No Right to Nullify Materiality: Tenth Circuit Holds False Denial of Felony Indictment on Form 4473 Is Actionable Because § 922(n) Is Facially Valid

Introduction

In United States v. Reilly (consolidated with United States v. Peavler), the Tenth Circuit affirmed convictions under 18 U.S.C. § 922(a)(6) for making materially false statements on ATF Form 4473. The defendants—each under felony indictment—answered “no” to the form’s question asking whether the buyer is “under indictment or information” for a felony or other crime punishable by more than one year. They argued that, because the Second Amendment prevents Congress from restricting indictees’ gun rights, any false answer to the indictment question was not “material to the lawfulness” of the sale and thus could not support § 922(a)(6) liability.

The panel, composed of Judges Tymkovich, Phillips, and Moritz (author), rejected the challenge, holding that its recent decision in United States v. Ogilvie—upholding 18 U.S.C. § 922(n) on its face—foreclosed the defendants’ theory. Because § 922(n) (receipt ban for felony indictees) is facially constitutional, an indictee’s status remains a disqualifying fact and thus “material” within the meaning of § 922(a)(6). The court also clarified that the defendants did not waive their as-applied constitutional challenges by pleading guilty, because the issues could be resolved based on the indictments’ allegations. The court declined to reach alternative arguments, including the government’s contention that there is no privilege to lie even when confronting allegedly unconstitutional government action, and it rejected a due-process challenge that rose and fell with the Second Amendment argument.

Summary of the Opinion

The court affirms the convictions of Steven Kenneth Reilly and James Steven Peavler for violating § 922(a)(6) by falsely denying indictment status on Form 4473.
“Materiality” under § 922(a)(6) is satisfied because § 922(n) and § 922(d)(1) make it unlawful for an indictee to receive a firearm and for a seller to transfer to an indictee; therefore, the indictment question on Form 4473 bears on the lawfulness of the transaction.
United States v. Ogilvie (10th Cir. Sept. 3, 2025) is controlling: § 922(n) is facially constitutional under the Second Amendment, so indictee status is a valid disqualifier.
Defendants did not waive their as-applied challenges by pleading guilty, because the challenges turned on the face of the indictments and could be resolved without a trial record.
The court declines to consider a late-raised, narrower as-applied theory targeting Oklahoma prosecutions by information (allegedly lacking a probable cause finding), finding it unpreserved.
The panel does not reach the government’s argument that defendants have no privilege to lie when confronting unconstitutional requirements, nor Peavler’s due-process claim, because both issues are mooted by the holding that § 922(n) is valid.

Factual and Procedural Background

Both defendants completed Form 4473 in connection with firearm acquisitions in Oklahoma in 2022 and checked “no” to the indictment question. At the time:

Peavler was facing state felony charges for distributing methamphetamine, possessing a gun during a felony, and bringing contraband into jail.
Reilly was facing state felony charges for distributing methamphetamine and possessing a gun during a felony; he was charged in two § 922(a)(6) counts, ultimately pleading to one.

Both moved to dismiss on the theory that the Second Amendment protects indictees’ rights to acquire firearms, rendering their false answers immaterial to the legality of the sale and thus not criminal under § 922(a)(6). Peavler also advanced a due-process claim. The district courts denied the motions, and the defendants pleaded guilty while preserving their right to appeal the denial. Peavler received 12 months and one day of imprisonment and one year of supervised release; Reilly received 15 months and three years of supervised release. Their appeals, though briefed separately, were argued together because they raise the same legal issue.

