Federal Firearms Conspiracy Charges: Gun Crime Conspiracies.

A federal firearm conspiracy charge involving 18 U.S.C. § 371 is a prosecution for the conspiracy to commit a federal offense, or conspiracies to defraud the United States, under a statute that generally provides for criminal fines or a sentence of imprisonment. Federal prosecutors will need to prove the elements of the charged conspiracy, including an agreement and, for a conspiracy under 18 U.S.C. § 371, an overt act in furtherance; they do not need to prove that the defendants completed the substantive offense. In most cases, this means that prosecutors will need to prove the following elements beyond a reasonable doubt:

• The agreement between the defendants to conspire to commit a crime;
• The defendants’ intent to join the conspiracy, the conspiracy’s criminal intent to commit a specified offense, and the defendants’ (actual or implied) agreement to do so;
• The conspiracy’s criminal object, meaning, it must involve the conspiracy to violate a federal statute or, in other cases, a conspiracy to defraud the U.S.; and
• In many cases, that the defendants also took an “overt act” to further the conspiracy. However, the overt-act requirement is subject to the applicable statute (as discussed below).

Crucially, the underlying offense does not need to be successfully completed for the conspiracy charge to carry forward. This is what makes federal firearm conspiracy charges particularly dangerous: the federal government will only have to prove that two or more people agreed to work together to commit the offense; no successful transaction is required. The prosecution must prove each required element, even the overt-act element, beyond a reasonable doubt, and the jury must reach a unanimous decision to convict on the charge.

What makes § 371 different from 18 U.S.C. § 924(o)?

With that said, there are also specific federal statutes that establish conspiracies. 18 U.S.C. § 924(o), for example, establishes the offense of a conspiracy to violate 18 U.S.C. § 924(c), and 18 U.S.C. § 924(c) is a federal law that imposes additional penalties upon defendants in certain cases of federal gun crimes.

Regarding the overt-act requirement, the requirement is one of the elements that may apply depending on the specific federal conspiracy statute that is at play. In this case, the requirement is a statutory requirement under § 371 that has to be proven by federal prosecutors. However, the overt-act requirement is not at play under the criminal conspiracy charged under § 924(o).

How can prosecutors prove agreement without showing that every defendant possessed a gun?

In a federal firearm conspiracy case, an “agreement” can take many forms. It doesn’t need to be a formal written contract with signed terms; instead, an “agreement” can be established through various forms of circumstantial evidence. For example, circumstantial evidence in a gun trafficking case could include:

• Texts and other electronic communication, or calls between defendants;
• Surveillance showing defendants interacting with one another;
• Records (e.g., emails, shipping, store purchase) that demonstrate that certain defendants worked together to commit certain illegal gun transactions;
• Statements by co-defendants, a co-defendant who has flipped, or other witnesses;
• Video evidence; and
• Testimony from DOJ agents and other law enforcement officials.

While prosecutors may have substantial circumstantial evidence showing that multiple defendants were present together at a certain time, and that some of those defendants possessed or controlled firearms, these facts alone are not sufficient to prove a criminal conspiracy involving all of the defendants. Mere presence, association, or having a relationship is generally insufficient to prove a conspiratorial agreement. To meet the burden of proof in these cases, prosecutors will have to show that each defendant involved knowingly and voluntarily joined the conspiracy in order to pursue the unlawful agreement’s objective.

What types of evidence can federal prosecutors use to establish criminal gun conspiracy?

In federal gun trafficking and federal firearm conspiracy cases, DOJ agents and federal law enforcement officials will use many different forms of circumstantial evidence to establish defendants’ conspiracy liability.

These types of evidence include:

• Phone records, texts, emails, and other forms of electronic communication;
• Surveillance footage, including CCTV or other forms of surveillance;
• Digital evidence from electronic devices, such as social media posts or computer-based communications;
• Witness testimony from co-defendants, flipping individuals, and other individuals who may have a role in the alleged conspiracy;
• Records from phone companies, other service providers, and government records; and
• Video evidence of transactions or other activities that suggest the involvement of multiple defendants in the conspiracy.

Of course, federal prosecutors will also attempt to use all evidence available to substantiate a criminal conspiracy conviction under any applicable law.

Can federal law enforcement use intercepted electronic communications to prove conspiratorial agreement?

Yes, but only in cases where it was legally obtained. Federal law enforcement officers (and other federal agents) use intercepted electronic communication in federal gun trafficking investigations, and federal firearm conspiracy cases. However, the evidence obtained must conform with the Fourth Amendment, the Privacy Act, and other relevant laws. The Fourth Amendment protections against searches and seizures apply to communications and devices in which a person has a reasonable expectation of privacy, and warrantless searches or seizures generally lack authorization and are subject to judicial scrutiny. This is especially true when it comes to evidence obtained from cell phones, other types of devices, and computer-based communications, and electronic communications such as emails, texts, and messages on social media platforms.

The Fourth Amendment protection against unreasonable searches and seizures also applies to the use of warrants by federal law enforcement agents to execute their duties.

Generally speaking, electronic evidence can raise issues with regard to both the authority of the surveillance and the validity of the warrant. Any such questions will need to be addressed in court, as will the validity of all other types of evidence.

Can prosecutors use the doctrine of constructive possession against defendants who didn’t personally possess firearms?

Again, in many federal gun cases, prosecutors are able to introduce evidence of constructive possession. Constructive possession is a legal doctrine that treats a defendant as being in possession of a firearm if they have knowledge of its presence and have control over its location, even if they do not physically possess it. While constructive possession allows the government to introduce evidence that it may have missed when trying to prove actual possession, this requires showing that a defendant knowingly participated in the conspiracy.

