Federal Silencer Charges: Suppressor Possession Defense.

26 U.S.C. § 5861(d) prohibits possession of any NFA firearm not registered in the National Firearms Registration and Transfer Record to its possessor. A suppressor is categorized as an NFA firearm under 26 U.S.C. § 5845(a)(7). The federal definition of a firearm silencer or muffler includes any device for silencing, muffling, or diminishing the report of a portable firearm, including any combination of parts designed or redesigned and intended for use in assembling or fabricating a firearm silencer or firearm muffler, and any part intended only for such assembly or fabrication. To establish unregistered possession, the government must prove that the object you possessed does not have an entry in the National Firearms Registration and Transfer Record. If this is the case, the statutory maximum sentence is ten years of federal imprisonment.

While those facts may sound overwhelming, they should not be enough to convince you to give up. We can help you build your defense by challenging the government’s case across all these requirements. With that in mind, we focus our defense strategies on the following areas:

• The evidence obtained in the search of your home, vehicle, or business
• Whether the item you possessed constitutes a suppressor
• Whether the government can prove your knowing possession of the item
• Whether the item is registered to you or anyone else
• Whether state laws govern your possession of the item
• Whether the item you possessed is an NFA firearm or subject to the National Firearms Act
• Your right to possess the item as a result of your lawful employment or prior federal registration
• Other issues related to your case

Each of these issues can present a potential avenue for challenging the government’s case. Many individuals mistakenly believe that all registration-related offenses are the same. This is not necessarily the case. We approach all of our cases with that fact in mind.

Which Facts Can Undermine the Government’s Proof of Possession?

In some cases, prosecutors may allege a theory of constructive possession rather than actual possession. A person possesses an item constructively if that person has knowledge of its presence and the power or intent to control the item. A firearm or suppressor found in a shared residence is not automatically possessed by every occupant of that residence. Instead, the government would have to prove that you personally possessed knowledge of the device and the power or intent to control the device.

Possession does not only require physical or constructive possession of a device; it requires knowing possession. If the government cannot prove that you knowingly possessed a suppressor or firearm, it will be unable to prove your possession beyond a reasonable doubt. A person’s knowledge of a device can be inferred from various factors, and many individuals are surprised to learn how much evidence can be used to establish knowledge.

Along with these issues, we can also focus on other issues that can undermine the government’s proof. In many cases, a critical part of a defense will involve showing that the government will be unable to prove its case beyond a reasonable doubt at trial.

Which Facts Can Undermine the Government’s Proof of Registration?

Once again, your attorney should begin by reviewing the government’s case to determine what evidence it has collected. This is true regardless of whether you are currently being accused of possessing an unregistered suppressor or firearm. With that in mind, your attorney should focus on other areas of your defense. If you are facing federal charges for possession of a silencer or suppressor, you need to consider whether the device you allegedly possessed meets the federal government’s statutory definition of a silencer or suppressor. The federal government classifies many types of devices as silencers or suppressors, but the items you allegedly possessed must meet that definition to support criminal charges.

Depending on the circumstances involved, a seller’s representations about the item may support a defense based on lack of knowledge. For example, if you purchased a device and the seller represented the device as a solvent trap, that representation may support a knowledge defense under the facts at hand.

Along with this, any expert testimony regarding the device should be carefully scrutinized as well. For instance, the government must establish the device is a silencer or suppressor under 26 U.S.C. § 5845(a). However, functional testing may be relevant to determining whether an item meets this statutory definition.

Spodek Law Group states its position plainly on its own front page: we owe loyalty to only you.

How Does an ATF Suppressor Investigation Become a Federal Case?

Federal offenses involving silencers or suppressors can be prosecuted under the NFA under a variety of theories. In some cases, these charges may include charges for:

• Possession
• Manufacture, transfer, or import
• Registration violations

The ATF is the federal law enforcement agency responsible for investigating these violations, and federal prosecutors from the U.S. Attorney’s Office litigate the resulting criminal cases in federal district court. When these federal agencies get involved, it typically means that the government has evidence that can be used to establish its case at trial. If you are currently under investigation, a skilled attorney can review the evidence at hand and determine if there are grounds for challenging the case before it even goes to trial.

If the ATF agents executed an unlawful search of your home, vehicle, or business, this may support a motion seeking to exclude the suppressor (or firearm) as evidence. As we discuss below, if the agents executed a search without a warrant or if the search exceeded the scope of the search warrant, that warrants your right to raise these issues as well. A warrant generally grants officers the authority to conduct searches in the specific locations described within the warrant. When conducting searches for evidence, law enforcement officers are limited to searching in areas where the items they are looking for are likely to be found. For example, searching your child’s toy box for a suppressor may exceed the scope of the warrant, which in turn may support your right to have the evidence excluded as well.

A federal investigation can precede your arrest, indictment, or any formal criminal charges. In some cases, you may be identified as the target of a federal investigation, and your attorney may be in contact with the Department of Justice during the investigative process. Evidence that may be indicative of a federal investigation includes:

• Target letters, subpoenas, or demands for information
• Interviews, informal questioning, or contact from law enforcement agents
• Execution of search warrants or search warrants at your home or office
• Letters, emails, or other correspondence referencing a federal investigation or grand jury proceedings
• Being named in a case as a defendant or “target” of a federal investigation

When Can a Suppressor Allegation Add Harsher Federal or State Exposure?

For criminal defendants, certain allegations in their indictment that have the potential to lead to substantial federal and state prison time. One of these is possession of a silencer during a “qualifying offense.” If a federal prosecutor can show possession of a silencer or suppressor in furtherance of a qualifying offense, then the prosecution may also charge the individual with a federal violation of 18 U.S.C. § 924(c). For a firearm equipped with a silencer, 18 U.S.C. § 924(c)(1)(B)(ii) imposes a minimum sentence of 30 years, and that sentence must run consecutively to any sentence imposed for the underlying crime.

Under section 924(c), a qualifying offense includes federal drug crimes (such as violations of 21 U.S.C. § 841) as well as certain forms of federal violence offenses. This includes some criminal attempts as well. If you are facing these charges, an experienced attorney can explain the relevant implications with regard to potential sentencing.

The underlying federal offenses that support criminal charges under § 924(c) require proof that the firearm was used or carried during and in relation to, or possessed in furtherance of, the underlying offense. When a person is accused of possessing a silencer or suppressor in this context, the government does not need to show that the firearm was fired. Possession in furtherance is sufficient. However, the government must also be able to prove both knowledge and possession of the silencer or suppressor at the time of the alleged offense.

While unregistered silencers or suppressors can carry severe penalties, these devices can also carry severe penalties even if they are federally registered. This is because, regardless of registration status, silencers and suppressors are considered firearms under the National Firearms Act, and this means that possession of unregistered silencers or suppressors can be the subject of a federal criminal investigation.

Similarly, unregistered silencers and suppressors can trigger additional penalties under state law. Federal registration does not override state law prohibitions on the possession of a silencer or suppressor. Because of this, individuals facing possession charges for unregistered silencers or suppressors should work with experienced attorneys to protect their rights.

Get Advice on Your Situation

If you want someone to look at the specifics of your case, Spodek Law Group handles federal criminal defense nationwide from New York and Los Angeles. The firm has been practicing since 1976 and its motto is simple: we owe loyalty to only you. Call 888 348 8028.