Analysis

Precedents and Authorities Cited

18 U.S.C. § 922(a)(6): Criminalizes knowingly making any false statement “with respect to any fact material to the lawfulness” of the firearm acquisition.
18 U.S.C. § 922(n): Prohibits a person under felony indictment from receiving a firearm.
18 U.S.C. § 922(d)(1): Prohibits transferring a firearm to a person known or having reasonable cause to believe is under felony indictment.
27 C.F.R. § 478.124(c)(1): Requires completion of Form 4473 for firearm purchases from licensed dealers and includes the indictment-status question.
United States v. Ogilvie, No. 24-4089, 2025 WL 2525579 (10th Cir. Sept. 3, 2025): The Tenth Circuit’s recent decision holding § 922(n) facially constitutional under the Second Amendment. Ogilvie supplies the controlling premise that renders indictment status a valid disqualifier and hence a material fact for § 922(a)(6).
United States v. Brune, 767 F.3d 1009 (10th Cir. 2014): States the standard of review—de novo—for denial of a motion to dismiss an indictment on constitutional grounds.
United States v. Pope, 613 F.3d 1255 (10th Cir. 2010) and United States v. Todd, 446 F.3d 1062 (10th Cir. 2006): Support that a court may assess whether the indictment’s allegations, if true, state an offense; thus, such challenges can be resolved pretrial and are not necessarily waived by a guilty plea when the issues are purely legal on the indictment’s face.
Pharmaceutical Care Management Ass’n v. Mulready, 78 F.4th 1183 (10th Cir. 2023) and Ross v. University of Tulsa, 859 F.3d 1280 (10th Cir. 2017): Establish preservation and waiver principles for arguments inadequately raised below or first raised at oral argument.

Legal Reasoning

The defendants’ core theory was an as-applied Second Amendment challenge to § 922(a)(6), arguing that because the Second Amendment protects indictees’ firearm rights, a false denial of indictment status cannot be “material” to the lawfulness of the sale. The panel explains that this as-applied theory is predicated on a facial invalidation of § 922(n): only if § 922(n) were unconstitutional would the indictment status cease to be a lawful disqualifier, thereby nullifying materiality under § 922(a)(6).

That predicate fails. In United States v. Ogilvie, the Tenth Circuit squarely held that § 922(n) is facially constitutional. Because Congress may, consistent with the Second Amendment, prohibit at least some felony indictees from receiving firearms, the Form 4473 indictment question tracks a valid statutory prohibition. That, in turn, makes an applicant’s indictment status a fact “material to the lawfulness” of the transfer under § 922(a)(6). Defendants’ false answers therefore satisfy the statute.

On procedure, the government suggested that the defendants’ guilty pleas waived their as-applied challenges. The panel rejects that argument, noting the challenges turn on the indictments’ allegations and present pure legal questions appropriate for resolution pretrial. Under Pope and Todd, courts may ask whether the indictment’s allegations, if true, state an offense; resolving that question here did not require a trial record.

The panel also notes (but does not reach) two additional issues:

A narrower as-applied argument—unique to Oklahoma practice—contending that prosecutions initiated by information (allegedly lacking a probable cause finding) render § 922(a)(6) unconstitutional as applied. That claim was not adequately preserved and thus is not considered.
The government’s separate contention that defendants have no privilege to lie even if the underlying law were unconstitutional, a proposition that would potentially sustain § 922(a)(6) convictions even were § 922(n) invalid. Because § 922(n) is valid, the court does not opine on that issue.

Finally, Peavler’s due-process challenge depends upon the asserted Second Amendment liberty interest. Because the Second Amendment claim fails, the due-process claim necessarily fails as well, and the court declines to consider it separately.

Impact and Forward-Looking Consequences

This decision cements an important post-Ogilvie consequence in the Tenth Circuit: a defendant cannot defeat § 922(a)(6) charges for lying about indictment status by arguing that indictees have a Second Amendment right to receive firearms. So long as § 922(n) remains facially valid, the indictment-status question on Form 4473 is a material disqualifier.

