Tenth Circuit Confirms Materiality of Form 4473 Indictment Question: § 922(a)(6) Convictions Stand Because § 922(n) Is Facially Constitutional (United States v. Peavler)

Note: This Order and Judgment is not binding precedent—except under law-of-the-case, res judicata, and collateral estoppel—but may be cited for its persuasive value. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A).

Introduction

In United States v. Peavler (consolidated with United States v. Reilly), the Tenth Circuit addressed whether a defendant can defeat a false-statement prosecution under 18 U.S.C. § 922(a)(6) by arguing that federal law may not constitutionally restrict firearm receipt by persons under felony indictment. Both defendants—James Steven Peavler and Steven Kenneth Reilly—were under felony indictment in Oklahoma when they completed ATF Form 4473 to acquire firearms and checked “no” in response to the form’s question asking whether they were under indictment for a felony or any crime punishable by more than one year.

The central legal issue was materiality under § 922(a)(6). The statute criminalizes knowingly making a false statement “with respect to any fact material to the lawfulness of the sale or other disposition” of a firearm. Defendants contended that because the Second Amendment forbids the government from limiting indictees’ firearm rights, their indictment status could not be “material” to the lawfulness of the transaction. In other words, if 18 U.S.C. § 922(n) (prohibiting receipt of firearms by persons under indictment) is unconstitutional, then a false denial of indictment status cannot be material, and a § 922(a)(6) prosecution cannot stand.

The Tenth Circuit—relying squarely on its recent decision in United States v. Ogilvie, which upheld § 922(n) against a facial Second Amendment challenge—rejected that position and affirmed both convictions.

Summary of the Opinion

The panel (Judges Tymkovich, Phillips, and Moritz; opinion by Judge Moritz) affirmed the denials of the defendants’ motions to dismiss and upheld their § 922(a)(6) convictions. The court held:

Because the Tenth Circuit has already held in United States v. Ogilvie that § 922(n) is facially constitutional—i.e., Congress can, consistent with the Second Amendment, prohibit at least some felony indictees from receiving firearms—the Form 4473 indictment question is “material to the lawfulness” of a firearm transfer.
Defendants’ as-applied attacks on § 922(a)(6) were “predicated on a facial challenge to § 922(n),” and that predicate fails after Ogilvie.
The government’s alternative argument—that defendants have no privilege to lie even in the face of unconstitutional government action—need not be reached, nor need the court address a separate due-process theory (which rose or fell with the Second Amendment claim).
Defendants did not waive their constitutional challenges by pleading guilty where the challenges depend on the indictment’s own allegations and present a pure legal question suitable for a Rule 12 motion.
A suggested narrower theory at oral argument—that § 922(a)(6) would be unconstitutional as applied where state felony charges proceed by information rather than indictment—was not preserved and was therefore deemed waived for inadequate briefing.

Analysis

Precedents and Authorities Cited

United States v. Ogilvie, No. 24-4089, 2025 WL 2525579 (10th Cir. Sept. 3, 2025): This recent, controlling Tenth Circuit decision held that § 922(n) is facially constitutional. The panel’s core doctrinal move in Peavler is to apply Ogilvie directly: because Congress may constitutionally prohibit at least some felony indictees from receiving firearms, the Form 4473 question about indictment status asks about a fact that is material to the lawfulness of a transaction, and a false answer supports § 922(a)(6) liability.
United States v. Brune, 767 F.3d 1009 (10th Cir. 2014): Cited for the standard of review—de novo—for constitutional challenges to indictments.
United States v. Pope, 613 F.3d 1255 (10th Cir. 2010), quoting United States v. Todd, 446 F.3d 1062 (10th Cir. 2006): These cases support the proposition that a court may decide a motion to dismiss an indictment where the legal challenge turns solely on the allegations within the indictment; thus, a conditional guilty plea did not waive defendants’ as-applied constitutional challenges here.
Pharmaceutical Care Management Association v. Mulready, 78 F.4th 1183 (10th Cir. 2023), and Ross v. University of Tulsa, 859 F.3d 1280 (10th Cir. 2017): Cited for waiver due to inadequate briefing or for arguments raised for the first time at oral argument—the court declined to entertain the defendants’ late-emerging, narrower theory tied to Oklahoma’s use of informations.

