Using or Carrying a Firearm During A Drug Trafficking Crime-FEDERAL

DRUG LAWYER- VIRGINIA, MARYLAND, WASHINGTON, DC

CRIMINAL DEFENSE LAWYER- VIRGINIA

FELONY CRIMINAL LAWYER - ALEXANDRIA VIRGINIA

VIRGINIA FEDERAL CRIMINAL DEFENSE LAWYER- USING OR CARRYING A FIREARM DURING A DRUG TRAFFICKING OFFENSE - ALEXANDRIA, WASHINGTON, DC, HARRISONBURG, RICHMOND, CHARLOTTESVILLE, NORFOLK, GREENBELT, BALTIMORE,  ROANOKE

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Using or Carrying a Firearm During A Drug Trafficking Crime- 18 U.S.C. 924(c)

In order to sustain its burden of proof for the crime of using or carrying a firearm during and in relation to a drug trafficking crime, the government must prove the following three (3) essential elements beyond a reasonable doubt: (1) the Accused committed a drug trafficking offense; (2) the Accused knowingly possessed at least one firearm; and (3) the Accused knowingly used or carried a firearm during and in relation to that crime or possessed a firearm in furtherance of that crime.

The term “knowingly” means that the Accused was conscious and aware of his or her action, realized what he or she was doing or what was happening around him or her.

The term “knowingly” means that an act was done voluntarily and intentionally, not because of mistake or accident.

The phrase “uses or carries a firearm” means having a firearm, or firearms, available to assist or aid in the commission of the drug trafficking crime.

“Carrying” and “using” are independent terms with different meanings.

To “carry” a firearm during and in relation to a crime means to move or transport the firearm on one's person or in a vehicle or container during and in relation to the crime. It need not be immediately accessible.

The government is not required to show that Accused actually displayed or fired the weapon. The government is required, however, to prove beyond a reasonable doubt that the firearm was in the Accused’s possession or under the defendant's control at the time that a crime of violence was committed.

To “use” a firearm during and in relation to a crime means to employ the firearm actively, such as to brandish, display, barter, strike with, fire or attempt to fire it, or even to refer to it in a way calculated to affect the underlying crime. The firearm must have played a role in the crime or must have been intended by the Accused to play a role in the crime. That need not have been its sole purpose, however.

The term “in furtherance of”, means to advance, move forward, promote, or facilitate the drug trafficking crime.

It is not necessary for the government to show that the weapon was fired. It is sufficient if the proof establishes that the firearm furthered the commission of the drug trafficking crime or was an integral part of the underlying crime being committed.

The relationship between the use of the firearm and the predicate violent offense is an essential element of the crime. Possession alone without proof of a relationship to the underlying crime is insufficient.

For example, it is a violation of the statute if the Accused possessed the firearm at least in part to protect his drugs, drug proceeds, or himself, from competing drug dealers or the police, or possessing the firearm for some other reason, which in some way moved forward, advanced, promoted or facilitated the drug trafficking crime.

The mere presence of a gun within the Accused’s dominion and control during a drug trafficking offense is not sufficient by itself to sustain a conviction.  Rather, there must be a showing of some nexus between the firearm and the drug selling operation.  The nexus between the gun and the drug operation can be established by the type of drug activity that is being conducted, accessibility of the firearm, the type of the weapon, whether the weapon is stolen, the status of the possession (legitimate or illegal), whether the gun is loaded, proximity to the drugs or drug profits, and the time and circumstances under which the gun is found. While these factors are not exclusive, they distinguish possession in furtherance of a crime from innocent possession of a wall-mounted antique or an unloaded hunting rifle locked in a cupboard.

For an accomplice in a drug case to be sentenced for using or carrying a firearm in the commission of the offense, the accomplice must have known to a “practical certainty” that the principal would be carrying a gun. Furthermore, the standard of “practical certainty” is higher than either “a substantial probability” or “more probable than not.” Practical certainty is “the equivalent to knowledge; an accomplice ‘knows’ an act will happen if he is ‘practically certain’ it will.

 
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