For prosecutors and ATF enforcement: Expect continued reliance on § 922(a)(6) to address lies about disqualifying status, including indictment status, on Form 4473. The opinion confirms the legal sufficiency of such charges where § 922(n) applies.
For defense counsel: As-applied challenges to § 922(a)(6) predicated on the alleged unconstitutionality of the underlying disqualifier will face Ogilvie as a controlling obstacle in the Tenth Circuit. To the extent narrower as-applied theories may exist (e.g., procedural features of state indictment processes), they must be timely raised and developed; the panel flagged such an argument about Oklahoma informations as unpreserved, leaving the door open for a properly litigated version in a future case.
Unresolved question preserved for another day: Whether there is any “privilege to lie” when confronted with an unconstitutional disqualifier or process remains unanswered here, because the panel did not need to reach the issue. That question could matter in hypothetical scenarios where the underlying disqualifier is later found unconstitutional.
Guilty-plea posture: The court reiterates that defendants who plead guilty can preserve pure legal challenges resolvable on the indictment’s face. This provides a litigation pathway for certain constitutional defenses without a full trial record, but it does not help where controlling circuit precedent (like Ogilvie) forecloses the merits.
Second Amendment landscape: By anchoring materiality in the continued validity of § 922(n), the court integrates Second Amendment doctrine with federal false-statement enforcement. Within the Tenth Circuit, Form 4473 questions that track valid statutory disqualifiers will continue to supply the “materiality” element under § 922(a)(6).

Complex Concepts Simplified

Form 4473 and “materiality”: Form 4473 is the mandatory federal form for firearm purchases from licensed dealers. A fact is “material to the lawfulness” of a sale if it has a natural tendency to influence whether the sale is legal. If federal law disqualifies a buyer (e.g., indictee status under § 922(n)), lying about that fact is “material” and prosecutable under § 922(a)(6).
Facial vs. as-applied constitutional challenges:
- Facial: Attacks a statute in all its applications. If successful, the law is invalid across the board.
- As-applied: Argues a law is unconstitutional as applied to the challenger’s particular circumstances.
The defendants’ as-applied challenge to § 922(a)(6) hinged on a facial attack on § 922(n). Because Ogilvie held § 922(n) facially constitutional, the as-applied challenge to § 922(a)(6) collapses.
Indictment vs. information: An “indictment” typically refers to a grand jury charge; an “information” is a prosecutorial charging instrument. The Form 4473 question covers both. The panel notes a potential, unpreserved argument about whether prosecutions initiated by information lacking a probable cause determination could undermine the validity of applying § 922(a)(6), but it does not decide it.
Standard of review: Denial of a motion to dismiss an indictment on constitutional grounds is reviewed de novo. Courts may decide whether the indictment’s allegations, if true, state an offense; this can be done before trial and is not forfeited by a guilty plea when purely legal.
Why due process fell with the Second Amendment claim: Peavler’s due-process theory depended on a substantive right to acquire a firearm while under indictment. Once the court held that Congress may validly restrict indictees’ firearm receipt, no independent due-process violation remained.

Conclusion

United States v. Reilly (with Peavler) underscores a straightforward but consequential rule in the Tenth Circuit: because § 922(n) is facially constitutional, a buyer’s indictment status is a material fact for purposes of § 922(a)(6), and lying about it on Form 4473 is prosecutable. The panel also clarifies that such constitutional disputes can be preserved despite guilty pleas when they present pure legal questions based on the indictment’s allegations. While the court leaves for another day whether there exists any “privilege to lie” in the face of unconstitutional requirements and whether unique state charging practices could support a narrower as-applied challenge, the immediate takeaway is clear. Post-Ogilvie, the path to defeating § 922(a)(6) prosecutions by attacking the materiality of the indictment question is closed in the Tenth Circuit. The decision therefore strengthens the interlock between federal disqualifiers and federal false-statement enforcement in the firearms-purchase context.

Note: The opinion is issued as an “Order and Judgment,” which is nonprecedential under Tenth Circuit rules, though it may be cited for its persuasive value. Its core holding, however, rests on Ogilvie—a precedential decision—thereby making the practical effect of today’s ruling quite robust within the circuit.