Firearms/Weapons OffensesLowering the incidence of gun crimes is an important mandate for federal law enforcement agencies and federal prosecutors throughout the United States. Federal gun and weapons laws are tough; the penalties for conviction are harsh. Relying solely on the prosecutor's good will is a mistake you cannot afford to make. At The Law Offices of Roderick C. White we defend federal a wide variety of federal gun crimes and federal weapons violations. Specific types of cases our law office can assist you with include: POSSESSION OF A FIREARM BY A CONVICTED FELON18 U.S.C. § 922(g)(1) and 924(a)(2), make it a crime for a convicted felon to possess a firearm. In order to convict the government must prove each of the following beyond a reasonable doubt: That the individual charged knowingly possessed a firearm, as charged; That before the individual possessed the firearm, the individual had been convicted in a court of a crime punishable by imprisonment for a term in excess of one year, that is, a felony offense; and That the possession of the firearm affected commerce; that is, that before the defendant possessed the firearm, it had traveled at some time from one state to another. The term "firearm" means any weapon that will or is designed to or may readily be converted to expel a projectile by the action of an explosive. The term "firearm" also includes the frame or receiver of any such weapon, or any firearm muffler or firearm silencer, or destructive device. Willfulness is not an element of this offense. Moreover, the government need not prove that the defendant knew the firearm was in or affected interstate commerce. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms. A state's restoration of a federally convicted felon's civil rights does not remove the firearms possession disability imposed by federal law. If the conviction is a state conviction, state statutes restoring civil rights may relieve a convicted person of the disability to possess a firearm, but not if the state pardon expressly provides such person may not possess a firearm. Possession, as that term is used in this case, may be of two kinds: actual possession and constructive possession. A person who knowingly has direct physical control over a thing, at a given time, is then in actual possession of it. A person who, although not in actual possession, knowingly has both the power and the intention, at a given time, to exercise dominion or control over a thing, either directly or through another person or persons, is then in constructive possession of it. Possession may be sole or joint. If one person alone has actual or constructive possession of a thing, possession is sole. If two or more persons share actual or constructive possession of a thing, possession is joint. USING/CARRYING A FIREARM DURING COMMISSION OF A DRUG TRAFFICKING CRIME OR CRIME OF VIOLENCE 18 U.S.C. § 924(c)(1) makes it a crime for anyone to use or carry a firearm during and in relation to a drug trafficking crime or crime of violence or to possess a firearm in furtherance of such a crime. In order to convict the government must prove each of the following beyond a reasonable doubt: That the individual knowingly used or carried a firearm during and in relation to or knowingly possessed a firearm in furtherance of the commission of the drug trafficking crime or crime of violence To prove the individual "used" a firearm in relation to a drug trafficking crime or crime of violence, the government must prove that the individual actively employed the firearm, such as a use that is intended to or brings about a change in the circumstances of the commission. "Active employment" may include brandishing, displaying, referring to, bartering, striking with, firing, or attempting to fire the firearm. Use is more than mere possession of a firearm or having it available during the drug trafficking crime or crime of violence. To prove that the individual "carried" a firearm, the government must prove that the individual defendant carried the firearm in the ordinary meaning of the word "carry," such as by transporting a firearm on the person or in a vehicle. The individual's carrying of the firearm cannot be merely coincidental or unrelated to the drug trafficking crime or crime of violence. To prove that the individual possessed a firearm "in furtherance," the government must prove that the individual possessed a firearm that furthers, advances, or helps forward the drug trafficking crime or crime of violence. "In relation to" means that the firearm must have some purpose, role, or effect with respect to the drug trafficking crime or crime of violence. The statute provides a minimum, consecutive sentence of 5 years, with various factors increasing the minimum, e.g., 7-year minimum if the firearm is brandished, 18 U.S.C. § 924(c)(1)(A)(ii); 10-year minimum if the firearm is discharged, 18 U.S.C. § 924(c)(1)(A)(iii); or 30-year minimum if the firearm is a machine gun, 18 U.S.C. § 924 (c)(1)(B)(ii). A person does not begin serving the consecutive prison sentence contemplated here until they have completed the prison sentence imposed for the underlying drug trafficking crime or crime of violence. DEALING IN FIREARMS WITHOUT LICENSE 18 U.S.C. § 922(a)(1)(A), and 924(a)(1)(D), make it a crime to be in the business of dealing in firearms without a federal license. In order to convict the government must prove each of the following beyond a reasonable doubt: That the individual charged was a dealer in firearms engaged in the business of selling firearms at wholesale or retail; That the individual engaged in such business without a license issued under federal law; and That the defendant did so willfully, that is, that the defendant was dealing in firearms with knowledge that his conduct was unlawful. The term "firearm" means any weapon which will or is designed to or may readily be converted to expel a projectile by the action of an explosive. The term "firearm" also includes the frame or receiver of any such weapon, or any firearm muffler or firearm silencer, or destructive device. A person is "engaged in the business of selling firearms at wholesale or retail," if that person devotes time, attention, and labor to dealing in firearms as a regular course of trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms. Such term does not include a person who makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of that person's personal collection of firearms. The term "with the principal objective of livelihood and profit" means that the intent underlying the sale or disposition of firearms is predominantly one of obtaining livelihood and pecuniary gain, as opposed to other intents, such as improving or liquidating a personal firearms collection. Proof of profit is not required as to a person