Criminal Penalties

January 19, 2015

Gun Trusts for those on Probation (even for Driving)

In Florida, it is illegal for an individual to be on probation to own, possess, or use a firearm without permission of a Judge and his or her probation officer. While initially, this may sound reasonable because in our minds we tend to associate probation with criminals and felons, many of us do not realize that this also applies to those on probation for misdemeanor and driving offenses. Still don’t see a problem? What about a DUI or reckless driving charge? Did you know that you or your spouse could go to jail for owning, using, possessing, or having access to a firearm while on probation for a driving charge?

Most Jacksonville Criminal Defense Lawyers may not know to ask their clients about firearms in these circumstances and may be advising their clients incorrectly when charged with a DUI or reckless driving charge. A Gun Trust can be designed to manage your firearms without risk of loss and criminal prosecution while an individual or family member is on probation.

If you live in another state, you may check to see if the terms of probation include restrictions on ownership, transfer, possession, and use of firearms or weapons.

July 8, 2013

Gun Trusts and Marijuana and Firearm Ownership, Use, and Possession

by David M. Goldman

About two years ago we reported on a potential problem that exists because of a conflict between state and federal law and how this can cause problems with a Gun Trust that is not properly drafted.

Now the BATFE has issued an open letter to FFLs that users of medical marijuana are to be excluded from possessing or owning firearms or ammunition. BATFE cites the Gun Control Act of 1968 as authority for this order, which states that it shall be unlawful to sell or otherwise dispose of any firearm to any person knowing or having reasonable suspicion to believe that such a person is an unlawful user of or addicted to any controlled substance.

As of July 2013, eighteen states have legalized the use of marijuana in some form. Another 6 have pending legislation. Of those eighteen states, sixteen have legalized marijuana usage for medicinal purposes, while Colorado and Washington have also legalized the drug for recreational use. It is important to realize that while these states have passed their own marijuana laws, the possession, use, and distribution of marijuana is still illegal under federal law, which trumps the state laws. The Controlled Substances Act, enacted into law in 1970, categorizes marijuana as a Schedule I controlled substances. So although some states say it is “legal” to use marijuana, under the Gun Control Act, marijuana users are considered “prohibited persons” to whom the sale of firearms and ammunition is illegal.

October 24, 2012

Police Officer Pleads Guilty to having Silencer in NY

by David M. Goldman

It appears that a former deputy in NY had some firearms that had been previously seized by the police in his personal possession even though they were suppose to be destroyed. One of the items in his possession was a silencer. While it appears that active duty police are permitted to have silencers, once they are no longer a police officer they cannot possess them. The specific details on how he received the silencer are not know, but even if he legally possessed it, once he was no longer a police officer his possession in NY would be in violation of the law.

We are often contacted by NY police officers wanting to set up gun trusts to buy silencers in NY and generally advise against it because of the risks of separation from the police and the consequences. Some police officers form trusts and buy and keep NFA firearms in other states where they are legal but it is risky to bring them to NY.

August 13, 2012

Legal Silencers in Illegal Locations

by David M. Goldman

While a Gun Trust or other forms of ownership can allow you to purchase Silencers or other Title II firearms in states where they are legal, it is important to realize that just because you or a trust own a Silencer or other Title II firearm, you do not have the ability to take those items to states where they are illegal to possess.

For example silencers are not legal to purchase, own, transfer, or use in Illinois. Recently an individual was arrested for threatening police and possession of an illegal silencer. The silencer may have been legally purchased but its presence in Illinois is a crime and will make the silencer illegal.

While it sounds like Gali, the individual with the illegal silencer, is in a lot of trouble, the additional penalties for possession of a silencer could add up to more than 10 years in jail and a $250,000 penalty plus seizure of the vessel (his car) that the illegal silencer was found in.

June 13, 2012

Alaska Man Charged for Illegal Silencer and Machine Gun Possession

by David M. Goldman

Closing arguments are about to happen for a trial of three men in Alaska. Schaeffer Cox and two others are charged with, among other crimes, possessing and making an unregistered silencer and possessing an unregistered machine gun.

Defense attorneys will argue Wednesday that their clients acted in self-defense as they took up arms to protect Cox at public appearances, including an interview at North Pole television and radio station KJNP.

Defense attorneys also will claim Wednesday that their clients were entrapped by the government’s primary informer on the case, militia member Gerald “J.R.” Olson, who agreed to work undercover in exchange for consideration on another criminal case.

January 17, 2012

ATF arrests 49 for Violations including possession of SBS

by David M. Goldman

Several Atlanta residents were recently sentenced to serve time after being convicted on varying federal firearms and narcotic related charges, according to information received from agents with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). These sentences are a result of an ATF initiated undercover operation, called ATL Blaze. Undercover agents, placed themselves in positions ultimately putting the word out that they were interested in buying firearms and drugs from the criminal element. The case yielded 257 handguns, 60 rifles, 46 shotguns, and 10 short-barreled sawed-off shotguns taken off the streets of Atlanta. Forty-nine defendants were indicted on charges ranging from conspiring to commit a home robbery, possession of a firearm by a convicted felon, possession of an unregistered short-barreled rifle, possession of a stolen firearm, unlawful dealing in firearms without a license, possession of controlled substances with intent to distribute, and aggravated identity theft. The case was investigated by ATF Atlanta Field Division in conjunction with the Atlanta Police Department (APD).

