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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.

Can I Go to Jail For Using Bitcoin?

Bitcoin and similar “crytpocurrencies” have been around for years, but Bitcoin is getting a lot more attention than usual in 2017, primarily based on the fact that such currencies have risen in value six times over since the start of the year, and $6.6 billion in digital currencies are now traded daily. This growth in digital currencies is having some effect on mitigating the cloud of controversy that has hung over Bitcoin and similar currencies, which is partly due to the mysterious origins of Bitcoin (for years its inventor remained anonymous) and the frequent use of Bitcoin in criminal transactions. But, as digital currency grows in popularity, more individuals and businesses are justifiably interested in learning more while understandably cautious about the legality.

Digital Currency Usage Is Not Inherently Illegal

Individuals and businesses are permitted to use Bitcoin and other similar currencies, although some states such as New York do impose licensing requirements on certain parties. Under New York State’s recently promulgated BitLicense rules, parties engaged in the following activities are required to obtain a BitLicense from the state if they are conducting business in New York or with people who reside in New York:

  • Virtual currency transmission
  • Storing, holding, or maintaining custody or control of virtual currency on behalf of others
  • Buying and selling virtual currency as a customer business
  • Performing exchange services as a customer business
  • Controlling, administering, or issuing a virtual currency

Customers and merchants who merely conduct transactions involving digital currency are not required to obtain a license in New York.

Criminal Liability With Bitcoin

The most common situations in the news involving criminal liability for use of Bitcoin and similar currencies is when the currency is used for illegal purposes. Several high-profile individuals have been convicted of crimes in connection with an online marketplace called Silk Road where illegal transactions involving criminal acts for hire, illegal pornography, and drug trafficking were facilitated by use of Bitcoin.

In one case, an entrepreneur who ran a service facilitating Bitcoin transactions pled guilty and served time in federal prison for facilitating the purchase of illegal drugs on Silk Road using Bitcoin. In another case, the founder of Silk Road was sentenced to life in prison for his role in facilitating illegal transactions using Bitcoin, and his trial included evidence of five potential murder-for-hires that he sought out “to protect his burgeoning creation from informants.”

Bitcoin and similar currencies have also been factors in criminal investigations and prosecutions involving fraudulent securities dealings as well as money laundering. Ultimately, many of the same finance-related crimes that can be committed with traditional currency can also be committed with digital currency, although, perhaps ironically given the attraction many of had to the supposed privacy of digital currency, crimes involving digital currency have become easier for law enforcement to investigate in some cases.

When faced with any questions over potential criminal liability for a proposed transaction or one that has already occurred, parties are highly encouraged to speak with an experienced criminal defense attorney regarding their situation.

Contact a New York White Collar 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, and aggressively pursues appeals on their behalf. To take immediate action to defend your rights in a white collar investigation or prosecution, do not hesitate to contact us today to schedule a confidential consultation regarding your matter.

When Do I Have a Right to an Attorney?

As residents of the United States – whether citizens or not – we enjoy the greatest legacy of constitutional rights against government overreach into our personal lives that the world has known, and this legacy is most famously embedded in our constitution’s approach to the rights of people against police and prosecutors. But, in many cases, unless a person is actually aware of what those rights are and how to utilize them, those rights can be wasted. This is especially true with regard to our constitutional right to an attorney. Below we briefly discuss what that means and how you can assert those rights.

Don’t Speak: The Fifth Amendment Right to an Attorney

We often speak of the “right to an attorney” as if it were a single right provided by the constitution, but really there are two distinct but related sources of this right in the constitution. The first is the Fifth Amendment, which states that a person has the right against self-incrimination. What that means is that you cannot be forced to give the government damaging information about yourself that could lead to a conviction.

The federal courts have more fully illustrated what that means by also ruling that a person does not need to provide any information to a government agent questioning him. In addition, the courts have ruled that, when a person tells the police that he wants to speak to an attorney before speaking to police, the police must stop all questioning.

