From a Federal Perspective: The H.E.A.T. is on!

TACDL’s Ad Hoc Federal Attorney Committee, which is being spearheaded by AFPD Caryll Alpert and consists of a few federal public defenders and private federal defense practitioners from each of the three (3) Districts in Tennessee, has proposed the inclusion of this new federally-based column in TACDL’s publication. The dual objective of the column is to provide basic resource material for federal criminal defense practitioners while simultaneously apprizing state criminal defense practitioners about some of the pitfalls of federal practice (particularly for those state cases that may “go federal”). The column will explore a litany of topics ranging from pre-indictment or Grand Jury representation to every federal criminal defendant’s nightmare – the U.S. Sentencing Guidelines. From the depths of potentially insightful focal points, we searched for a subject matter that would kick-off the column with a bang. What better inaugural topic than guns?

In 2001, the Bush administration promulgated a new policy initiative called Project Safe Neighborhoods (PSN).1 The premise behind PSN is that, by enforcing existing gun laws with vigor and tenacity, gun-related crime rates in our communities will drop and law abiding citizens’ Second Amendment right to bear arms will be protected. To facilitate the initiative, PSN provides federal tax dollars for hiring additional state and federal prosecutors and for funding “community outreach programs.” Furthermore, as an additional incentive, PSN provides participating state and local law enforcement agencies with substantial federal grants to subsidize their budgets. The local moniker for the PSN gun initiative is “H.E.A.T.” The acronym, H.E.A.T., stands for “Help Eliminate Armed Thugs.” As a byproduct of PSN and its local stepchild, H.E.A.T., a disproportionately high number of state and federal gun cases are being cultivated and prosecuted “to the full extent of the law.”

There are a number of federal statutes being implemented to vindicate PSN objectives. First, the National Firearms Act of 1934 (26 U.S.C. §5861) prohibits the manufacturing, alteration, receipt, possession or transport of unregistered or otherwise prohibited firearms (usually a machine gun, short-barreled rifle or shotgun, or silencer), and a violation of this provision can result in a maximum sentence of ten (10) years.2 Defenses to this type of gun prosecution include: registration of the firearm,3 lack of knowledge that the firearm possesses the requisite forbidden characteristics,4 inability to fire modern ammunition,5 or entrapment by estoppel.

Perhaps, one of the government’s favorite instruments of firearm prosecution is 18 U.S.C. §924(c). Section 924(c) carries mandatory consecutive term of imprisonment for using, carrying or possessing a firearm during, in relation to, or in furtherance of any crime of violence or drug trafficking offense. The minimum punishment for a §924(c) infraction is a five (5) year term of imprisonment, consecutive to any other term of imprisonment imposed in the same case. The terms of consecutive imprisonment escalate upward of thirty (30) years depending on the type of weapon and whether it was brandished or fired. A “second or subsequent” conviction under §924(c) may result in an additional, consecutive sentence of twenty-five (25) years to life and is determined by the type of firearm employed. Most §924(c) prosecutions are defended either by attempting to attenuate any nexus between the firearm and the underlying drug or violent offense or by attacking the use, carry or possess prong. 6

Another common avenue of federal gun prosecution is codified at 18 U.S.C. §922(g). Section 922(g) imposes a maximum ten (10) year sentence for possession of a firearm or ammunition by a “prohibited person,” meaning: (1) felons, (2) addicts or users of controlled substances, (3) “adjudicated mental defectives,” (4) fugitives, (5) illegal aliens, (6) dishonorably discharged persons, (7) persons who have renounced their U.S. citizenship, (8) persons subject to domestic violence restraining orders, and (9) persons convicted of misdemeanor domestic violence offenses.

In a §922(g) case, it is of paramount importance to probe the factual underpinning of the prohibition. For example, with a felon in possession case, examine whether the offense was truly a felony and whether the felony was expunged or the client’s rights were restored in accordance with the law of the state of conviction. 7Regardless of why the defendant is prohibited, explore whether the weapon meets the definition of a “firearm:” (1) does it have a receiver; (2) was it manufactured after 1898; (3) does it fire a proscribed projectile; and/or (4) is it a replica? Finally, consider the potential defenses such as entrapment by estoppel,8 justification, 9 innocent or transitory possession, 10 or mere presence) 11

Finally, some of the most draconian and arguably inequitable federal weapon legislation can be found in the Armed Career Criminal Act (ACCA). Specifically, 18 U.S.C. § 924(e) (codifying the ACCA) provides for a fifteen (15) year mandatory minimum to life sentence for a §922(g) convict who has three (3) qualifying prior convictions for a “violent felony” or a “serious drug offense.” Although the particulars of assessing ACCA priors warrant a separate article, it is significant to note several broad precepts.

As a threshold matter, possession of any gun (including long guns) will trigger applicability of the Act. Secondly, there is no time limitation for ACCA priors, and juvenile convictions will count if they satisfy the definition. Third, the ACCA definition of “violent felony” can be counterintuitive. For example, a violation of the federal firearms registration laws (as set forth above in 26 U.S.C. §5861) can be considered a predicate “violent felony.” Fourth, any drug conviction is considered “serious” for ACCA purposes so long as the maximum statutory punishment for the offense at the time of conviction was ten (10) years or more, regardless of the defendant’s actual sentence. Most ACCA cases are defended by attacking the viability of predicate offenses.

