[Senate Report 113-9]
[From the U.S. Government Publishing Office]
Calendar No. 23
113th Congress Report
SENATE
1st Session 113-9
======================================================================
STOP ILLEGAL TRAFFICKING IN FIREARMS ACT OF 2013
_______
April 5, 2013.--Ordered to be printed
Filed, under authority of the order of the Senate of
March 23 (legislative day, March 22), 2013
_______
Mr. Leahy, from the Committee on the Judiciary,
submitted the following
R E P O R T
together with
ADDITIONAL AND MINORITY VIEWS
[To accompany S. 54]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to which was referred the
bill (S. 54) to increase public safety by punishing and
deterring firearms trafficking, having considered the same,
reports favorably thereon, with an amendment, and recommends
that the bill, as amended, do pass.
CONTENTS
Page
I. Background and Purpose of the Stop Illegal Trafficking in Firearms
Act of 2013......................................................2
II. History of the Bill and Committee Consideration..................7
III. Section-by-Section Summary of the Bill...........................9
IV. Congressional Budget Office Cost Estimate.......................11
V. Regulatory Impact Evaluation....................................12
VI. Conclusion......................................................12
VII. Additional and Minority Views...................................13
VIII.Changes to Existing Law Made by the Bill, as Reported...........19
I. Background and Purpose of the Stop Illegal Trafficking in Firearms
Act of 2013
Illegal trafficking of firearms to violent criminals,
gangs, and drug trafficking organizations presents a grave
threat to public safety.\1\ Investigations by the Bureau of
Alcohol, Tobacco, Firearms, and Explosives (ATF) have revealed
that trafficked firearms are often diverted to criminals or
criminal organizations and then used in serious and violent
offenses.\2\ An estimated 467,321 firearm-related violent
crimes occurred in the United States in 2011, a 26 percent
increase since 2008.\3\ Investigations show that convicted
felons are heavily involved in firearms trafficking and its
tragic consequences.\4\
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\1\On December 24, 2012, William Spengler Jr. set fire to his house
and ambushed firefighters from the West Webster, New York fire company.
Mr. Spengler killed two firefighters and seriously wounded two others.
Two of the firearms used in the attack were purchased for Mr. Spengler,
who was prohibited under Federal law from purchasing firearms. The
firearms were purchased by his neighbor on his behalf. Marc Santora,
Woman Helped Firefighters' Killer Get Gun He Used in Ambush, Police
Say, N.Y. Times, December 28, 2012.
\2\Over half of trafficking investigations initiated between July
1996 and December 1998 involved at least one diverted firearm used in a
crime. Twenty-five percent of the investigations involved one or more
firearms used in an assault, and 17 percent involved one or more
firearms used in a homicide. See ATF, Following the Gun: Enforcing
Federal Laws Against Firearms Traffickers. June 2000.
\3\Wintemute GJ. Background Checks for Firearms Transfers. February
2013, at 3.
\4\Twenty-five percent of traffickers identified by investigations
initiated between July 1996 and December 1998 were convicted felons.
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Individuals known as ``straw purchasers'' play key roles in
many firearms trafficking operations. Straw purchasers are
typically individuals without a criminal record who buy
firearms for drug dealers, violent criminals, or other
prohibited persons, sometimes for payment in money or drugs.
Straw purchasers are often friends, relatives, spouses, or
partners of firearms traffickers. Straw purchasers usually
acquire a relatively small number of firearms in each
transaction, which helps to circumvent the background check
requirements of Federal law. Firearms traffickers then sell and
re-sell illegally obtained guns and transport them across state
lines, contributing to the gun violence in our communities and
along our borders.
Straw purchasing is common. In a 2011 survey of Federally
licensed firearms dealers and pawn brokers, known as Federal
Firearms Licensees (FFLs), over 67 percent reported
experiencing at least one attempted straw purchase in the
preceding year, and almost 10 percent reported monthly
attempts.\5\ In the 46 percent of ATF trafficking
investigations initiated between July 1996 and December 1998,
straw purchasers were the source of the trafficked firearms.