Note that this right does not depend on the police arresting you or “reading you your rights,” and instead a person can invoke this right anytime the police are questioning him. If the police keep questioning, then they are in violation of the law and any statements provided will be inadmissible at trial.

“The Assistance of Counsel”: The Sixth Amendment Right to an Attorney

In addition to the right to a lawyer that attaches to every person’s right against self-incrimination, the Sixth Amendment of the Constitution also guarantees every person “the Assistance of Counsel for his defense” at trial. As with the Fifth Amendment, the federal courts have ruled that this constitutional guarantee means that a defendant not only has a right to an attorney at a criminal trial but also has a right to an attorney during pre-trial proceedings, starting from the time that formal proceedings are brought against the defendant, such as through an indictment.

What this means is that any statement obtained from a defendant by government agents without his attorney present is inadmissible. But, putting this together with the Fifth Amendment rights, what every person should understand is that they always have a right to an attorney when approached by government agents – regardless of whether they have been read their rights, arrested, or formally charged – and speaking to police or other agents without an attorney can result in self-incrimination.

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.  

In What Circumstances Can a Drug Conviction Be Appealed?

Whether you have been convicted in state or federal court for a drug crime, you already know that serious consequences to your liberty and future can follow, including a long prison sentence, steep fines, and lasting damage to your personal and professional reputation. Which makes appealing your drug conviction a hugely important step to consider. Not all convictions involve circumstances providing grounds for appeal, but below are a few common grounds for appealing a drug crime conviction. Consult with an experienced drug crime appeals attorney to learn more about grounds for appeal in your situation, and do not delay as appeals are often extremely time-sensitive.

Improper Police Action in Detaining or Arresting You

The police must have reasonable suspicion that you have violated the law to stop and detain you, whether on the street or in your car. If they did not, and evidence leading to your conviction was collected as a result, you may have grounds to appeal. In addition, police must have probable cause that you committed a crime before arresting you, and failure to do so can be grounds for appeal.

Failure to Provide You With an Attorney

If the police obtained statements from you leading to your conviction while in custodial interrogation (e.g. where you were detained) prior to reading you your Miranda rights, such statements may be thrown out on appeal. In addition, if you asked for a lawyer but did not receive one, or if the police questioned you without a lawyer after you were indicted, you may have grounds to appeal.

Improper Admission or Denial of Evidence

Convictions in drug crimes are often based on the nature of the evidence admitted against you, either in witness statements or physical or documentary evidence. If a judge improperly allowed the admission of evidence against you in violation of procedural rules or your constitutional rights (such as where the police violate your Fourth Amendment rights with an illegal search), this can be grounds for appeal. Likewise, an improper  failure to allow the admission of evidence that would have helped exculpate you may also be grounds for appeal.

Issues with Your Criminal Jury

A number of grounds for appeal can arise with regard to the jury that handed down your conviction. If prosecutors used improper jury selection techniques – such as selecting jurors based on race – this can be grounds for appeal. Also, if jurors engaged in misconduct by failing to follow the judge’s orders, this can also be grounds for appeal.

A Lack of Sufficient Evidence Against You

While a jury makes the determination of guilt against you, the question of your guilt should not even go to the jury if the prosecutors had not presented evidence such that it would be reasonable for a jury to find that you were guilty beyond a reasonable doubt. An appeals attorney can examine your trial record to determine whether this is the case.

Improper Judge Instructions

If the judge improperly instructed the jurors with regard to how they should analyze the facts presented at your trial in the light of the legal structures, this can be grounds for appeal.

Failure of Your Counsel at Trial

Unfortunately, many attorneys are incompetent or at least fail to provide adequate counsel at trial. If this was the case, you may have grounds for appeal.

Improper Sentence

When a judge hands down a sentence after a conviction that is not supported by the facts or the law, you can appeal the sentence.

Contact a New York Federal Drug Crime Appeals 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 and aggressively pursues appeals on their behalf. To take immediate action to appeal your drug crime conviction, do not hesitate to contact us today to schedule a confidential consultation regarding your matter.

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The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship. Prior results do not guarantee future outcomes.