While the mere presence of a firearm within the defendant’s reach may be sufficient to establish constructive possession in some cases, typically, proximity does not establish constructive possession.

If federal agents are at your door, the firm's advice is the same as every defense lawyer's: say you want your lawyer, then stop talking.

When can a federal firearm conspiracy charge be dismissed, reduced, or otherwise defeated?

Like all federal firearm charges, those involving federal firearms conspiracy must be taken seriously, and the consequences can be severe in some cases. However, in many cases, federal prosecutors will not be able to meet the burden of proof required to pursue the federal government’s theory of prosecution. This is especially true in federal firearm conspiracy cases, in which the government will need to prove the existence of a conspiratorial agreement and, where required, an overt act sufficient to meet the elements of the charged conspiracy. This means, for example, that if evidence is sufficient to prove that several individuals were present together, this does not necessarily prove the existence of a conspiracy.

With that said, a defendant’s strategy may involve seeking to have a federal firearm conspiracy charge dismissed or reduced. The decision to pursue a conspiracy charge rests with the Department of Justice and federal prosecutors. Once the indictment has been filed, defense attorneys can seek a dismissal of a federal firearm conspiracy charge in a variety of circumstances. For example, if the prosecution lacks sufficient evidence to support the conspiracy charge, the defense may seek dismissal of that charge.

Another common way for a federal firearm conspiracy charge to be dismissed is if the federal government violates a defendant’s constitutional rights. This may include violating the defendant’s Fourth Amendment right to free search and seizure or any other constitutional privilege. If a defendant’s constitutional rights have been violated in a criminal gun case, there may be grounds for the dismissal of criminal charges, as well as potential grounds for seeking the suppression of illegally obtained evidence.

What are common defenses to federal firearm conspiracy charges?

Defending against a federal firearm conspiracy charge involves a variety of strategies, including:

• Challenging the existence of a conspiratorial agreement;
• Challenging the extent of the agreement (whether the conspiracy’s object was to commit a federal offense);
• Challenging the defendant’s knowledge, intent, or voluntary participation;
• Challenging the evidence the government is relying on to establish the elements of a criminal conspiracy;
• Challenging the conduct allegedly underlying the conspiracy;
• Challenging evidence that the government obtained in violation of the Fourth Amendment or other law or regulation; and
• Withdrawal from the conspiracy (see below).

Can a defendant use withdrawal from the conspiracy as a defense to a criminal conspiracy charge?

Withdrawal is an affirmative defense to a criminal conspiracy charge under federal law. Under the common-law withdrawal doctrine, which requires an affirmative act of withdrawal, federal conspiracy liability can be avoided in some circumstances if the defendant can show that they withdrew from the alleged conspiracy before any overt acts were taken. The withdrawal must involve affirmative conduct, and it must indicate that the defendant withdrew with the intent to leave the conspiracy behind, and make it clear to other members that they were no longer part of it.

Generally, once a criminal conspiracy has been carried out to completion, withdrawal is no longer an option. This means that, in many cases, if the conspiracy is already complete or if an overt act has already been committed that advances the conspiracy, withdrawal will not be a viable defense to criminal liability. However, if the criminal act has not yet been completed and an overt act has not already been committed, then withdrawal will be an option.

Which penalties and detention consequences can follow a federal firearm conspiracy conviction?

The potential sentencing exposure and detention consequences following a federal firearm conspiracy conviction depends on the specific criminal statutes and provisions that are involved. Generally, in criminal cases involving 18 U.S.C. § 371 and 18 U.S.C. § 924(o), penalties can include:

• Up to Five Years of Imprisonment: Under 18 U.S.C. § 371, any conspirator convicted of conspiring to commit a felony-object offense can face up to five years of imprisonment.
• Up to Twenty Years of Imprisonment: Under 18 U.S.C. § 924(o), a participant in a covered conspiracy who is convicted may face up to twenty years of imprisonment.
• Up to Life in Prison: Under 18 U.S.C. § 924(o), if the underlying conspiracy’s object involves possession or use of specified dangerous firearms (i.e., automatic weapons or destructive devices), federal courts may authorize a sentence of life in prison.
• Mandatory Consecutive Sentencing: In addition to the penalties discussed above, 18 U.S.C. § 924(c) requires that convictions involving possession of firearms by means of drug or violent crime offenses result in additional years of mandatory sentencing. Sentences under Section 924(c) are imposed consecutively to any underlying drug or violent-crime sentence. This means a defendant must serve their Section 924(c) sentence after they have successfully completed their other underlying sentence.
• Five, Seven, or Ten Years of Additional Imprisonment: Under 18 U.S.C. § 924(c), if a defendant is found to possess a firearm in furtherance of a crime of violence, then a five-year federal sentence is mandatory. If a defendant is found to have “brandished” a firearm, then a seven-year federal sentence is mandatory. If a defendant is found to have “discharged” a firearm, then a ten-year federal sentence is mandatory.
• Mandatory Twenty-Five-Year Federal Sentence: A violation of 18 U.S.C. § 924(c) committed after a prior conviction under that subsection has become final carries a mandatory minimum sentence of twenty-five years of imprisonment.

Under the Bail Reform Act and the Due Process Clause, federal judges have broad discretion to order pretrial detention; however, any pretrial detention must be narrowly tailored. An individual’s right to not be detained will include the right to challenge continued detention and a judicial obligation to hold a hearing to make an informed decision on detention. The federal government is also obligated to show that detention is necessary for public safety or to prevent flight.

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