’ constitutional theory asserted that indictee disarmament is incompatible with the Second Amendment. If true, their indictment status would not affect the “lawfulness” of the transaction, defeating § 922(a)(6) materiality.
Ogilvie forecloses that predicate by holding § 922(n) facially constitutional. Thus, the law does lawfully prohibit indictees from receiving firearms (at least in some set of applications). It follows that the truth or falsity of the indictment-status answer is material to the transaction’s lawfulness, satisfying § 922(a)(6).

Procedurally, the court also clarified that conditional guilty pleas did not waive the as-applied constitutional argument here, because the issue could be resolved on the face of the indictments. And it emphasized preservation requirements by refusing to entertain a new as-applied theory (concerning prosecutions initiated by information) raised at oral argument.

Finally, the court expressly did not reach the government’s broader contention that “even if § 922(n) were invalid,” a person has “no privilege to lie when confronted with unconstitutional government action.” Nor did it independently analyze Peavler’s due process argument, because that claim depended entirely on a Second Amendment right to acquire a firearm while under indictment, which Ogilvie undercut.

Impact and Forward-Looking Implications

Immediate prosecutorial clarity for § 922(a)(6) cases involving indictment-status lies. Within the Tenth Circuit, after Ogilvie, indictment status is a legally operative disqualifier. False denials on Form 4473 about being under indictment are therefore “material,” streamlining § 922(a)(6) prosecutions against buyers who conceal that status.
Linkage between status-based prohibitions and materiality. Reilly crystallizes a generalizable principle: where federal law imposes a status-based firearms disability, false statements concealing that status on Form 4473 are material for § 922(a)(6) purposes. That logic will likely apply across other status questions on Form 4473 (e.g., restraining orders, prohibited categories), subject to the continuing constitutional validity of the underlying disqualifier.
Boundary of “as-applied” Second Amendment challenges to § 922(a)(6). Defendants styled their challenge as “as-applied,” but the panel deemed it predicated on a facial attack on § 922(n). Future litigants might attempt more granular as-applied Second Amendment challenges—for example, contesting how “under indictment” is defined in particular jurisdictions or circumstances (e.g., informations that allegedly lack a probable-cause determination). The panel flagged, but did not decide, such an argument due to waiver, leaving room for carefully preserved and developed as-applied challenges in future cases.
Unresolved “no right to lie” question remains live. Because the court did not reach the government’s alternative argument, it remains an open issue in the Tenth Circuit whether a false statement to the government can be prosecuted under § 922(a)(6) even if the underlying regulatory restriction were later found unconstitutional. That question will be significant if litigants succeed in any future challenges to specific disqualifier statutes or their application.
Due process claims tied to Second Amendment claims will generally ebb and flow with the latter. Where a due process theory simply repackages the substantive Second Amendment right (as Peavler’s did), its fate will track the Second Amendment analysis.
Nonprecedential but persuasive. The court issued an “Order and Judgment,” which is nonbinding precedent under circuit rules but citable for persuasive value. Given its close integration with Ogilvie, Reilly will likely be influential in district courts within the circuit.

Complex Concepts Simplified

Facial vs. as-applied constitutional challenges:
- A facial challenge argues a statute is invalid in all (or at least most) of its applications, regardless of the challenger’s specific circumstances.
- An as-applied challenge concedes a statute’s general validity but contends that it is unconstitutional as applied to the challenger’s particular facts.
- In Reilly, the “as-applied” challenge to § 922(a)(6) hinged on the premise that § 922(n) is facially invalid; once Ogilvie upheld § 922(n), the as-applied attack collapsed.
Materiality under § 922(a)(6): A fact is “material” if it has a natural tendency to influence, or is capable of influencing, the lawfulness of the firearm transaction under federal law. If the truth of the answer would render the sale or receipt unlawful, the fact is material. Here, indictment status triggers prohibitions under §§ 922(d)(1) and 922(n), so it is quintessentially material.
“Under indictment or information” on Form 4473: Form 4473 asks whether the purchaser is under “indictment or information.” Federal definitions treat “indictment” to include “information” for these purposes, capturing jurisdictions where prosecutors proceed by information rather than grand jury. The panel noted—but did not decide—an argument that certain informations may lack a probable-cause determination, which could be fodder for future as-applied challenges if properly preserved.
Interlocking provisions—§ 922(a)(6), § 922(d)(1), and § 922(n): Section 922(a)(6) addresses false statements; § 922(d)(1) prohibits sellers from transferring to indictees; § 922(n) prohibits indictees from receiving. Together they create a two-sided unlawfulness: both transfer and receipt are barred when the buyer is under indictment, making the buyer’s truthful disclosure essential to a lawful transaction.
Standard of review and post-plea reviewability: Denials of motions to dismiss indictments on constitutional grounds are reviewed de novo. Even after a guilty plea, a court may review whether the indictment’s allegations, if true, state an offense; thus, constitutional sufficiency arguments tied to the face of the indictment remain reviewable.
Preservation and waiver: Arguments must be adequately raised and briefed in the district court and on appeal. Raising a new theory for the first time at oral argument generally results in waiver, as happened with the proposed “information without probable cause” theory.
Nonprecedential decisions: An “Order and Judgment” in the Tenth Circuit is not binding precedent except under limited doctrines (law of the case, res judicata, collateral estoppel), but it may be cited for persuasive value under Fed. R. App. P. 32.1 and Tenth Cir. R. 32.1(A).

Conclusion

United States v. Reilly cements a clear, practical rule for § 922(a)(6) prosecutions in the Tenth Circuit: because § 922(n) is facially constitutional under Ogilvie, a purchaser’s indictment status is material to the lawfulness of a firearm transaction, and knowingly lying about it on Form 4473 violates § 922(a)(6). The decision also underscores important procedural guideposts—conditional pleas do not necessarily waive as-applied constitutional arguments that can be resolved on the face of the indictment, and new theories raised for the first time at oral argument are waived.

Although nonprecedential, Reilly’s alignment with Ogilvie will guide district courts and litigants: in the Tenth Circuit, false denials of indictment status on Form 4473 are prosecutable under § 922(a)(6). At the same time, two issues remain fertile for future litigation: (1) whether more targeted as-applied challenges to the indictee prohibition—such as those tied to the mechanics of state informations—might succeed if properly preserved and factually developed; and (2) whether, and to what extent, a “no right to lie” principle would sustain § 922(a)(6) liability even if a particular disqualifier were later deemed unconstitutional. The take-away is that, for now, indictment status remains a legally dispositive fact, and candor on Form 4473 is mandatory.