Statutory and regulatory context was also central: 18 U.S.C. § 922(a)(6) (false statements material to a firearm transaction), § 922(d)(1) (prohibiting sales to indictees), § 922(n) (prohibiting receipt by indictees), and 27 C.F.R. § 478.124(c)(1) (Form 4473 completion requirement). The court noted that both the prior and current versions of Form 4473 ask the indictment question in materially the same terms.

Legal Reasoning

The opinion’s reasoning rests on the relationship among three provisions and one factual disclosure:

§ 922(n): Makes it unlawful for any person under felony indictment to receive a firearm.
§ 922(d)(1): Makes it unlawful to sell or otherwise dispose of a firearm to a person under felony indictment.
Form 4473 indictment question: Queries the transferee’s indictment status to aid compliance with (1) and (2).
§ 922(a)(6): Criminalizes knowingly making a false statement “material to the lawfulness” of the transfer.

Defendants’ core theory was that their false “no” answer could not be “material to the lawfulness” of their transactions because, in their view, the Second Amendment categorically forbids Congress from limiting indictees’ gun rights. The court characterized this as an as-applied challenge to § 922(a)(6) that “is predicated on a facial challenge to § 922(n).” Defense counsel acknowledged as much in briefing and at argument.

Once Ogilvie held that § 922(n) is facially constitutional—i.e., that the Second Amendment permits Congress to prohibit at least some felony indictees from receiving firearms—the predicate collapses. If § 922(n) has constitutional applications, then a transferee’s indictment status is, as a matter of law, a fact “material to the lawfulness” of a firearm transfer. The materiality inquiry under § 922(a)(6) asks whether the fact tends to influence whether the transaction is lawful; in a statutory regime that, at least in some applications, lawfully disqualifies indictees, indictment status is quintessentially material.

The court explicitly declined to reach two additional questions:

No “right to lie” issue: The government argued that even if § 922(n) were unconstitutional, a person confronted with an unlawful question has no legal privilege to lie in response on Form 4473. Because Ogilvie resolved the constitutionality of § 922(n) facially, the panel did not need to address this more sweeping alternative ground.
Due process: One defendant (Peavler) raised a due-process claim premised on a liberty interest in exercising Second Amendment rights. The court noted that this theory rose and fell with the Second Amendment argument, and therefore required no separate analysis.

As to threshold and procedural questions, the panel clarified:

Guilty pleas and issue preservation: Although as-applied challenges often require factual development at trial, defendants did not waive their challenges by entering conditional guilty pleas. Where the constitutional question can be resolved by reference to the indictment’s own factual allegations and presents a pure legal issue, dismissal may be adjudicated pretrial.
Waiver of a narrower as-applied theory: At oral argument, defense counsel floated a distinct, narrower challenge: that § 922(a)(6) is unconstitutional as applied to persons with pending Oklahoma felony cases initiated by information (rather than indictment), because an “information” does not require a grand jury probable cause finding. The court deemed that theory waived for inadequate development below and on appeal, citing Mulready and Ross.

Impact

This decision, though nonprecedential, meaningfully clarifies the practical landscape for firearm transactions and prosecutions in the Tenth Circuit:

Immediate prosecutorial consequence: After Ogilvie, defendants cannot undermine § 922(a)(6) prosecutions for lying about indictment status by asserting a categorical, Bruen-based invalidity of § 922(n). The materiality of the Form 4473 indictment question is now secure in the Tenth Circuit.
Litigation strategy: Defendants seeking to press Second Amendment challenges to § 922(a)(6) predicated on the unconstitutionality of § 922(n) must articulate and preserve narrow, fact-specific as-applied arguments that are independent of a facial attack (for example, ones tied to specific state charging mechanisms or individualized circumstances). Broad, categorical arguments have been foreclosed by Ogilvie.
Compliance for FFLs and transferees: Indictment status remains a legally decisive disqualifier for firearm receipt and transfer, and the veracity of responses on Form 4473 remains crucial.
Doctrinal coherence post-Bruen: The decision aligns the Tenth Circuit with a body of post-Bruen case law sustaining certain longstanding disqualifications or temporary disabilities related to firearm possession and receipt. While Peavler does not itself apply the historical-tradition analysis, it leverages Ogilvie’s application of that framework to maintain the statutory architecture governing indictees.
Open questions: The court leaves open whether, and under what circumstances, a defendant might prevail on a tailored as-applied challenge (e.g., addressing the constitutional significance of prosecution by information versus grand-jury indictment, provided the issue is preserved and developed). It also leaves unresolved—because unnecessary to decide—whether there exists any circumstance in which a defendant may lawfully “lie to the sovereign” in response to unconstitutional questioning on Form 4473; the government’s categorical “no right to lie” theory remains unaddressed in this circuit.

