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Felon in Possession of a Firearm

18 U.S.C. 922(g)

In the United States, it is a crime for a convicted felon to own, carry, possess or otherwise control a firearm.  Additionally, it is a crime to possess ammunition, even if no firearm is present.  The consequences of violating this provision of the law can be devastating, and in some circumstances carry significant minimum mandatory penalties.  As a result, it is important to understand the rules and regulations as they apply to firearm possession by previously convicted felons. In addition to the prohibition against felons possessing firearms, other classes of individuals cannot possess firearms including illegal aliens and individuals convicted of domestic violence offenses.

The Henry Law Firm PLLC has effectively represented individuals charged with or being investigated for firearm possession.   We have defended individuals in cases involving actual possession of firearms, constructive possession of firearms and armed career criminals.  We have successfully argued against minimum mandatory sentences, and avoided charges altogether in some instances.  We have also assisted individuals on appeal from firearms convictions obtain reversals in their cases.

18 USC 922(g)(1) says:

(g) It shall be unlawful for any person—
(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;

to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

What is a Felon?

By definition, a felon is simply a person who has been convicted of a crime that carries a penalty of more than one year in prison.  The individual need not have actually served more than one year in jail.  Under federal law it does not matter whether a state court classifies the offense as a misdemeanor.  The only factor is the amount of potential prison time the individual faces.

What does “to ship or transport in interstate or foreign commerce, or possess in or affecting commerce” mean?

In most firearm cases under 18 U.S.C. 922(g) the interstate commerce prong is met if the firearm charged was manufactured in a state other than the state where the charges a brought.  Interstate commerce can be basically defined as having crossed state lines.  There are a limited number of firearm manufacturers in the United States.  So, it is common for a firearm to have been manufactured in a state different from the state where charges are pending.  Therefore, for the gun to be in that state it must have crossed from one state to another meeting the interstate commerce prong.

To satisfy interstate commerce requirement of statute prohibiting possession of ammunition by a convicted felon, the government need only make a minimal showing that the ammunition in question was in or affecting interstate commerce.

United States v. Danielson, 199 F.3d 666 (2d Cir. 1999)

Constructive Possession

In addition to actual possession, the law recognizes the concept of constructive possession.  Constructive possession occurs when a person exercises control over an object even if it is not physically on their person.  An example is a firearm may be in constructive possession of a rear passenger in a car when the gun is located in the glove compartment.  Constructive possession of a firearm by a felon is a violation of the law and is a very fact specific determination.

Constructive possession of firearm exists, for purposes of determining whether defendant was felon in possession of a firearm shipped in interstate commerce, when defendant has the power and intention to exercise dominion and control over an object, and constructive possession may be shown by direct or circumstantial evidence.

United States v. Payton, 159 F.3d 49 (2d Cir. 1998)

Ammunition

922(g)(1) makes it a crime to possess ammunition.  It is a violation of the law to possess ammunition alone.  There is no requirement for a firearm to be present.

Armed Career Criminal Act – 18 U.S.C. 924(e)

If you are convicted of a violation of 922(g) and have a criminal history you may be subject to a 15-year mandatory minimum sentence if you have 3 prior felony conviction for drugs or violence.  This law is called the Armed Career Criminal Act (ACCA).  924(e) says:

(e)(1) In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years, and, notwithstanding any other provision of law, the court shall not suspend the sentence of, or grant a probationary sentence to, such person with respect to the conviction under section 922(g).

While the definition of a serious drug offense is not subject to significant litigation at this point, the definition of a violent felony is very much in flux.  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 residual clause controlled a portion of the definition of what constitutes a violent felony.  And a result, many offenses that would have been previously considered violent are not.  This can make the difference in many years in prison as the maximum penalty under 922(g) is 10 years versus the mandatory minimum sentence of 15 years under ACCA.

How Can We Help

The Henry Law Firm PLLC has represented individuals charged with violations of 922(g) and 924(e) at the trial and appellate level.  We know how to attack fingerprint evidence, DNA evidence, interstate commerce issues and prior conviction records.  We have successfully avoided charges, reduced charges and overturned convictions on appeal.  We are dedicated to vigorously defending its clients facing firearm charges. Call the Henry Law Firm PLLC at 646-820-0224 to learn how our 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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