Federal firearm charges carry severe penalties, especially when a violent offender or drug trafficker is found to have a gun in their possession. For example, possession of firearms by convicted felons or drug users can provide punishments of up to ten years imprisonment under Section 922 (g) or 924 (a)(2). If the individual has been convicted of three prior violent felonies or serious drug trafficking offenses, the violator must serve at least fifteen years in prison pursuant to USC 924 (e).
There are special problems when defending federal gun cases and you should always contact an attorney. Your attorney should speak with you to determine the specific facts of your case; however, you should demand he/she do more. Due to the severity of these offenses, it is our practice to attack the prosecution from all sides.
This includes, but is not limited to filing motions opposing the constitutionality of the charged offense, the validity of the search, the jurisdiction and the sufficiency of the indictment. Additionally, we will attempt to suppress all illegally obtained evidence.
Furthermore, we interview gun dealers, use firearm experts to conduct investigations, obtain details of prior criminal history, obtain detailed information about the firearm(s) involved, establish who had possession of the firearm and when. We also visit the scene of the alleged crime.
In short, we hold the prosecutors and Government agents to a very high standard. If they have violated your constitutional rights in anyway, you can be assured we will launch a barrage of pre-trial motions and hold the Government accountable for violating those rights. If the constitutional violations are especially egregious, we do everything in our power to have the case against you dismissed.
However, federal prosecutors typically have indisputable evidence in firearm prosecutions i.e. video evidence, and if you cannot win on constitutional grounds (and there is irrefutable evidence) you may decide that accepting a plea-deal is your best option. In that case, we will work diligently with you and the prosecutor to get the best deal possible.
If your case does go to trial, we will provide a ferocious defense and force the Government to prove each element of their case beyond a reasonable doubt. For example, one simple defense is “lack of knowledge.” If the Government cannot prove you were aware the firearm was present beyond a reasonable doubt you cannot be found guilty of the offense.
Felon in possession of a firearm
To be convicted of a Section 922 (g) (1) violation, the government must prove, beyond a reasonable doubt, that: (1) the defendant previously had been convicted of a crime punishable by a term of imprisonment exceeding one year; (2) the defendant knowingly possessed, transported, shipped, or received the firearm; and (3) the possession was in or affecting commerce, because the firearm had traveled in interstate or foreign commerce at some point during its existence.
In deciding if an earlier conviction was punishable for a term surpassing one year, it is the maximum sentence the litigant could receive for the specific crime which applies; not time the defendant actually receives i.e. a longer sentence imposed for aggravating factors.
Actual possession is not necessary to sustain a conviction for possession; constructive possession is sufficient. Constructive possession exists when the Defendant exercises, or has power to exercise, dominion and control over the item. Simply put, the Government must prove the defendant voluntarily and intentionally exercised, or voluntarily and intentionally had power to exercise dominion and control over the firearm. However, mere presence at a crime scene or proximity to the firearm alone is insufficient to establish constructive possession.
Further, a defendant’s proximity to a firearm is insufficient, without further evidence of “dominion and control, to prove constructive possession.
Last, the Government must prove the firearm traveled across state lines at some point.
Regarding juveniles, an adjudication of adolescent wrongdoing qualifies as a “conviction” for Section 922 (g) purposes relies upon the law of the jurisdiction; however federal adjudication of adolescent misconduct does not qualify as a conviction for USC 922 (g) purposes.
Armed Career Criminal Act (ACCA)
The Armed Career Criminal Act (ACCA), 18 USC 924 (e), requires a minimum 15-year imprisonment term for defendants convicted of unlawful possession of a firearm (being a felon in possession of a firearm) under 18 USC Section 922 (g), who have three prior state or federal convictions for violent felonies or serious drug offences.
Section 924 (e) describes severe drug crimes as those punishable by 10 years or more imprisonment. It lists violent felonies as those (1) that have an element of threat, attempt, or use of physical force against another, (2) that involve burglary, arson, or extortion.
Using or carrying of firearm during and in relation to, or possession in furtherance of, crime of violence or drug trafficking.
Title 18, United States Code, Section 924 (c)(1) makes it a crime to use or carry a firearm during and in relation to a crime of violence or a drug trafficking crime, or to possess a firearm in furtherance of a crime of violence or a drug trafficking crime.
To be convicted, the government must prove each of the following beyond a reasonable doubt:
First, that the defendant used or carried a firearm. Second, that the defendant did so during and in relation to a crime of violence or a drug trafficking crime which may be prosecuted in federal court.
first, that the defendant possessed a firearm. Second, that the defendant did so in furtherance of a crime of violence or a drug trafficking crime which may be prosecuted in federal court.