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924(c) – Possession of a Firearm in Furtherance of a Drug or Violent Crime

18 U.S.C. 924(c)

The government is always eager to charge firearms counts in relation to drug and violent crimes.  The effect of a 924(c) conviction on a potential sentence is overwhelming.  In addition to mandatory prison time consecutive to the underlying crime, the law requires that each 924(c) count run consecutively as well.  Individuals facing two or more 924(c) counts are at risk of mandatory sentences of at least 30 years or more.  It is critical to get an attorney familiar with 924(c) defenses.

The Henry Law Firm PLLC has extensive experience representing clients in firearms prosecutions in relation to both drug and violent crimes.  We have defended individuals in cases involving semi-automatic weapons, shotguns, and destructive devices.  We have saved our clients significant amounts of time in jail.  We have also assisted individuals on appeal from firearms and related violent convictions obtain reversals in their cases.

18 USC 924(c) says:

(c)(1)(A) Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law, any person who, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime that provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime—

(i) be sentenced to a term of imprisonment of not less than 5 years;

(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and

(iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years.

The term of imprisonment stated must run consecutive to or stacked on the sentence of the underlying crime.  For example, if you face 46-57 months in prison for a drug offense and are also convicted of carrying a firearm in furtherance of that drug offense under 924(c) you must add 60 additional months to the sentence.  Additional penalties are involved for short-barreled weapons, semi-automatic assault weapons, machine guns, silenced weapons and destructive devices.  No person convicted under 924(c) may be sentenced to probation.

If you are convicted of more than one violation of 924(c), the second and subsequent convictions each carry a mandatory minimum 25 years in prison consecutive to each other.  For example, in our previous scenario an individual facing 46-57 months for a drug crime and an additional 60 months for the single 924(c) violation.  If their had been two 924(c) violations the individual would face 46-57 months and an additional 30 years.

Under this statute a “drug trafficking crime” is defined as:

[A]ny felony punishable under the Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or chapter 705 of title 46.

Under this statute a “crime of violence is defined as any felony that:

(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

Other penalties may apply if a person uses or carries armor piercing ammunition.

The United States Supreme Court ruled in Johnson v. United States that the “residual clause” of the Armed Career Criminal Act was constitutionally vague.  The language in 924(c)(3)(B) defining a crime of violence is similar, but not identical to the residual clause in Johnson.  Therefore, litigation will take place on what crimes qualify as “violent” under 924(c).  This is an area ripe for review when looking to combat a charge under 924(c).

The Consequences Are Too Dire To Trust Your Defense To Just Anyone.

The Henry Law Firm PLLC is dedicated to vigorously defending its clients facing minimum mandatory firearm sentences. Call the Henry Law Firm PLLC at 646-820-0224 to learn how our innovation and experience can help you.

What Does it Mean to Have “Constructive Possession” of a Firearm in New York?

Although we often hear about a lack of gun control in the U.S., federal agents arrest around 7,000 individuals for firearms violations every year, and many more arrests are made at the state level. While the Second Amendment and current federal regulations do allow for legal ownership of a wide variety of firearms, you can face stiff criminal penalties if arrested for possession of an illegal weapon. Furthermore, felony convicts and others who have had their gun ownership rights revoked also face arrest, which are among the most common type of federal firearms. States and localities such as New York do go further than federal law in regulating firearms, requiring permits for pistol ownership and outlawing assault rifles. But what does it mean to have possession of a firearm in New York? Under the concept of “constructive possession,” defendants in firearms crime cases face legal challenges in asserting their criminal defense in New York.

Possession and Constructive Possession Defined

First off, it should be understood that possession is not the same as ownership. If you are holding a firearm, you are possessing it, regardless of whether someone loaned it to you even for a brief moment, you are transferring it to someone else, or you simply found it.

Constructive possession takes the concept of possession a step further. It says that a person can be considered to have possessed a firearm – and thus run afoul of any relevant firearm laws – even if the firearm was not literally in their possession. Specifically, New York courts have held that: a defendant has property in his or her constructive possession when that defendant:

  • exercises a level of control over the area in which the property is found, OR
  • exercises control over the person from whom the property is seized, AND
  • this control was sufficient to give the defendant the ability to use or dispose of the property

New York legal authorities have also said that two people can both have constructive possession over contraband when: “they each exercise dominion or control over the property by a sufficient level of control over the area in which the property is found.”

Defending Against Constructive Possession Charges

Taking the above definition, this means that prosecutors can bring charges for illegal possession of a firearm when the defendant is not literally possessing the firearm on his body or in his personal belongings, but where a gun is simply found on a person over whom he has control (e.g. a spouse, a child, a subordinate, etc.) or in property he possesses, such as a shared home, vehicle, or business.

That said, it is important to remember that prosecutors must prove every element of a firearms charge beyond a reasonable doubt, and an experienced criminal defense attorney can cast doubt and present contrary arguments against the prosecutor’s allegations.

Such defenses can take any number of specific forms, but might include questioning whether a defendant did in fact have control over the person or the property on which the firearm was found or whether the defendant was even aware of the presence of the firearm. Talk to an experienced criminal defense attorney about the best defense in your particular circumstance.

Contact a New York Defense Attorney Today

The Henry Law Firm PLLC provides criminal defense to individuals and businesses throughout New York in all state and federal investigations and prosecutions. If you believe you may be under investigation for any state or federal crime, do not hesitate to contact us today to schedule a confidential consultation regarding your matter.

Are There Legal Defenses to Extortion/Blackmail?

