Federal Felon in Possession of a Firearm
| North Dakota & Minnesota |
Facing a federal felon in possession of a firearm charge in North Dakota or Minnesota can be a daunting and overwhelming experience.
If you are currently facing these charges, it is crucial that you understand the gravity of the situation and take immediate action to protect your rights and future.
This article will provide an in-depth look at the federal laws surrounding illegal firearm possession, the potential consequences of a conviction, and the importance of hiring an experienced attorney to defend your case. Whether you are unsure of your rights, or are simply looking for more information on how to navigate the legal system, this post will provide valuable insights and guidance – particularly for those facing federal charges in North Dakota or Minnesota.
Federal Felon in Possession of a Firearm
Individuals who are convicted felons, whether at the state or federal level, lose their rights to be in possession of a firearm or ammunition. Therefor this charge is a fairly straight forward one: if you are a felon, and were allegedly found in “possession” of a firearm, you will likely be charged with this crime.
The federal law that governs this offense is 18 U.S.C. § 922(g), which states that it is illegal for any person who has been convicted of a crime punishable by imprisonment for a term exceeding 1 year, to possess any firearms or ammunition.
The federal government has jurisdiction over this crime, meaning that it will be prosecuted by the U.S. Attorney's Office in Fargo or Bismarck, North Dakota or Minneapolis, Minnesota, and not state prosecutors.
If you’re wondering why this is a federal charge and not a state charge, the answer is both simple and arbitrary. It’s because Congress enacted a law in 1968 called the Gun Control Act of 1968, which gives the federal government the authority to regulate firearms and ammunition. The purpose of this law is to keep firearms out of the hands of individuals who have been convicted of certain crimes and are considered a danger to society.
It's worth noting that even though the federal government has jurisdiction over this crime, states may also have their own laws that prohibit convicted felons from possessing firearms, and they can also prosecute people under these state laws.
Indeed, both North Dakota and Minnesota have state laws on the books that prohibit felons from possessing firearms.
In Minnesota, it is illegal for a person convicted of a crime of violence or a controlled substance crime to possess a firearm. Additionally, the state has a law that prohibits certain individuals who have been convicted of domestic violence offenses from possessing firearms.
In North Dakota, it is illegal for a person convicted of a felony to possess a firearm, unless their civil rights have been restored by the Governor. Additionally, certain individuals who have been convicted of domestic violence offenses are also prohibited from possessing firearms.
What You Need to Know About Federal Felon in Possession Charges
As experienced criminal defense attorneys, we have represented countless clients who have been charged with felon in possession of a firearm offenses. Over the years, we have encountered several misconceptions about these types of charges that we address in detail below:
Many individuals believe that they can only be charged under federal law if they crossed state lines with the firearm. However, this is not the case. The 18 U.S.C. § 922(g) applies to anyone who has been convicted of a felony and is found in possession of a firearm, regardless of where the person currently resides or where the firearm is located.
People mistakenly believe that an individual can only be charged with felon in possession if they knew they were in possession of the firearm. If you are a felon, and were found in possession of a firearm, you will most likely be charged with this crime. That does not mean that you will be found guilty, however. To be found guilty, the prosecution must prove that the individual knew they were in possession of the firearm.
Some individuals believe that they cannot be charged if the firearm is not operable. However, this is not necessarily true. The law applies to any weapon that can be defined as a firearm, regardless of its condition.
Another misunderstanding is that a person can only be charged if they used the firearm in the commission of a crime. This, too, is not the case. A person can be charged for being a felon in possession of a firearm even if they did not use the firearm in the commission of a crime.
Many people also think that having their rights restored guarantees them the ability to own a firearm. However, this is not always (or even often) the case, as you can get your state gun rights restored but still be prohibited on the federal level from possessing a gun. Federal laws always trump state laws, so in this regard, whatever the federal government says, goes.
Finally, under federal law, it is illegal for a convicted felon to simply be around a firearm, even if it is not theirs. Examples of this would be if a felon is found to be in a residence or vehicle where there is a firearm in close proximity to them - this is called “constructive possession.”
Can I be Charged Both Federally and on the state level?
Yes, the same felon in possession crime may be prosecuted in both state and federal court. “Dual sovereignty” or “dual prosecution” are terms used to describe this. In other words, under the laws of both the state and the federal government, a person may be prosecuted for the same criminal activity.
However, a person will not face punishment twice for the same offense, even if they are accused by both the state and the federal governments. That’s because the U.S. Constitution's 5th Amendment includes the Double Jeopardy Clause, which prohibits a person from being tried twice for the same crime. This means that if a person is found guilty or pleads guilty to a crime in state court, they cannot be tried again for the same crime in federal court, and vice versa. Notably—and in our opinion perversely— if they are found not guilty in state court, then they can be tried again for the same crime in federal court, and vice versa.
The decision of whether to charge someone in state or federal court is usually made by the prosecutor. They will consider various factors such as the severity of the crime, the defendant's criminal history, and the resources available to them in making the decision. For example, if the federal government has more resources and expertise to handle a certain case, they may choose to take on the case, even though the state has the power to do so, too.
