FEDERAL FIREARMS CHARGESSeptember 23, 2010
Prosecution of Weapons/Guns Violations in Federal Court
By John Teakell
Prosecutions in federal district courts in the United States (U.S. District Courts) for violations of federal gun laws are prosecuted by the United States Attorney’s Office, and usually are investigated by the federal investigative agency known as the Bureau of Alcohol, Tobacco and Firearms (“ATF” or “BATF”). Commonly, these charges include:
- Possession of a firearm by a convicted felon;
- Possession or use of a firearm in connection with a drug felony or drug trafficking felony;
- Trafficking in firearms by an unauthorized person (not a registered dealer);
- Possession of a firearm by a drug user or addict;
- Possession of a non-registered firearm;
- Possession of a non-registered automated firearm (“machine gun”);
- Restricted ammunition;
- Interstate transportation of firearms;
- Prohibition of possession or ownership of body armor by violent felons;
10. Possession of firearms in federal facilities.
11. Possession of a firearm by a mentally defective person;
12. Possession of a firearm by an illegal alien.
These federal firearms violations, or “gun charges” as these are sometimes called, are found in Title 18, United States Code, Sections 921-931.
II. FIREARMS CHARGES OFTEN USED IN INDICTMENTS
A. Possession or use of a Firearm in Connection with a Drug Felony
A great number of federal Indictments charging Title 21 drug charges or drug trafficking include the federal weapons charge of possessing or using a firearm in connection with a drug trafficking felony. This allegation is found at Title 21, United States Code, Section 924(c). This commonly-used charge is significant in that, in addition to the sentence that could be imposed under federal sentencing, that is, under the U.S. Sentencing Guidelines, a “924(c)” charge carries a mandatory minimum of five (5) years. This means that in addition to any Guidelines sentencing for drug charges for possession with intent to distribute (based upon a quantity larger than that considered to be for personal use) or for drug trafficking (distribution), a conviction of a 924(c) charge would mandate that five (5) years be added to the Guidelines sentence.
In order to convict for this charge, the government has to prove that 1) a firearm weapon 2) was possessed or “used” (brandished, pointed, carried, etc.) 3) in connection with a drug trafficking felony. Sometimes, defendants are convicted if a firearm is present with or near controlled substances that are the subject of charges for possession with intent to distribute, or distribution of controlled substances (drug trafficking).
B. Felon in Possession of a Firearm
Pursuant to federal law and state law (most states), it is illegal to possess a firearm once a person has been convicted of any felony. This is true regardless of the felony, the degree of the felony, or regardless of whether it was a violent felony. Conviction can be had for possession of a firearm even if the underlying felony was a non-violent economic crime.