September 12, 2010

Recent ATF Rumor regarding Revocable Gun Trusts- Don’t be fooled by ATF Approval of Invalid Trusts

by David M. Goldman

Recently we have begun hearing that the ATF is no longer requiring a Schedule A and/or an Assignment of Assets with a Trust. While we have not been able to verify this with ATF at this time, we would still suggest sending in these documents with your trust for approval. Remember that just because ATF approves your trust, they are not stating your trust is valid, only that it meets their limited review of criteria. We have seen many cases where the ATF approves trusts that are not valid and subject the individuals to potential criminal charges, confiscation, and fines of up to $250,000 per offense.

There are significant advantages of using an Assignment sheet over a schedule of assets or as some trusts refer to it “a Schedule A”. While most believe that the registration of firearms has been shown to be one of the first steps in the confiscation of firearms by the government, there are many individuals who unknowingly and freely give the ATF a complete list of their firearms by using a Schedule A. An assignment sheet can still transfer assets into a trust, but not create a full list of the assets and become part of the trust document. This additional privacy is an important advantage to using a NFA Gun Trust like we have created. To find out more about Gun Trusts or have your trust reviewed for problems with the NFA contact a Gun Trust Lawyer® by email or call us.

April 1, 2010

LegalZoom Sued for Unauthorized Practice of Law

by David M. Goldman

While its legal to give someone a form for a trust or will to fill out, its illegal for a non-lawyer to help them complete the form or fill it out for them. Gerry Beyer of the WIlls, Trust & Estate Prof Blog brought my attention to this issue. Many software manufactures, firearms manufactures, gun stores, and individuals do not understand that the act of helping someone create legal documents without a license to practice law is the Unauthorized Practice of Law (UPL) and a crime in every state. The reason these actions are prohibited by state law is that individuals without the proper legal knowledge and background tend to give wrong, inaccurate, and misleading advise to others who can be harmed by the misinformation.

Take for example the Silencer manufacture in the Midwest, who use to post a free trust for their clients. While a lawyer could have taken that trust and completed it correctly, it was missing some very important language which made the trust invalid in almost every state. The ATF was approving these trusts for a while, but as these individuals have been going back to make new purchases, they are being told that their trust is not valid.

Likewise, there are many examples of Quicken trusts that are posted on the INTERNET. Besides being inappropriate for NFA firearms, which a non-lawyer would not understand, many are not valid in other states. We have seen many people trying to use an Arizona trust in Florida. The problem is Florida has different requirements for a valid trust than Arizona and while if the trust was created in Arizona it might be valid, if it is created in Florida it will not comply with the Florida Trust Code. We see these issues all over the country and this is why we work with more than 100 lawyers in over 40 states to help individuals and their families prepare valid trusts that deal with the unique issues of NFA firearms ownership, transfer, possession, and use.

May 26, 2009

BATFE and Seizure From Invalid NFA Trust

by David M. Goldman

Last week there was an issue where an individual was contacted by the ATF in an effort to seize his Title II firearms because of an irregularity with his Trust. A Gun Trust Lawyer® reviewed, amended, and restated the trust in question, creating a valid and enforceable trust that deals with the unique issues of NFA Firearms ownership, transfer, and possession. The BATFE had a justifiable reason to pursue the forfeiture action and the original reports on the subguns forum were accurate. After discussions with the BATFE and presentation of a valid Trust the BATFE decided to cease and desist their forfeiture action at this time and the individual is no longer in jeopardy of having his items seized, being arrested, or being fined. The BATFE and individual have requested that the details not be disclosed. The BATFE does not want to jeopardize similar ongoing investigations involving invalid trusts. We can state that the issues involved with this action have been covered elsewhere on this website.

If you created a trust with Quicken or Legal Zoom, you should follow Legal Zoom’s and Intuit’s advice and have your trust reviewed by an attorney to avoid potential problems. The creators of these programs did not anticipate that individuals would be using the documents in situations that could result in criminal liability.

You may choose to have the trust reviewed to determine if the trust is valid, or reviewed to see if there are issues with the NFA that are not dealt with in your trust, but either way it is important to have your trust reviewed by someone who is familiar with estate planning as well as the NFA.

May 22, 2009

BATFE seeks to seize NFA firearms from an Invalid Quicken Trust

by David M. Goldman

Joshua Prince alerted me to a blog post on a developing situation he ran across on Subguns where an individual used Quicken to attempt to create a trust for NFA purposes. Unfortunately the BATFE has now decided that his Quicken trust was invalid and is seeking to seize his MAC-11 and Silencer. He could also be subject to a prison sentence of 10 years and $250,000 in fines.

This is a very unfortunate situation that could cost the individual severely. Its important to remember that just because the ATF approves your transfer, it does not mean that you are legally in possession. This is the second situation involving invalid trusts and the ATF that we have seen this month. It looks like the ATF is beginning to look more closely at the trust documents they are receiving.

If you created a trust for NFA purchases in Quicken, Legal Zoom, or used another generic trust that was not reviewed before by a lawyer before submitting it to the BATFE, you should contact a NFA trust attorney to review your trust for validity. If you need help finding a local NFA Trust Lawyer we can help. We work with attorneys in more than 40 states including Florida Gun Trust Lawyer®s and South Carolina NFA lawyers to help review and create valid NFA trusts.