Gun Trafficking and the Southwest Border
Prosecution of Firearms Trafficking Cases and Related Statutes
Currently, U.S. firearm laws govern the possession and transfer of
firearms and create penalties
for the violation of such laws. However, as will be illustrated
below, because there are no laws
that specifically punish firearms trafficking or conspiracy to
traffic firearms, law enforcement and
prosecutors must work with existing federal statutes to tackle
illegal gun trafficking. The
following are examples from the southwest border region that are
demonstrative of the kinds of
gun trafficking cases being prosecuted, and the federal statutes
that are often implicated in such
cases.106 These particular examples come from the Southern District
of Texas, though other U.S.
Attorney Offices such as the U.S. Attorney’s Office for the District
of Arizona and the Southern
District of California handle similar cases that involve firearms
trafficking.107
Overall, from these cases, we can see that evidence from long
investigations generally leads to
the conclusion that persons are engaged in firearms trafficking. In
these instances, defendants are
often prosecuted and convicted under provisions of statutes like the
GCA that make it unlawful
for certain persons to be in possession of firearms; govern the
transaction process of obtaining
firearms (e.g., straw purchases); and contain penalties for the use
of a firearm in a crime of
violence or drug trafficking crime, or penalties for knowingly or
fraudulently smuggling goods
that would be contrary to U.S. law and regulation.
McAllen, Texas—Possession and Receiving of Illegal Firearms
In February 2008, the U.S. Attorney’s Office for the Southern
District of Texas (USAO-SDTex)
released information that four men had been arrested by ATF agents
in connection with a 10-
month long investigation that fell under ATF’s Project Gunrunner.108
Collectively, the defendants
were charged with 26 counts of being in violation of federal
firearms statutes. From the GCA, the
statutes at issue in the indictment included:
• 18 U.S.C. §§ 924(c)(1)(B)(i)-(ii), which imposes not more than 30
years’
imprisonment if the firearm possessed by the person—who is convicted
under the
firearm statute—is a short-barreled rifle, short-barreled shotgun,
machinegun,
destructive device, or that such a firearm has a silencer or
muffler;
• 18 U.S.C. § 922(o), which makes it unlawful for any person to
transfer or be in
possession of a machinegun; and
• 18 U.S.C. § 922(g)(1), which makes it unlawful for any person, who
has been
convicted in any court of a crime punishable by more than one year
of
imprisonment, “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.”
These offenses are punishable by a fine and/or not more than 10
years’ imprisonment.109 Statutes
from the NFA that were at issue in this case included (1) 26 U.S.C.
§ 5861(d), which makes it
unlawful for any person to receive or possess a firearm that is not
registered to him in the
National Firearms Registration and Transfer Record; and (2) 26 U.S.C.
§ 5861(e), which makes it
unlawful to transfer a firearm in violation of the requirements of
the National Firearms Act. These
offenses are punishable by a fine of not more than $10,000 and/or
imprisonment of not more than
10 years.110
Brownsville, Texas—Conspiracy to Make False Statements and Straw
Purchases
In October 2008, the USAO-SDTex announced that one defendant, who
had already pleaded
guilty to charges against him, was sentenced to prison for
trafficking in firearms.111 The defendant
pleaded guilty to conspiracy to make false statements in firearms
transactions. This defendant
paid four other persons to make firearms purchases on his behalf
(a.k.a., “straw purchases”).
While the judge concluded that the defendant was the organizer in
this case and engaged in
trafficking firearms to Mexico, this lead defendant was prosecuted
under two provisions, which
together made up the charge against him. They were: (1) 18 U.S.C. §
371, which makes it an
offense to engage in a conspiracy to commit any offense or defraud
the United States, and (2)18
U.S.C. § 924(a)(1)(A), which makes it unlawful for a person to
“knowingly make any false
statement or representation with respect to the information required
... to be kept in the records of
a person licensed under this chapter.” Each of these offenses
carries a penalty of not more than
five years’ imprisonment and/or a fine. In this case, the defendant,
who organized these
transactions, was sentenced to 46 months in prison to be followed by
a three year term of
supervised release. The four other co-defendants, who made the
purchases on behalf of the lead
defendant, were each prosecuted and sentenced under 18 U.S.C. §
924(a)(1)(A) for making false
statements on the forms that are required to be filled out in
connection with a firearms purchase.
