Gun Trafficking and the Southwest Border
U.S. Law Enforcement Challenges and Southwest Border Gun Trafficking
It is important to first note the subtle difference between
trafficking and smuggling as it relates to
firearms. Generally, trafficking occurs when a commercial item is
diverted out of the lawful chain
of commerce into illegal markets for unlawful purposes whereas
smuggling, arguably a subset of
trafficking, occurs when an item, legal or illegal, is imported or
exported in violation of the
law.116 It is worth noting that under current law there is a
specific provision in the GCA that
makes it illegal for any person to smuggle firearms into the United
States, intending to engage in
or promote conduct that violates state or federal drug laws, or that
constitutes a crime of violence.
Doing so is punishable by not more than 10 years’ imprisonment
and/or fine.117 However, there is
no corresponding provision that specifically prohibits smuggling
firearms out of the United States
for the purposes of drug trafficking and related violent crime, even
though laws like the AECA
and EAR regulate the exportation of firearms. Instead, those caught
smuggling firearms out of the
United States are typically charged under a general smuggling
provision as seen in the case that
occurred in Victoria, Texas.
Persons intending to smuggle trafficked firearms across the border
often carry only a small
number of firearms at a time under the guise that those firearms are
their personal property.
Moreover, if those persons are not otherwise prohibited from
possessing a firearm, it may be
extremely difficult to establish a criminal offense until they
actually cross the border.
Consequently, one of the challenges for investigators and
prosecutors is that trafficking often
involves a smaller quantity of guns so traffickers can avoid
detection of their illicit activities or, if
caught with a small quantity of guns, have a more believable claim
that the guns in their
possession are personal firearms. These circumstances arguably
underscore the need for the ATF
to follow up trafficking leads as expeditiously as possible in order
to prevent wider trafficking
schemes from expanding and proliferating.
The examples highlighted from the U.S. Attorney’s Office illustrate
that because there are no laws
specifically devoted to targeting wider firearms trafficking
schemes, investigators and prosecutors
work with criminal provisions in the GCA and NFA to charge gun
traffickers with multiple
violations. In many cases, gun traffickers are prosecuted under
various provisions of these
statutes; such provisions include prohibitions against dealing
firearms without a federal license,118
or federally licensed dealers dealing off the books.119 It is also
unlawful for any person “to sell or
otherwise dispose” of a firearm to another they “know or have
reasonable cause to believe” is a
person who is prohibited from possessing firearms under federal
law.120 Likewise, there are
provisions that make it unlawful to make false statements on the
forms necessary to complete a
firearms transaction with an FFL.121 Thus, persons who engage in
straw purchases could be
prosecuted if they are found to be lying on the ATF Form or
transferring a firearm to a person
whom they know or have reasonable cause to believe is prohibited
from possessing a firearm
under federal law. There is not, however, a provision that makes it
specifically unlawful for a
person, who, knowing they are a person prohibited from possessing
firearms, to direct another
person to buy a firearm for them, for example. In sum, the existing
statutory scheme does not
include firearm specific federal provisions that would cover the
wider criminal conspiracies often
involved in gun trafficking schemes that include multiple straw
purchases and other federal
violations. Such provisions would arguably assist law enforcement by
allowing them to cast a
wider net to investigate and prosecute those who are engaged early
on in gun trafficking schemes.
The recent GAO report on firearms trafficking discusses some of the
federal firearms laws that
may present challenges to U.S. efforts to combat arms trafficking to
Mexico.122 The report
identifies three key challenges related to (1) restrictions on
collecting and reporting information
on firearms purchases, (2) a lack of required background checks for
private firearms sales, and (3)
limitations on reporting requirements for multiple sales.
Currently, the ATF relies heavily on its firearms tracing program to
identify individuals involved
in firearms trafficking schemes and to detect trafficking patterns.