Complex Concepts Simplified

Materiality (18 U.S.C. § 922(a)(6)): A false statement is “material” if it could influence whether a firearm transaction is lawful. Because federal law makes it unlawful for indictees to receive firearms (§ 922(n)) and for sellers to transfer to indictees (§ 922(d)(1)), whether the buyer is under indictment is material.
Facial vs. as-applied constitutional challenges:
- Facial challenge: Argues a law is unconstitutional in all or nearly all its applications. Ogilvie rejected a facial challenge to § 922(n), holding it is constitutional in at least some applications.
- As-applied challenge: Argues a law is unconstitutional as applied to a specific person or set of facts. In Peavler, the defendants’ as-applied attack on § 922(a)(6) was built on a facial attack on § 922(n), and thus failed after Ogilvie.
ATF Form 4473: A required form for firearm transfers by federally licensed dealers. Among other things, it asks whether the transferee is under indictment for a disqualifying offense. A false answer may support criminal liability if the question is material to lawfulness (as it is here).
Indictment vs. Information: An indictment is a formal charge returned by a grand jury; an information is a prosecutorial charging document that does not require a grand jury. Some states, including Oklahoma, can initiate felony cases by information. Whether this difference has Second Amendment significance for § 922(n) or § 922(a)(6) is an unresolved question in this opinion because defendants did not preserve it.
Effect of a guilty plea on constitutional claims: Although a guilty plea often waives many claims, a conditional plea may preserve pure legal challenges that can be resolved on the face of the indictment (e.g., whether the alleged conduct states an offense under the Constitution and statutes).

Conclusion

United States v. Peavler confirms a straightforward but consequential principle in the Tenth Circuit: because § 922(n) is facially consistent with the Second Amendment, a transferee’s indictment status is material to the lawfulness of a firearm transfer, and a knowing false denial on Form 4473 violates § 922(a)(6). The court’s reliance on Ogilvie forecloses broad, categorical attacks on indictee disqualifications in the context of false-statement prosecutions. At the same time, the panel signals that only properly preserved, narrowly tailored as-applied challenges—if any—remain viable avenues for defendants seeking constitutional relief in this domain.

Practically, the decision stabilizes a crucial compliance checkpoint in the federal firearms regime: the Form 4473 indictment question. For prosecutors and FFLs, the opinion underscores the centrality of truthful disclosures. For defendants and defense counsel, it underscores the importance of preservation and specificity when mounting post-Bruen constitutional challenges to federal firearms disabilities and related false-statement charges.

Key References

18 U.S.C. § 922(a)(6): False statements material to the lawfulness of a firearm sale or disposition.
18 U.S.C. § 922(d)(1): Prohibitions on selling/transferring to persons under felony indictment.
18 U.S.C. § 922(n): Prohibition on receipt of firearms by persons under felony indictment.
27 C.F.R. § 478.124(c)(1): Requirement to complete Form 4473.
United States v. Ogilvie, No. 24-4089, 2025 WL 2525579 (10th Cir. Sept. 3, 2025).
United States v. Brune, 767 F.3d 1009 (10th Cir. 2014).
United States v. Pope, 613 F.3d 1255 (10th Cir. 2010).
United States v. Todd, 446 F.3d 1062 (10th Cir. 2006).
Pharmaceutical Care Mgmt. Ass’n v. Mulready, 78 F.4th 1183 (10th Cir. 2023).
Ross v. University of Tulsa, 859 F.3d 1280 (10th Cir. 2017).