University of Baltimore Law Forum Volume 33 Article 2 Number 1 Summer/Fall 2002 2002 Federal Firearms Prosecutions: A Primer Phillip S. Jackson Follow this and additional works at: http://scholarworks.law.ubalt.edu/lf Part of the Law Commons Recommended Citation Jackson, Phillip S. (2002) "Federal Firearms Prosecutions: A Primer," University of Baltimore Law Forum: Vol. 33 : No. 1 , Article 2. Available at: http://scholarworks.law.ubalt.edu/lf/vol33/iss1/2 This Article is brought to you for free and open access by ScholarWorks@University of Baltimore School of Law. It has been accepted for inclusion in University of Baltimore Law Forum by an authorized editor of ScholarWorks@University of Baltimore School of Law. For more information, please contact [email protected]. Articles FEDERAL FIREARMS PROSECUTIONS: A PRIMER By Phillip S. Jackson Introduction qualifying criminal conviction; and (3) that the firearm or ammunition affected interstate commerce. 7 Adefendant For the past several years, the U.S. Attorney's Of­ convicted ofa Section 922(g) violation faces a ten-year fice, in coordination with the Bureau ofAlcohol, Tobacco maximum term of imprisonment, except in those cases and Firearms and area police departments, has increas­ where because ofhis or her prior criminal record a defen­ ingly pursued in the U.S. District Court the prosecution of dant is considered an "armed career criminal" as defined persons with previous criminal felony convictions found in by 18 U.S.C. § 924(e).8,9 The "armed career criminal" possession offirearms. Until recently, in almost all such provisions of Section 924( e) are explored in more detail cases, there was the prospect of greater punishment for below. 10 those convicted in the federal courts of such a crime than Although the mens rea aspect ofthis crime requires in the state courts ofMaryland. I The purpose ofthis ar­ the government to prove defendant knowingly possessed ticle is to acquaint the criminal practitioner with a variety a firearm, it is not necessary that the government prove ofsalient issues he or she will confront when involved in a defendant knew that his or her possession was unlawful, case where a client faces federal firearm charges. that he or she knew ofhis or her prior felony conviction, or that he or she knew the firearm was somehow involved The Crime in interstate commerce. I I, 12 The lion's share oflitigation in these cases center on In the majority of cases pursued under this federal search and seizure issues and the possession element of firearms initiative, the primary charge is an alleged viola­ the crime. Whether a particular weapon is a firearm, tionof18 U.S.C. § 922(g)(I)(2002), colloquially known whether a defendant has been previously convicted of a as a "felon in possession" charge.2 That statute reads, "It disqualifying crime, and whether the firearm or ammuni­ shall be unlawful for any person who has been convicted tion affects interstate commerce are not typically points of in any court of a crime punishable by imprisonment for a contention at trial. 13 term exceeding one year, to ... possess in or affecting The definition of"firearm" is found at 18 U.S .C. commerce, any firearm or ammunition."3 Although pros­ § 921(a)(3), and includes: ecutions initiated under this statute usually involve the al­ leged illegal possession of a handgun, note that it is also (A) any weapon (including a starter gun) which unlawful for a convicted felon to possess firearm ammuni­ will or is designed to or may readily be converted tion.4 Indeed, a significant minority offederal firearm pros­ to expel a projectile by the action of an explo­ ecutions involved defendants in possession ofammunition SIve; without a handgun.5 The bail and sentencing provisions (B) the frame or receiver of any such weapon; outlined below apply with equal weight to those charged (C) any firearm muffler or firearm silencer; and with either unlawful possession ofa firearm or illegal pos­ (D) any destructive device. 14 session ofammunition. 6 To convict a defendant for unlawful possession of a By that definition, the government need not allege or firearm by a felon, the government must prove three basic prove that the firearm is operable. 15 Antique firearms are elements: (1) that the defendant possessed a firearm or excluded from the definition of"firearm" and, therefore, ammunition; (2) that prior to his or her possession ofthat from application ofthe criminal statute. 