Arguably, however, ATF’s
ability to trace firearms is limited, because the U.S. government is
prohibited by law from
maintaining a national registry of firearms.123 According to the GAO
report, key law enforcement
officials have stated that “restrictions on establishing a federal
firearms registry can lengthen the
time and resources required by ATF to complete a crime gun trace and
can limit the success of
some traces.”124 Furthermore, the report mentioned that secondary,
or used, firearms are
commonly trafficked to Mexico. Officials noted that, “while ATF may
be able to trace a firearm
to the first retail purchaser, it generally has no knowledge of any
secondhand firearms purchases
from gun shows or pawnshops ... without conducting further
investigation” because federal law
currently “permits the private transfer of certain firearms from one
unlicensed individual to
another [also described as “secondary transactions”] in places such
as at gun shows, without
requiring any record ... be maintained by the unlicensed
individuals, an FFL, or other law
enforcement authority.”
Related to private transactions, the GAO report highlighted that the
lack of required background
checks for private firearms sales may also be problematic in efforts
to combat gun trafficking.125
Pursuant to the Brady Handgun Violence Prevention Act, background
checks are mandatory for
all nonlicensed persons seeking to obtain firearms from FFLs,
subject to certain exceptions.126
The private sales of firearms from one individual to another,
including private sales at gun shows,
are not subject to the background check requirement, and
consequently do not require the seller to
determine whether the purchaser is a felon or other prohibited
person, such as an illegal alien.127
Last, the GAO report pointed out that federal law requires FFLs to
report multiple sales to the
Attorney General whenever they transfer more than one handgun to any
nonlicensee within 5
consecutive business days (See above section “Multiple Handgun Sales
Reports”). ATF officials
noted that this federal reporting requirement “has provided critical
leads for some investigations
of arms trafficking” and “helps expedite the time required by ATF to
complete a crime gun
trace.”128 A similar reporting requirement, if enacted, for multiple
long gun sales—particularly for
rifles and shotguns capable of accepting large capacity ammunition
feeding devices129—would
arguably provide ATF and other federal law enforcement with early
warning of potential firearms
trafficking schemes as 27% of firearms recovered in Mexico and
traced from FY2004 to FY2008
were long guns.130 Absent is information regarding how many of those
long guns were part of a
multiple sales purchase.
Although the GAO report underscored these three areas of federal law
as potential hindrances to
law enforcement’s ability to combat firearms trafficking, Congress
has passed laws on several
occasions that prohibit the establishment of a registry of firearms
or firearms owners (see footnote
123) and past legislative proposals to more strictly regulate
private, intrastate firearm transfers at
gun shows have been considered on the House and Senate floors, but
have not been enacted (see
footnote 125). With regard to multiple long gun reporting
requirements, past legislative proposals
of this nature and current law are limited to handguns.
Notwithstanding Congress’ reluctance
historically to adopt such proposals, the next section analyzes
three anti-firearms trafficking
measures introduced in the 110th Congress.
Endnotes
116 In contrast to firearms statutes, federal drug
statutes define narcotics trafficking, see 21 U.S.C. § 1907(3)
(defining
“narcotics trafficking” as “any illicit activity to cultivate,
produce, manufacture, distribute, sell, finance or transport
narcotic drugs, controlled substances, or listed chemicals”). 18
U.S.C. § 554 makes it a crime, punishable by not more
than 10 years in prison, to smuggle goods from the United States if
a person “fraudulently or knowingly exports or
sends from the United States, or attempts to export ... any
merchandise, article or object contrary to any law or
regulation ... or receives, conceals, buys, sells, or in any manner
facilitates the transportation ... of such merchandise ...
prior to exportation, knowing the same to be intended for
exportation contrary to any law”; 18 U.S.C. § 545 makes it a
crime, punishable by not more than 20 years in prison, to smuggle
goods into the United States.
117 18 U.S.C. 924(k)(3). Notably, this provision that
penalizes smuggling of firearms provides a lesser penalty
compared to 18 U.S.C. § 545, which makes it punishable by not more
than 20 years’ imprisonment and/or a fine to
“knowingly and willfully, with intent to defraud the United States,
smuggle or clandestinely introduce or attempt to
smuggle ... into the United States any merchandise which should have
been invoiced.”
118 18 U.S.C. § 922(a)(1)(A). Violating this
provision is punishable by a fine or imprisonment for five years, or
both,
under 18 U.S.C. § 924(a)(1)(D).