Felon in Possession vs. 924(c)
The charge referred to as a "stand-alone charge" is the charge of Felon in Possession (FIP), which is a federal offense that prohibits individuals who have been convicted of a felony from possessing firearms or ammunition. This charge is separate from the charge of 18 U.S.C. § 924(c), which is a separate federal offense that involves the use or possession of a firearm during the commission of another crime, such as robbery or drug trafficking.
In contrast to a 924(c) charge, the FIP charge does not require the commission of another crime, as mere possession of a firearm by a convicted felon is enough to result in this charge. However, it is important to note that a defendant may face both a FIP charge and a 924(c) charge if they are found to have both illegally possessed a firearm and also used it during the commission of another crime.
If a person is convicted under 924(c), they will face a mandatory minimum sentence of 5, 7, or 10 years in addition to any sentence imposed for the underlying offense.
This mandatory enhacement may increase even more if the firearm in question is a machine gun or if the defendant has a prior conviction for a similar offense.
Elements of Felon in Possession Charges
To prove that an individual is guilty of the federal crime of being a felon in possession of a firearm, the government must prove the following elements beyond a reasonable doubt:
The individual is a convicted felon: This means that the individual has been convicted of a crime punishable by imprisonment for a term exceeding 1 year.
The individual knowingly possessed a firearm: The government must prove that the individual was aware of the presence of the firearm and that they had the ability to exercise control over it.
This refers to the requirement that the individual must have been aware of the presence of the firearm and had the ability to control it. This element is often broken down to either "actual possession" or "constructive possession."
Actual possession refers to when an individual has physical control over the firearm, such as when it is on their person or in their immediate vicinity (like in their backpack). Constructive possession, on the other hand, refers to when an individual has the power and intent to control a firearm, even if it is not physically in their immediate possession. For example, if a firearm is found in the glovebox of a car that an individual is driving, they may be considered to be in constructive possession of the firearm even if they are not physically holding it.
The government must prove beyond a reasonable doubt that the individual was aware of the presence of the firearm and had the ability to “exercise dominion and control over it.” In some cases, mere proximity to a firearm is not enough to establish possession. However, there usually must be additional evidence, such as the individual's actions or statements, that demonstrate their knowledge and control over the firearm.
The firearm was in or affecting interstate commerce: The phrase "in or affecting interstate commerce," refers to the requirement that the firearm had some connection to commerce between states. In other words, it had to have crossed state lines, or otherwise have been involved in some type of commercial transaction, in order to fall under federal jurisdiction.
This requirement is based on the Commerce Clause of the U.S. Constitution, which gives the federal government the power to regulate commerce between states. By extending federal jurisdiction to firearms that have some connection to interstate commerce, the government is able to enforce federal laws aimed at reducing firearms-related crime and violence.
In practical terms, this element is often easily satisfied, as most firearms are manufactured and sold across state lines, and thus have a clear connection to interstate commerce. However, it is important to note that this element is a critical component of the crime of being a felon in possession of a firearm, and the government must prove it beyond a reasonable doubt in order to secure a conviction.
It is important to note that these elements are specific to the federal law regarding felons in possession of firearms. Individual states may have their own laws and elements that must be proved for a similar crime. Additionally, the specifics of each case may impact the elements that must be proven, and it is always recommended to consult with an attorney to understand the full legal implications of a particular case.
Case Story: Winning a Federal Felon in Possession Case
Felon in Possession Penalties
The penalty for a felon in possession (FIP) charge depends on the type of gun you are found with, whether the gun was stolen, and your criminal history.
In laymen’s terms: the scarier the gun, the higher penalty you will likely face. There are other aggravating factors that can also contribute to a larger penalty. For instance, if the gun was stolen or if the serial number has been filed off, that results in a longer prison sentence.
Likewise, if you have significant criminal history, you will likely face a longer punishment.
How much Time will I face for a Felon in Possession Charge?
Normally, a standard federal felon in possession conviction results in 3-6 years of prison time. The statutory maximum, meaning the most time you could do, is 10 years.
In our extensive experience practicing in the District of North Dakota, most clients we see are sentenced to 3-4 years in prison for a stand-alone FIP conviction.
Defense Strategies
As your criminal defense attorney, there are a number of defense strategies that can be employed to fight the federal charge of felon in possession.
One such strategy is to challenge the government's evidence and question the legality of the search that led to the discovery of the firearm. This is the exact strategy we used in the felon in possession case story above.
If the government obtained the firearm through an illegal search, the evidence may be suppressed, making it difficult (and often impossible) for the prosecution to prove their case. Additionally, if the defendant was not aware that the firearm was in their possession, this could be used as a defense.
This defense is particularly effective if the defendant can prove that the firearm belonged to someone else or that they had no knowledge of its presence.
Other defense strategies include challenging the government's ability to prove that the defendant was a convicted felon, as well as arguing that the defendant's possession of the firearm was legal under certain state or federal laws. Ultimately, the best defense strategy will depend on the specific circumstances of the case, and it is important to work closely with an experienced criminal defense attorney to determine the most effective course of action.
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