who engages in the regular and repetitive purchase and disposition of firearms for criminal purposes or terrorism. FALSE STATEMENT TO FIREARMS DEALER 18 U.S.C. § 922(a)(6), and 924(a)(2), make it a crime for anyone to make a false statement to a firearms dealer in order to buy a firearm. In order to convict the government must prove each of the following beyond a reasonable doubt: That the individual charged made a false statement while acquiring a firearm from a licensed dealer; That the statement was intended or was likely to deceive about a material fact, i.e., one which would affect the legality of the sale to the individual.The term "firearm" means any weapon that will or is designed to or may readily be converted to expel a projectile by the action of an explosive. The term "firearm" also includes the frame or receiver of any such weapon, or any firearm muffler or firearm silencer, or destructive device. A statement is "false or fictitious" if it was untrue when made and was then known to be untrue by the person making it. A false statement is "likely to deceive" if the nature of the statement, considering all of the surrounding circumstances at the time it is made, is such that a reasonable person of ordinary prudence would have been actually deceived or misled. There is no distinction made between acquisition and attempted acquisition each creates only one offense- the making of a false statement with respect to the eligibility of a person to obtain a firearm from a licensed dealer. UNLAWFUL SALE OR DISPOSITION OF FIREARM 18 U.S.C. § 922(d) and 924(a)(2), make it a crime for a person knowingly to sell or otherwise dispose of a firearm to a person in a prohibited category (e.g., a convicted felon) when the seller knows or has reasonable cause to believe that such a person is a member of a prohibited category (e.g., a convicted felon). In order to convict the government must prove each of the following beyond a reasonable doubt: That the individual charged knowingly sold a firearm to ; That at the time of the sale, buyer was a person in a prohibited category (e.g., a convicted felon); and That at the time of the sale, that the individual knew or had reasonable cause to believe that the buyer was a person in a prohibited category (e.g., a convicted felon). The term "firearm" means any weapon that will or is designed to or may readily be converted to expel a projectile by the action of an explosive. The term "firearm" also includes the frame or receiver of any such weapon, or any firearm muffler or firearm silencer, or destructive device. RECEIVING OR POSSESSING UNREGISTERED FIREARMS 26 U.S.C. § 5861(d) makes it a crime for anyone knowingly to possess certain kinds of unregistered firearms. In order to convict the government must prove each of the following beyond a reasonable doubt:
Possession, as that term is used in this case, may be of two kinds: actual possession and constructive possession. A person who knowingly has direct physical control over a thing, at a given time, is then in actual possession of it. A person who, although not in actual possession, knowingly has both the power and the intention, at a given time, to exercise dominion or control over a thing, either directly or through another person or persons, is then in constructive possession of it. Possession may be sole or joint. If one person alone has actual or constructive possession of a thing, possession is sole. If two or more persons share actual or constructive possession of a thing, possession is joint. The firearms prohibited here a are defined by 26 U.S.C. § 5845: (a) Firearm The term “firearm” means (1) a shotgun having a barrel or barrels of less than 18 inches in length; (b) Machinegun The term “machinegun” means any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger. The term shall also include the frame or receiver of any such weapon, any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machinegun, and any combination of parts from which a machinegun can be assembled if such parts are in the possession or under the control of a person. (c) Rifle The term “rifle” means a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder and designed or redesigned and made or remade to use the energy of the explosive in a fixed cartridge to fire only a single projectile through a rifled bore for each single pull of the trigger, and shall include any such weapon which may be readily restored to fire a fixed cartridge. (d) Shotgun The term “shotgun” means a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder and designed or redesigned and made or remade to use the energy of the explosive in a fixed shotgun shell to fire through a smooth bore either a number of projectiles (ball shot) or a single projectile for each pull of the trigger, and shall include any such weapon which may be readily restored to fire a fixed shotgun shell. (e) Any other weapon The term “any other weapon” means any weapon or device capable of being concealed on the person from which a shot can be discharged through the energy of an explosive, a pistol or revolver having a barrel with a smooth bore designed or redesigned to fire a fixed shotgun shell, weapons with combination shotgun and rifle barrels 12 inches or more, less than 18 inches in length, from which only a single discharge can be made from either barrel without manual reloading, and shall include any such weapon which may be readily restored to fire. Such term shall not include a pistol or a revolver having a rifled bore, or rifled bores, or weapons designed, made, or intended to be fired from the shoulder and not capable of firing fixed ammunition. (f) Destructive device The term “destructive device” means (1) any explosive, incendiary, or poison gas (2) any type of weapon by whatever name known which will, or which may be readily converted to, expel a projectile by the action of an explosive or other propellant, the barrel or barrels of which have a bore of more than one-half inch in diameter, except a shotgun or shotgun shell which the Secretary finds is generally recognized as particularly suitable for sporting purposes; and (3) any combination of parts either designed or intended for use in converting any device into a destructive device as defined in subparagraphs (1) and (2) and from which a destructive device may be readily assembled. The term “destructive device” shall not include any device which is neither designed nor redesigned for use as a weapon; any device, although originally designed for use as a weapon, which is redesigned for use as a signaling, pyrotechnic, line throwing, safety, or similar device; surplus ordnance sold, loaned, or given by the Secretary of the Army pursuant to the provisions of section of the United States Code. |
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