119 Under 18 U.S.C. § 922(m), it is unlawful for a
federally licensed dealer to make a false entry in, fail to make an
entry in, or fail to properly maintain records the licensee is
required to keep. Besides maintaining the ATF Form 4473
for approved transfers, federally licensed dealers are required to
maintain a bound log book of all firearms transactions.
Failing to properly record a firearms transaction is punishable by a
fine or one year in prison, or both, under 18 U.S.C.
§ 924(a)(1)(C) and (D).
120 18 U.S.C. § 922(d).
121 18 U.S.C. § 922(a)(6). Both the dealer and the
buyer are required to fill out an ATF Form 4473, on which the buyer
(transferee) attests to the dealer (transferor) that he is buying
the firearm for himself and that he is not otherwise
prohibited from possessing a firearm. Knowingly making a false
statement on a ATF Form 4473 is punishable under 18
U.S.C. § 924(a)(2) by a fine or imprisonment for ten years or both.
122 U.S. Government Accountability Office, Firearms
Trafficking: U.S. Efforts to Combat Arms Trafficking to Mexico
Face Planning and Coordination Challenges, GAO-09-709, June 2009, p.
24. [hereinafter referred to as GAO Firearms
Trafficking report.]
123 18 U.S.C. § 926 (prohibits the promulgation of
any rule that would have the contents of the records maintained by
FFLs be controlled, transferred, or managed by the United States or
any State and prevents creation of firearms
registry). For FY1979 and thereafter, Congress has included a
proviso in the ATF salaries and expenses appropriations
language that states that no funds shall be used “in connection with
consolidating or centralizing, within the
Department of Justice, the records, or any portion thereof, of
acquisition or disposition of firearms maintained by
Federal firearms licensees.” For latest proviso, see the Omnibus
Appropriations Act, 2009 (P.L. 111-8; 123 Stat. 574).
In addition, in the Brady Handgun Violence Prevention Act (P.L.
103-159; 107 Stat. 1542), Congress prohibited the use
of any information generated by the system established under the
National Instant Criminal Background Check System
to be used to establish any system for the registration of firearms,
firearms owners, or firearms transactions or
disposition, except for information related to background checks on
prohibited persons (107 Stat. 1542).
124 GAO Firearms Trafficking report, p. 25.
125 Congress has considered legislation to close the
“gun show loophole,” and several related bills have been introduced
in recent Congresses. For example, in the 106th Congress, Senator
Frank Lautenberg successfully amended a juvenile
justice bill (S. 254) with such a proposal, and the Senate passed
this bill on May 20, 1999. Representative John Conyers
successfully offered a similar amendment to a house juvenile justice
bill (H.R. 2122) on June 18, 1999, but the House
did not pass this bill. In the 108th Congress, Senator John McCain
successfully offered a similar amendment to a
firearms industry protection act on March 2, 2004, but the Senate
floor manager pulled this bill before a final vote
could be taken. Senator McCain introduced the Gun Show Loophole
Closing Act during the 107th and 108th
Congresses. In addition, Representative Michael Castle has
introduced the Gun Show Loophole Closing Act from the
107th to the 111th Congresses. Senator Lautenberg has introduced the
Gun Show Background Check Act in both the
110th and 111th Congresses. For gun show proposals in the 111th
Congress, see S. 843 and H.R. 2324. See CRS Report
RL32842, Gun Control Legislation, by William J. Krouse.
126 18 U.S.C. 922(t).
127 However, under 18 U.S.C. § 922(d), it is unlawful
for any person to sell or otherwise dispose of a firearm or
ammunition to any person knowing or having reasonable cause to
believe that such person is a prohibited person under
18 U.S.C. 922(g).
128 GAO Firearms Trafficking report, p. 28.
129 Before the 1994 semiautomatic assault weapons ban
was allowed to sunset on September 13, 2004, a large capacity
ammunition feeding device was defined as a “magazine, belt, drum,
feed strip, or similar device manufactured after the
date of enactment of the Violent Crime Control and Law Enforcement
Act of 1994 that has a capacity of, or that can be
readily restored or converted to accept, more than 10 rounds of
ammunition.” See former 18 U.S.C. § 921(a)(31).
130 GAO Firearms Trafficking report, p. 28.
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