When the FBI Comes Calling…®
TRAFFICKING IN ILLICIT ARMS
Background
Transnational arms trafficking is a very serious crime, but it is also very complicated. For the purposes of this website, we concern ourselves only with the trafficking of firearms, low-yield explosives, and items like flak vests and night-vision goggles.
26 U.S.C. § 5861 (2005).
Under this statute, it is a crime for any person to
- engage in business as a manufacturer or importer of, or dealer in, firearms without
- having paid the special occupational tax required by 26 U.S.C. § 5801 for his business or
- having registered as required by 26 U.S.C. § 5802; 26 U.S.C. § 5861(a); or
- receive or possess a firearm transferred to him in violation of the provisions of this chapter (26 U.S.C. §§ 5801 et seq.); Id. § 5861(b); or
- receive or possess a firearm made in violation of the provisions of this chapter; Id § 5861(c); or
- receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record; Id. § 5861(d); or
- transfer a firearm in violation of the provisions of this chapter; Id § 5861(e); or
- make a firearm in violation of the provisions of this chapter; Id § 5861(f); or
- obliterate, remove, change, or alter the serial number or other identification of a firearm required by this chapter; Id § 5861(g); or
- receive or possess a firearm having the serial number or other identification required by this chapter obliterated, removed, changed, or altered; Id § 5861(h); or
- receive or possess a firearm which is not identified by a serial number as required by this chapter; Id § 5861(i); or
- transport, deliver, or receive any firearm in interstate commerce which has not been registered as required by this chapter; Id § 5861(j); or
- receive or possess a firearm which has been imported or brought into the United States in violation of 26 U.S.C. § 5844; Id § 5861(k); or
- make, or cause the making of, a false entry on any application, return, or record required by this chapter, knowing such entry to be false. Id § 5861(l).
26 U.S.C. § 5844 (2006)
There is also a general prohibition on the importation or the bringing into the United States of firearms, unless the importer establishes that the firearm to be imported or brought in is—
- being imported or brought in for the use of the United States; or
- being imported or brought in for scientific or research purposes; or
- being imported or brought in solely for testing or use as a model by a registered manufacturer for use as a sample by a registered importer or registered dealer. 26 U.S.C. § 5844.
The Punishment
The Punishment for a violation of section 5801 et seq. is a fine of up to $10,000, imprisonment for up to 10 years, or both.
Case Law Interpreting Sections 5861 and 5844
Congress clearly intended to make it unlawful to receive or possess a firearm which has been imported or brought into the United States illegally, (section 5861(k)) and to make it unlawful for a person to import a firearm except in a few circumstances (section 5844). United States v. Javino, 960 F.2d 1137, 1143 (2d Cir. 1992). However, to constitute a violation of section 5844, the defendant "had to intend to sell or distribute the [weapons] within the United States. See United States v. One Colt Machine Gun, 625 F. Supp. 1539, 1542 (S.D. Fla. 1986) (citing 18 U.S.C. § 921(a)(9) (discussed below) (the term "importer" means any person engaged in the business of importing or bringing firearms or ammunition into the United States for purposes of sale or distribution)). In One Colt Machine Gun, an in rem action for civil forfeiture, the owner of the weapons in question possessed them merely as prized possessions and there was no intent to sell or distribute them. Id.