16 "Ammunition" weapon or ammunition, the defendant had suffered a dis- as defined by 18 U.S.C. §922(a)(17)(2002), includes 33.1 U. Bait L.F. 2 Articles "cartridge cases, primers, bullets [and] propellant pow­ record. der designed for use in any firearm. "17 As to the interstate commerce element, it is sufficient For the element concerning a defendant's prior crimi­ that the government shows that the firearm was manufac­ nal conviction to apply, it is only necessary that the tured outside the state where the defendant possessed it. 24 defendant's prior criminal conviction subjected him or her This too is an element typically handled for expediency's to a potential penalty of incarceration of more than one sake by stipulation. Since the Supreme Court's decision year. It is immaterial that the actual sentence meted out in United States v. Lopez,25 there have been some rum­ involved no term ofimprisonment or a term of imprison­ blings that more may be required in the way ofa showing ment ofless than a year; however, a misdemeanor con­ of a measurable or substantial effect on interstate com­ viction under state law and punishable by less than two merce. 26 However, in recent decisions the Fourth Circuit years incarceration would not disqualify a defendant from has declined to read into Lopez, and its progeny, any lawful firearm possession under 18 U .S.C. § 922(g)( 1).18. greater burden than that outlined above. 27 19 So, for example, a defendant whose only prior convic­ The same precepts that govern other crimes having tion was for a misdemeanor theft in Maryland (a crime a possessory element govern the possession element of a whose maximum sentence is eighteen months) could not Section 922(g)( 1) violation.28 The government need not be federally prosecuted under Section 922(g)( 1) for un­ prove the defendant had actual or exclusive possession lawful possession ofa firearm. 20 ofa firearm; constructive or joint possession is sufficient. 29 As it is seldom tactically advantageous to have the The government may prove constructive possession by prior criminal conduct ofone's client accentuated at trial, demonstrating that the defendant exercised, or had the this is an element that is typically readily stipulated to by power to exercise, dominion and control over the fire­ defense counsel. When addressed as a stipulation, the arm.30 On that basis, the Fourth Circuit upheld the con­ district court judge should only allow evidence ofthe fact viction ofa defendant where the firearm was seized from ofthe disqualifying conviction.21 No information about a residence in which the defendant had been observed for the nature or circumstances ofthat conviction should be two days prior to the execution ofthat warrant although imparted to the jury.22 When linked with an appropriate he was not present at the time ofthe warrant's execution limiting instruction to the jury, the potential prejudicial ef­ and in which the defendants personal papers were found fect of the client's prior criminal record can thereby be proximate to the seized firearm. 31 Similarly, the court up­ kept to a minimum. 23 held the conviction where the gun was recovered from the With an eye to that legislation, the best course of defendant's bedroom, and at the time of his arrest, am­ action for a practitioner representing a client charged with munition ofa matching caliber was found in the defendant's a Section 922(g) violation may be to request a pre-sen­ pocket.32 On the other hand, the court found evidence tence report very soon after entering the case. The dis­ insufficient to sustain a conviction where the firearm had trict court can, at its discretion, order a pre-sentence re­ been recovered from under the seat ofthe defendant who port even where a defendant has not yet been convicted was merely a passenger in an automobile.33 ofthe crime with which he or she has been charged. In With respect to joint possession, the Fourth Circuit the normal course ofinvestigation, the U.S. Probation Of­ affirmed in an unpublished case the firearm conviction of ficers do a very thorough and accurate examination of the driver of a vehicle who never had actual or exclusive defendant's prior criminal conduct. A pre-sentence in­ possession ofa firearm. 34 In that matter, a front seat pas­ vestigation may very well determine that in light ofthe senger was observed by the police pointing a handgun out above described legislation, your client may not be dis­ the car window, but the court was able to infer, based on qualified from possessing a firearm at all. At worst, the the police chase that followed, that the driver had knowl­ preliminary pre-sentence report will more fully inform you edge ofthe firearm's presence in the car, and had appar­ and your client ofthe potential exposure he or she faces. ently shared in the purpose ofthe passenger's brandishing As outlined below, your client's potential length ofincar­ that weapon. 35 ceration is very much a factor ofhis or her prior criminal In my legal experience, the "possession" aspect of 33.1 U. Bait. L.F.