Anyone who finds themselves involved in a gun trafficking charge will need to seek expert legal counsel who can navigate these complex federal laws.
In federal law, the movement of any weapons or related goods through an illegal market is a very serious charge that can have severe consequences. Often, this takes place as a part of a larger pattern of organized crime, including drug trafficking and other serious offenses.
Gun trafficking is a federal crime that falls under the greater umbrella of weapons trafficking which would include ITAR violations and munitions offense. This refers to the movement or transfer of firearms, guns, weapons, parts, or ammunition from a legal market to an illegal market.
In addition to other weapons, this can include any firearms, machine guns, semi-automatic assault weapons, automatic machine guns, sawed-off shotguns or rifles, silencers, and ammunition.
There are three primary methods in which guns are diverted to illegal markets:
A straw purchase occurs when an individual who can legally buy a gun does so on behalf of someone else, usually someone who is prohibited from purchasing or possessing the firearm.
Another form includes gun diversion through a private seller. Current federal law states that a licensed gun dealer must perform a background check prior to a gun sale- however, a private seller can sell guns without these background checks in many states. This allows an individual who cannot legally buy or own a gun – like a felon or someone with a history of domestic violence – to purchase the guns and then divert them to trafficking channels.
The final method is gun theft, either from dealers or individuals. It is estimated that 300,000 guns are stolen each year and then used in the commission of a violent crime.
The primary recipients of guns trafficked from the United States are Canada and Mexico. The amount of American-sourced guns that are discovered in Mexico is high enough that Mexico’s government has sued American manufacturers, alleging they facilitated the marketing and sales of firearms to criminal groups in Mexico.
Guns from the United States are also often trafficked to other parts of the world, especially Central American countries such as Guatemala, El Salvador, and Honduras. The Caribbean and South America have also faced similar problems. Brazil has reported that the United States is its biggest source of foreign firearms.
Latin America is the region with the largest number of gun homicides in the world, many of which are the result of gun trafficking.
When investigating other crimes, there are a number of indicators that may signal gun trafficking is involved. The first thing that can be a sign is what is known as “time to crime,” or the time that elapses between a gun being first purchased and when it is used in connection with a crime. A gun purchased shortly before use is considered to be purchased with intent, so law enforcement officials consider a period of less than three years elapsing to be a sign of trafficking.
Another sign is the movement of guns across state lines prior to their use in a crime. Between 2010 and 1029, almost 30% of guns used in a crime were purchased from a licensed gun dealer in a state other than the one where the crime was committed.
A large part of criminal investigations can be this tracing of guns back to their original point of purchase. Licensed gun dealers will track sales and things like the serial number on each weapon in order to maintain records that can be helpful in these scenarios.
Gun trafficking itself is not a specific crime under United States federal law; however, some of the conduct related does violate current law. For example, straw purchasing is generally charged as making a false statement in connection with a gun sale facilitated by a licensed gun dealer.
Some states also have laws specifically intended to punish individuals who purchase guns with the intent of providing them to a trafficker. Currently, these states are California, Connecticut, Maryland, Minnesota, New Jersey, Pennsylvania, and Rhode Island.
A recent announcement from the Biden administration also focuses on the enforcement of gun trafficking measures in five high-risk areas of the country. In addition to focusing on criminal enforcement resources related to individuals, this program is also focused on strengthening regulatory enforcement over gun dealers that may contribute to weapons trafficking when they fail to comply with federal law regarding the operation of their business.
Because there is no specific law related to gun or weapons trafficking, it is usually charged in conjunction with a crime like possession of drugs or drug trafficking. Other firearms offenses can usually be applied as well. Often, charges will be a compilation of these things, and firearms offenses run consecutively, meaning the sentences can be very long.
Possession of drugs or drug trafficking with a weapons offense can increase federal prison time up to 50 years, which in most cases equates to a life sentence. In addition, firearm offenses can have penalties of up to 25 years for each individual charge. This is in addition to the hefty fines associated with these crimes as well.
In any case that involves alleged trafficking of weapons, the prosecution maintains the burden of proof and must show that beyond a reasonable doubt, the defendant used or carried the firearm in relation to the associated crime or possessed the firearm in furtherance of that crime. This means the most simple and effective strategy for a defense would be to show that the person did not possess, use, or carry the gun in any way related to the crime. If this can be shown, a charge may be dismissed.
However, in many cases, it is undeniable that there was a gun present as a part of the underlying charge. In these instances, a defense attorney will be able to probe further into the case to build a defense.
They will often start by determining if there were any procedural issues during the investigation. If the police overstepped their constitutional bounds while searching for the firearm or performing an arrest, it can lead to the evidence being thrown out and becoming inadmissible. When a court grants the motion to suppress evidence based on this, it can mean the prosecution is left with insufficient evidence to proceed with the case. They may then choose to drop the charges related to that evidence.
When a case makes it to trial, the prosecution does not only have to prove that a firearm was used in furtherance of the alleged crime. They also have to prove that the defendant committed a drug trafficking or violent offense. If they are not convicted of such, then the related gun trafficking charge cannot be moved forward. The defense for these underlying crimes may have a greater impact than the defense that is related specifically to gun trafficking.
A skilled defense attorney will be able to walk through your case and establish a defense based on the facts that create a reasonable doubt in the minds of the jury.