Extortion and blackmail crimes both involve threats made against another person to do violence to that person or their property – which can include publicizing facts about that person to damage his or her reputation – for the purpose of extracting money or other property from the person. Under both state and federal law, an extortion conviction is a felony that can mean many years in prison, fines, as well as a ruined personal and professional reputation. But sometimes people are investigated and/or charged with extortion based on exaggerations or statements taken out of context. If you are under investigation for extortion, it is important to obtain experienced legal counsel to present your best defenses to the potential charges.

Lack of Evidence to Support an Extortion Charge

Extortion statutes may vary across states and at the federal level, but in general they require that the defendant have knowingly made a threat to damage the person, property, or reputation of a victim with the purpose of obtaining money or other property from the victim.

When a disagreement between parties gets out of control, an extortion or blackmail allegation may arise based on what has actually just heated negotiations and discussions which should not be taken literally or which were not based on an actual intent to threaten another person. Your defense attorney can assess all of the available evidence for relevance and strength and cast doubt on the prosecutor’s allegations in this regard, as the prosecutor is required to prove your intent beyond a reasonable doubt.

Lack of Admissible Evidence

Even where evidence may support elements of an extortion or blackmail charge, that evidence can only be used against you where it is admissible based on being legally obtained by police and other government agents.

If evidence was obtained through illegal means – including custodial interrogations that did not include Miranda warnings, detainments not supported by reasonable suspicion, questionings that did not honor your right to counsel, searches not conducted via a warrant or a warrant exception – your attorney can successfully argue that such evidence should not presented to a jury and that charges should be dismissed.

Attempted Extortion or Conspiracy to Commit Extortion

When no money or property was actually obtained in response to an alleged extortion threat, prosecutors may still try to bring charges based on an attempt to extort or even a conspiracy (agreement) to commit conspiracy. In such cases, your attorney can argue that you did not have the requisite intent for either an attempt or conspiracy and/or that no significant steps were actually taken in furtherance of committing extortion.

Other Defenses to Extortion

Other defenses that your attorney may raise to an extortion charge could include:

  • You performed illegal acts under duress
  • You were voluntarily or involuntarily intoxicated at the time, negating the mental intent
  • You otherwise lacked the mental capacity to commit extortion

Speak to an experienced defense attorney at the first sign of an extortion investigation to begin mounting your best defense to all potential charges.

Contact a New York Extortion Defense Attorney Today

The Henry Law Firm PLLC provides criminal defense to individuals and businesses throughout New York in all state and federal investigations and prosecutions. If you believe you may be under investigation for any state or federal crime, do not hesitate to contact us today to schedule a confidential consultation regarding your matter.  

Can Criminal Liability Exist Even if You Were “Ignorant” to Criminal Activity?

One of the first responses many people have when confronted by law enforcement over their allegedly illegal activity (or by internal investigators on the job) is to say “I didn’t think I was doing anything wrong.” This is highly problematic for several reasons. First, for reasons that will be explained more in-depth below, whether you thought you were committing an illegal act is often completely irrelevant to whether you might have criminal liability for that act. Second, a statement that you did commit an act that you did not think was illegal (but which in fact was) is essentially the same as admitting to authorities, “I committed an illegal act.”

Whether or not you did in fact commit an illegal act can be the basis of analysis and arguments between your defense attorney and prosecutors, but you should never attempt to do this on your own in front of investigators without speaking first to an experienced criminal defense attorney who can assess the facts and the applicable law and formulate the best strategies and defenses on your behalf.

Is Ignorance of the Law Really “No Defense?”

The phrase “ignorance of the law is no defense” is based in truth, but there are ways in which it can be misapplied to a situation. The phrase is truthful in the sense that a person’s failure to know that a certain criminal law exists does not make them innocent for violating the law. For example, if you possess a certain synthetic drug that was recently made illegal by state or federal law, you can be criminally charged for possession nonetheless.

That said, some criminal laws include knowledge or mens rea requirements, and your knowledge of what you were doing when you committed the allegedly illegal act (as opposed to your knowledge of the law itself) can come into play as a defense.

Specific intent crimes require prosecutors to prove your intent to commit a specific act. For example, larceny crimes often require an intent to deprive another person of property, and accidentally taking property you thought was yours could be a valid defense.

General intent crimes, on the other hand, do not require a specific intent to bring about a result, but rather a lower standard of knowledge of what one was doing. Examples include certain arson and rape crimes.

For strict liability crimes, such as statutory rape, a person can be criminally charged even if they thought they were committing a legal act (e.g. believed a sexual partner to be of the age of consent).

Aiding and Abetting / Accomplice Liability

Another common issue that arises with individuals being charged with crimes for which they lacked full knowledge is in the area of accomplice liability, otherwise known as aiding and abetting. With accomplice liability, a person can be charged with a crime that he did not actually take the action to commit if he provided assistance or encouragement in the commission of that criminal act, even without full knowledge of the criminal nature of the actions.

Common scenarios that criminal accomplice liability can attach include:

  • Providing assistance in engaging in a criminal transaction (e.g. money laundering)
  • Providing otherwise legal tools to aid another in committing a crime
  • Providing support, encouragement, assistance, or shelter in preparation of a crime or to help evade arrest
  • Assistance in planning a crime or in evading arrest

In such situations, prosecutors can sometimes use the concept of “willful blindness” to charge an individual who lacked full knowledge of criminal activity if it is determined that the individual had reason to suspect criminal activity was afoot but willfully avoided learning about the criminal nature of the matter.

In all cases, individuals under criminal investigation or who suspect they may soon be under investigation should contact a criminal defense lawyer to assess their potential liability and strategize their defense.

Contact a New York Defense Attorney Today

The Henry Law Firm PLLC provides criminal defense to individuals and businesses throughout New York in all state and federal investigations and prosecutions. If you believe you may be under investigation for any state or federal crime, do not hesitate to contact us today to schedule a confidential consultation regarding your matter.  

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