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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 to Do If You Are Facing a Money Laundering Investigation

According to experts, around $5 trillion is money laundered around the world each year, and law enforcement authorities recover only a small fraction of that money. But, in spite of this gap – and quite possibly because of it – U.S. law enforcement authorities take an extremely hard line in pursuing the money laundering investigations that do end up on their radar, and it is often tertiary and unsuspecting individuals and entities that find themselves in the crosshairs of a money laundering investigation. While we might think of large banks and other financial institutions when we think of money laundering, it is common for business partners, service providers, art and antique dealers, auction houses, trustees, directors and board members, and all types of financial service providers to get caught up in a money laundering investigation. It is certainly frightening to get a visit, call, or other inquiry from a federal agent or agency – or even to hear rumors of those close to you being approached – but what you do next can have enormous implications for your future.

Understand That Criminal Liability Can Exist Even If You Were “Ignorant”

Again, federal law enforcement takes a very aggressive approach to policing money laundering, and they do this for a number of reasons. One is that it is often more feasible for law enforcement to collect evidence of financial crimes than the crimes that produced the money being laundered, such as international trafficking. Law enforcement can also approach those who may played a secondary and/or unwitting role in the money laundering and use methods to intimidate them and their businesses that might lead them to the persons committing the crimes from which the money profits flowed.

Unlike with many other criminal laws, prosecutors do not have to show that a person willfully (in other words, intentionally) violated federal laws on money laundering in order to secure a conviction. Using the concept of “willful blindness,” prosecutors can successfully argue that a person is guilty of money laundering when he makes efforts to conceal the profits of criminal activity even if he did not know the money was the product of illegal activity but had strong reason to suspect it was. For example, an art dealer facilitating transactions on behalf of a wealthy drug dealer to conceal profits might be charged with money laundering if it can be shown there was a reason to suspect the nature of the funds.

Furthermore, anyone who merely encourages or assists such a transaction (e.g. service providers) could potentially be liable even if he or she was not a primary party to the transaction.

Do Not Wait to Speak With a Criminal Defense Attorney

Does this mean every person connected with a transaction involving money derived from illegal activity is criminally liable? Absolutely not, but it does mean that prosecutors can find a way to pin criminal liability on persons in ways they may well not have imagined. Thus, it is a mistake to speak with law enforcement – or any other non-attorney for that matter (any conversation you have not protected by a privilege may be used against you) – without an attorney under the impression that you have nothing to worry about.

By speaking with a criminal defense attorney experienced in federal investigations at the first sign of a money laundering investigation, you can take steps to determine what your potential criminal liability might be (which may be none, but better to find that out in a confidential consultation with an attorney who represents only your interests), and work with that attorney in communicating with law enforcement to reach your best possible outcome, which can include a dropped investigation or favorable agreement.

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 money laundering, do not hesitate to contact us today to schedule a confidential consultation regarding your matter.  

FAQ: Tax Fraud Penalties

Can I be charged with a crime if my taxes are done incorrectly?

Yes. Not only can the IRS can hand down civil penalties for improperly doing your taxes, federal prosecutors can charge you with a tax-related crime if you fail to file a tax return, provide false or fraudulent statements to the IRS, or willfully evade paying your full share of taxes.

What are the criminal penalties for failing to file a tax return?

You face up to one year in prison and up to $100,000 in fines (or up to $200,000 in the case of a corporation). These penalties also apply when a taxpayer fails to pay taxes on time or fails to supply information to the IRS.

What are the criminal penalties for making fraudulent or false statements to the IRS?

You face up to three years in prison and up to $250,000 in fines (or up to $500,000 in the case of a corporation). Making fraudulent or false statements can apply to statements made in your tax return or to government officials.

What are the criminal penalties for tax evasion?

You face up to five years in prison and up to $250,000 in fines (or up to $500,000 in the case of a corporation).

What is the difference between tax evasion and tax avoidance?

Tax avoidance is the legal process of taking advantage of strategies allowable by the tax code to reduce your taxes. Tax avoidance is therefore legal. Tax evasion is using strategies not allowed by the tax code to reduce or eliminate the taxes you pay. Tax evasion is illegal.

What are common methods of tax evasion that can result in criminal penalties?

  • Failing to report income from a side job
  • Failing to report income from rentals
  • Failing to report income paid in cash
  • Overstating deductions that do not exist, such as charitable donations not actually made

What if a person makes a mistake on their tax returns?

If you negligently make a mistake, then you still may owe civil penalties, but the government cannot convict you of a crime unless it was willful on your part. The standard of proof in showing willfulness is guilt beyond a reasonable doubt.

Can I be charged with a crime for assisting another person or entity in tax fraud?

Yes, as with most crimes, you can be charged with a tax-related crime as an accomplice if you assisted and/or encouraged another person to commit tax fraud.

Contact a New York Criminal Defense Attorney Today

The Henry Law Firm PLLC provides criminal defense to individuals and businesses throughout New York. Contact us today to schedule a confidential consultation regarding your matter.  

Do I Need My Own Lawyer in an SEC Investigation?

If your employer is being investigated by the SEC, then you likely have some questions about the SEC investigation process but may not feel comfortable asking them of your supervisor or co-workers. This is understandable, as an SEC investigation can mean significant civil penalties such as fines, permanent career and reputational damage, or loss of a job. One of the most common questions employees of a company under SEC investigation ask is whether they need their own lawyer, and they often trip themselves up by asking the wrong people to answer that question.

Your Company’s Attorneys Cannot Tell Whether You Need a Lawyer

When an employee learns that an SEC investigation is occurring, it is common for the employee to ask the HR director, the General Counsel, or even an outside law firm representing the company whether the employee needs his or her own lawyer. First, it is critical to understand that all of those people are there to serve the interests of the company, not you the employee.  Thus, it is not their job to be concerned with whether you would be better off from a legal perspective by having your own attorney.

In addition, they might not have any idea what your role in potential SEC violations were and thus whether it would serve your interests to have your own attorney or not. If company attorneys are speaking with you about events related to a potential SEC investigation (also note that the company attorneys are likely not under any obligation to tell you whether an investigation is indeed occurring or not), there is a good chance they know less than you do about potential violations at that point and are indeed speaking with you to gather that information, thus making them even less likely to be able to answer that question accurately.

The Company Attorneys Represent the Company, Not You

Beyond the issue of presenting the question of whether you need your own attorney to company lawyers, regardless of what they might say to you, the fact of the matter is that those attorneys represent the company and not you. Simply put, their allegiance and duties are directed towards representing the company’s interests, and that will always be their overriding mission.

Does this mean they are out to get you and will ultimately throw you under the proverbial bus in an SEC investigation? Not necessarily, and the company (and by extension, its attorneys) may have a strong interest in defending, so long as your interests are aligned with those of the company.

But, when push comes to shove, it is the case that they are not there to defend your interests and formulate legal strategies to protect your reputation, career, and future. In many cases, companies under SEC or other federal investigation can curry favor with law enforcement by showing that they are taking a hard line against employees in the company who have violated laws, and so penalizing and/or terminating an employee can be an action a company takes on the advice of its attorneys to reach a favorable outcome with the SEC. And this outcome may be reached on the basis of information you as the soon-to-be terminated employee provide to the company and its attorneys under the mistaken impression that doing so would help your interests.

Contact a New York White Collar Defense Attorney Today

Thus, if you have reason to suspect you face negative consequences in an SEC investigation of your employer, it is wise to reach out to your own white collar investigations attorney to discuss your options in a confidential setting. The Henry Law Firm PLLC provides white collar defense in SEC investigations to individuals and businesses throughout New York. 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.