The sentences of these four co-defendants range from probation and
home confinement to time in
federal prison.112
Victoria, Texas—Smuggling of Firearms
In December 2008, the USAO-SDTex along with the ATF announced that
one individual, as a
result of an investigation through Project Gunrunner, pleaded guilty
to eight counts of various
federal firearms statutes.113 According to the USAO’s release, the
individual had purchased more
than 500 firearms over the last several years and smuggled them into
Mexico for resale. The
ATF’s investigation revealed that the individual would purchase
specific firearms for customers in
Mexico by placing orders with numerous firearm dealers throughout
Texas, and listing himself as
the “actual buyer.” Additionally, the individual would file a Texas
tax exemption form indicating
the firearms were for resale in order to avoid payment of sales
taxes on his purchase. This
individual would then smuggle the firearms, via a compartment in the
motor home he used, to
make deliveries to various locations in central Mexico.114
The firearms statutes implicated in this case of firearms
trafficking to Mexico were: (1) 18 U.S.C.
§ 924(a)(1)(A) and 18 U.S.C. § 924(a)(2), each of which provides a
fine and/or not more than 5
or 10 years’ imprisonment, respectively, to those who knowingly make
a false statement or
representation with respect to information required or in connection
with the sale of a firearm
from a licensed dealer; (2) 18 U.S.C. § 554, which carries a penalty
of not more than 10 years in
prison and/or a fine if a person “fraudulently or knowingly exports
... or attempts to export ...
from the United States any merchandise, article, or object contrary
to any law or regulation of the
United States, or receives, conceals, buys, sells, or in any manner
facilitates the transportation,
concealment, or sale of such merchandise ... prior to [its]
exportation knowing [it] to be intended
for exportation contrary to any law or regulation of the United
States”;115 (3) 18 U.S.C. § 924(b),
which imposes a fine and/or imprisonment for not more than 10 years
on any person who “ships,
transports, or receives a firearm or ammunition in interstate or
foreign commerce” and who either
has “intent to commit therewith an offense punishable by
imprisonment for a term exceeding one
year,” or has “knowledge or reasonable cause to believe that an
offense punishable by
imprisonment for a term exceeding one year is to be committed
therewith”; and (4) 18 U.S.C. §
924(a)(1)(D), which imposes a fine and/or imprisonment of not more
than five years for any other
willful violation of the provisions (in this case 18 U.S.C. §
922(a)(1)(A)-dealing in firearms
without a license). All of these provisions carry a maximum fine of
$250,000 and a maximum of
three years of supervised release following completion of the
sentence imposed.
Endnotes
106 Prosecuting cases that involve gun trafficking
also occurs on the state level. For example, the Arizona Attorney
General’s Office charged one man with one count of fraudulent
schemes and artifices, the commission of which carries
a maximum 12.5 year sentence. The defendant was linked to a huge
stash of firearms, including two .50-caliber rifles—
all of which were associated with the drug-war violence in Juarez,
Mexico. See Sean Holstege and Lindsey Collom,
“Key suspect arrested in gunrunning,” The Arizona Republic, April 4,
2008, at 1.
107 E.g., in June 2009, the U.S. Attorney’s Office
for the Southern District of California announced that one man was
sentenced to serve 211 months in prison for drug possession with
intent to distribute and carrying a firearm in relation
to a drug trafficking crime (18 U.S.C. § 924(c)). In December 2008,
the U.S. Attorney’s Office for the District of
Arizona announced that one man received an enhanced sentence for
being an armed career criminal found guilty of
being a felon in possession of a firearm (18 U.S.C. § 922(g)). The
defendant was one of several individuals investigated
by Phoenix law enforcement and ATF agents for illegal firearms and
narcotics trafficking in central Phoenix.
108 U.S. Department of Justice, U.S. Attorney’s
Office, Southern District of Texas, “Starr County Men Charged With
Selling Machine Guns, Silencers, and Other Firearms,” press release,
Feb. 7, 2008. A fifth man was still at large at the
time of the release.
109 18 U.S.C. § 924(a)(2).
110 26 U.S.C. § 5871.
111 U.S. Department of Justice, U.S. Attorney’s
Office, Southern District of Texas, “Brownsville Man Sentenced to
Prison for Firearms Trafficking,” press release, Oct. 2, 2008.
112 One of the co-defendants was also sentenced for
conspiracy and making false statements, but received a less severe
sentence then his co-defendants of 6 months in federal prison and 4
months in a community corrections center (halfway
house).
113 U.S. Department of Justice, U.S. Attorney’s
Office, Southern District of Texas, “Victoria Resident Pleads Guilty
to
Numerous Federal Firearms Violations,” press release, Dec. 31, 2008.
114 Ibid. According to the USAO, a search of the
motor home resulted in the discovery and seizure of ammunition, gun
orders, Mexican immigration documents, and other evidence of
firearms trafficking.
115 This defendant’s exporting of firearms without a
license was contrary to the AECA.
Back to
Contents |