This was more than double the percentage of the next closest
source.
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\5\Wintemute GJ. ``Frequency of and responses to illegal activity
related to commerce in firearms: findings from the Firearms Licensee
Survey.'' Inj Prev. Published Online First: March 11, 2013,
doi:10.1136/injuryprev-2012-040715, at 3.
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Notably, prohibited persons such as felons and drug dealers
currently are able to purchase firearms themselves through
private sales that require no background check, yet these
individuals continue to employ straw purchasers to buy from
FFLs. Straw purchases from FFLs are favored in part because
FFLs usually carry a greater variety of firearms, FFLs sell
``clean'' firearms with no link to criminality, and also
because straw purchasing is easy. As one former gang member
said, ``Straw purchases are so easy it's a no-brainer. Why buy
a hot gun on the street when you can easily do a straw
purchase?''\6\
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\6\Mayors Against Illegal Guns. Inside Straw Purchasing: How
Criminals Get Guns Illegally. April 15, 2009, at 2.
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Gun shows are another source of firearms for traffickers.
In many States, both FFLs and unlicensed sellers sell firearms
at gun shows. While FFLs must perform background checks,
unlicensed sellers are not required to do so, so prohibited
purchasers can buy firearms directly from unlicensed sellers.
Federal law enforcement officials lack the legal tools
necessary to effectively combat illegal firearms trafficking,
and for years they have raised the alarm that the existing
legal framework is insufficient to deter those who would
traffic in firearms. There is presently no Federal statute
specifically prohibiting firearms trafficking or straw
purchasing. This requires prosecutors to try to find other gun-
related criminal statutes that can be applied to the facts of a
particular trafficking scheme.
A report from the Department of Justice Inspector General
concerning certain investigative tactics used by ATF relative
to straw purchasing and firearms trafficking in Arizona
illustrated the extent of the problem and the difficulties that
law enforcement officials have in using existing laws to combat
these practices.\7\ In testimony before the House Oversight and
Government Reform Committee, an ATF agent witness, Peter
Forcelli, who appeared to describe the investigative tactics
that were the subject of congressional inquiry, described
current Federal laws as ``toothless,''\8\ and characterized the
common perception that the penalties for a straw purchasing
offense ``were no more consequential than doing 65 in a 55
zone.''\9\
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\7\Office of the Inspector General, U.S. Department of Justice, A
Review of ATF's Operation Fast and Furious and Related Matters,
September 19, 2012.
\8\Operation Fast and Furious: Reckless Decisions, Tragic Outcomes:
Hearing Before the H. Comm. on Oversight and Government Reform, 112th
Cong. 108 (2011) (statement of Peter Forcelli).
\9\Id.
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The most common criminal statutes used to charge straw
purchasers do not specifically prohibit buying a firearm on
behalf of another. Rather, they prohibit making material false
statements in connection with the purchase of a firearm from an
FFL. These offenses are too often perceived by judges and
juries as ``paperwork'' violations, and the actual penalties
for such offenses are too low to serve as either a meaningful
deterrent or an effective incentive for defendants to cooperate
with law enforcement against other members of the trafficking
organization. In addition, prosecutions of these offenses can
be challenging, given that the Government must prove beyond a
reasonable doubt that the purchaser intentionally lied on the
form, and did not merely make a mistake. In this context, it is
important to note that simply failing a background check is not
a crime, and there is no Federal criminal statute that
specifically criminalizes the conduct of straw purchasing or
gun trafficking.\10\
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\10\The minority views assert that straw purchasers ``likely would
be deterred by current sentencing levels if the laws were actually
being enforced''. To the contrary, law enforcement officials have
consistently reported that straw purchasers are not deterred by current
laws, none of which directly address straw purchasing. The minority
views cite supposed expert testimony at Committee hearings that ``the
lack of prosecutions for attempts to purchase a gun on behalf of a
prohibited person is a major problem.'' The witnesses at these hearings
said no such thing. Rather, they faulted the Department of Justice for
not prosecuting individuals who failed background checks. Straw
purchasers do not fail background checks; their ability to pass a
background check is what makes them a suitable straw purchaser.