Given the aforementioned synopsis of federal gun legislation, H.E.A.T. and Project Safe Neighborhoods’ prosecutorial objective, it is easy to recognize that almost any state gun case could “go federal.” Presently, each county handles referrals to the U.S. Attorney’s office differently. However, there is continuity in that the district attorney’s office is charged with the duty of reporting each state case involving firearms to the federal government. The government then makes a decision to adopt or decline federal prosecution of the gun offense.

In assessing a state gun case, the government will consider factors including, but not limited to, the following: (1) the seriousness of the defendant’s overall criminal history; (2) prior convictions for guns, drugs or violent offenses; (3) the present connection of the firearm to either a drug offense or a crime of violence; (4) the potential for invoking particularly grave statutory or Guideline enhancements based upon the defendant’s criminal history (i.e., ACCA); (5) the defendant’s status as a prohibited person (922(g)); and, (6) whether the incident gun offense was committed while on probation, parole or supervised release. Although these criteria are generally instructive, the government has adopted state gun cases in which the defendant has no criminal history and does not otherwise meet any of these standards.

Therefore, when defending a state gun case, it is important to be mindful that, given the stiff federal gun penalties, the client is always better served if the state retains prosecution of the case. As a state defense practitioner, there are some actions that can be taken to either deter federal prosecution or to assist federal defense counsel once the case is adopted.

Perhaps most important is not to delay or waive the preliminary hearing. Rather, secure a rapid hearing and artfully explore the above-listed relevant considerations and defenses based upon the prospective federal gun charge. If the government identifies a problem with federal prosecution, it may not adopt the case. For the same reason, it is helpful to develop potential suppression issues.

Likewise, acquire as much discovery (police reports, etc.) as possible through either Jencks, friendly persuasion or possibly a Rule 17(c) subpoena. Since federal discovery is so limited, any coaxing or compelling the production of documents will assist the defense if the U.S. Attorney’s office picks-up the case.

Finally, the consensus among federal practitioners consulted for this article is that, if presented with the opportunity to settle the defendant’s gun case in state court (even on an open plea), the client should strongly contemplate taking the deal. Generally, the Petite policy discourages federal prosecution of state cases resulting in a conviction). 12 Although the U.S. Attorney’s office can procure a Petite policy waiver from the Department of Justice under certain enumerated circumstances, a state gun conviction (particularly a felony gun conviction with a sentence to serve) will present an additional hurdle for the government when contemplating adoption.

At this point, there appears to be no end in sight to the rampant gun prosecution permeating both the state and federal systems. However, with long-term, persistent advocacy in gun cases, perhaps the state and federal governments will begin to take a reasoned, case-by-case approach to Project Safe Neighborhoods’ objectives. For now, they are bringing the H.E.A.T.; prepare to bat!

About the Author: Kim Hodde is a private criminal defense practitioner in the Middle District of Tennessee who serves on TACDL’s Ad Hoc Federal Court Committee. For more information about this article or to suggest topics for future articles, please contact her at 615-242-4200.

  1. The official web site for PSN can be found at
  2. See, 26 U.S.C. §5871.
  3. United States v. Collier, 381 F.2d 616 (6th Cir.1967).
  4. Rogers v. United States, 522 U.S. 252, 118 S.Ct. 673, 139 L.Ed.2d 686 (1998);Staples v. United States, 511 U.S. 600, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994).
  5. 26 U.S.C. §5845.
  6. Bailey v. United States, 516 U.S. 137, 138-39, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995); Bousley v. United States, 523 U.S. 614, 616, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998); Muscarello v. United States, 524 U.S. 125, 127, 118 S.Ct. 1911, 141 L.Ed.2d 111(1998); United States v. Rose, F.3d , 2004 WI, 239844 (6th Cir. Feb. 11, 2004); United States v. Moore, 76 F.3d 111, 113 (6th Cir.1996); Hilliard v. United States, 157 F.3d 444,449 (t Cir. 1998).
  7. See, 18 U.S.C. §921(a)(20); Caron v. United States, 524 U.S. 308, 118 S.Ct 2007, 141 LEd.2d 303 (1998); Lewis v. United States, 445 U.S. 55, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980); United States v. Ormsby, 252 F.3d 844 (6th Cir.2001); Hampton v. United States, 191 F.3d 695 (6th Cir.1999).
  8. United States v. Ormsby, 252 Rid 844 (6th Cir.2001).
  9. United States v. Newcomb, 6 F.3d 1129 (6th Cir.1993).
  10. United States v. Mason, 233 F.3d 619 (D.C.Cir.2001).
  11. United States v. Black, 2001 WL 223661 (6th Cir. Mar. 2, 2001); United States v. Chochran, 14 F.3d 1128 (6th Cir. 1994).
  12. In direct response to the Supreme Court’s creation of the dual sovereignty doctrine, the U.S. Department of Justice formulated an internal policy, referred to as the Petite policy. Rinaldi v. United States, 434 U.S. 22, 28, 98 S.Ct. 81,54 L.Ed.2d 207 (1977). The Petite policy “establishes guidelines for the exercise of discretion by appropriate officers of the Department of Justice in determining whether to bring a federal prosecution based on substantially the same act(s) or transactions involved in a prior state or federal proceeding.” Manual § 9-2.031(A); See also, Petite v. United States, 361 U.S. 529, 80 S.Ct. 450,4 L.Ed.2d 490 (1960). The primary Petite policy consideration in gun cases is whether the State conviction sufficiently vindicates the federal interest (i.e., was it a misdemeanor or felony conviction and did it involve serving a sentence). Id.