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The Stop Illegal Trafficking in Firearms Act of 2013
addresses this problem, and fills in a gap in the criminal
statutes. Contrary to the assertion in the minority views that
this bill ``is not tailored to suit the needs of law
enforcement,'' this legislation was in fact drafted at the
request of, and with the direct input of law enforcement. The
bill directly responds the long-standing complaint of law
enforcement officials that no Federal statute specifically
prohibits straw purchasing and gun trafficking, and accordingly
has been endorsed by numerous national law enforcement
organizations, including the National Fraternal Order of
Police, the Federal Law Enforcement Officers Association, the
Major Cities Chiefs Association, the FBI Agents Association,
and the National Organization of Black Law Enforcement
Executives. Notably, the minority views do not cite to any law
enforcement officials who claim that the bill is not tailored
to suit their needs.
This legislation creates, for the first time, specific
Federal crimes prohibiting straw purchasing and gun
trafficking. A new section 932 in the firearms statute makes it
a crime to purchase a firearm from an FFL for, on behalf of, or
at the request or demand of any other person. This codifies an
intended restriction; anyone purchasing a firearm from an FFL
must already sign a Form 4473 stating that he or she is the
``actual buyer'' of the firearm.\11\ For purchases made from an
unlicensed seller, this new section makes it a crime to
purchase a gun for, on behalf of, or at the request or demand
of a person prohibited from possessing a firearm, such as a
convicted felon or a person adjudicated as mentally ill. The
maximum sentence for this offense would be 15 years
imprisonment, or 25 years imprisonment if the defendant knew or
had reasonable cause to believe that any firearm involved would
be used to commit a crime of violence.
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\11\The minority views claim that the bill ``expands the reach of
federal gun laws by prohibiting the purchase of a firearm on behalf of
not only a prohibited person, but any person.'' In reality, however,
the bill does not prohibit any conduct that is currently allowed.
Purchases on behalf of others are not permitted at FFLs currently, and
the bill only prohibits purchases from non-FFLs on behalf of
individuals already prohibited from possessing a firearm. The
additional views of Senator Grassley recognize that the bill is
``directed only at straw purchasers.'' The additional views go on to
state, however, that ``[t]his allows people to buy for people as part
of a legitimate business.'' To be clear, the bill prohibits purchases
on behalf of others from FFLs, and purchases on behalf of other
prohibited persons from non-FFLs, regardless if the purchaser has a
``legitimate business''.
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The bill is narrowly tailored to target straw purchasers.
The bill exempts legitimate transactions that are allowed under
current law, including the purchase from an FFL of a firearm as
a legitimate gift for another person, the retrieval by a third
person of a firearm that is being repaired by a gunsmith, and
the purchase of a firearm to be given to a bona fide winner of
an organized raffle, contest, or auction conducted in
accordance with law and sponsored by a national, State, or
local organization or association.\12\
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\12\The minority views raise an unfounded concern with the raffle
exception. Contrary to their suggestion, a volunteer or employee cannot
be held liable under Section 932 for purchasing a firearm for a to-be-
determined raffle winner if that raffle winner turns out to be a
prohibited person. Liability under Section 932 is tied to the time of
purchase of the firearm. If a purchaser has no knowledge of the
identity of the raffle winner, the purchaser cannot be prosecuted under
Section 932. Moreover, even if the identity of the raffle winner were
known at the time of purchase, the purchaser could not be prosecuted
unless he knew or had reasonable cause to believe that the winner was a
prohibited person.
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With regard to private sales that do not involve an FFL,
the bill only prohibits purchases in which the seller knows or
has reasonable cause to believe that he or she is purchasing
the firearm on behalf of a person who belongs to one of the
groups of individuals prohibited from possessing a firearm
under Federal law. A purchaser who has no reasonable cause to
believe that the other person is a convicted felon or has been
adjudicated mentally ill, for instance, does not violate the
law. This reasonable cause standard is the standard in current
law for similar offenses.
With regard to private sales, the bill also makes it a
crime to purchase a firearm from a private seller on behalf of
someone who the purchaser knows or has reasonable cause to
believe intends to use, carry, possess, sell, or otherwise
dispose of the firearm in furtherance of a crime of violence or
drug trafficking crime, or intends to export the firearm in
violation of law. This straightforward provision targets the
most dangerous straw purchases: those where the firearm is
intended for use in a dangerous crime or will be sent to
another country. Prohibiting these straw purchases should not
be controversial, yet surprisingly the minority views object to
these provisions.
The chief complaint in the minority views appears to be
that Section 932(b)(2)(J) creates a new category of persons
prohibited from being sold a firearm in a private sale: would-
be criminals. The minority views suggest that a straw purchaser
should not be subject to criminal liability because the actual
buyer may decide not to use the firearm to commit a crime.
Contrary to the suggestion in the minority views, however,
Section 932(b)(2)(J) does not hold ``the purchaser of a
firearm, who later resells it, criminally liable for the future
potential actions of a future buyer.'' First, liability under
Section 932 is tied to the time of purchase of the firearm.
Thus, someone who buys a firearm but decides sometime after its
purchase to re-sell the firearm is not covered by Section 932.
Second, Section 932 holds the purchaser responsible only for
what he knows or has reasonable cause to believe at the time of
purchase. If the purchaser has little or no reason to know that
the firearm will be used in a crime, he has not violated
Section 932. Nor would the purchaser be criminally liable for
crimes committed with the firearm--which would be violations of
other laws, not Section 932.
The minority views complain that Section 932 places an
undue burden on purchasers to determine whether the actual
buyer plans to use the firearm in a crime or transfer the
firearm to a third person who intends to use the firearm in a
crime. Although it is reasonable to expect that one who
purchases a gun for someone else at a private sale should have
a duty to perform some due diligence to ensure that he is not
buying a firearm for someone who intends to use it in a crime,
Section 932(b)(2)(J) does not even require this. The provision
simply prohibits these purchasers from buying firearms for
people they know or have reasonable cause to believe intend to
use the firearms in certain illegal activities like violent
crime, based on the information known to them. The provision
does not require purchasers to take affirmative steps to
investigate the actual buyers, nor will it affect innocent
parties who unwittingly purchase firearms for criminals. Simply
put, under the provisions of this bill, a purchaser may not buy
a gun for someone else at a private sale if the purchaser knows
or has reasonable cause to believe--at the time of purchase--
that the actual recipient intends to use the firearm in a
crime. This is a commonsense measure that has the support of
law enforcement, and it should not be controversial. The bill
also creates a new Federal firearms trafficking crime (Section
933) that makes it illegal to ship, transport, transfer, cause
to be transported, or otherwise dispose of two or more firearms
to someone that was known or reasonably believed to be
prohibited from using or possessing a firearm under Federal
law. This section also makes it a crime to receive from another
person two or more firearms if the recipient knows or has
reasonable cause to believe that such receipt would be in
violation of Federal law. Violators of this new trafficking
measure would be subject to a maximum sentence of 15 years
imprisonment, or 25 years imprisonment if the defendant was an
organizer, leader, supervisor, or manager of the trafficking
activity.\13\
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\13\The minority views erroneously state that ``a violation of
Section 932(b)(J) carries a maximum sentence of 15 years while Section
932(c)(2) carries a 25 year maximum penalty for the same crime,
transferring the firearm with reasonable cause to believe it will be
used in a crime of violence.'' Setting aside the fact that (as the
minority views consistently fail to recognize) the new Section 932
prohibits the purchase of a firearm, not its transfer, Section 932(b)
does not contain the penalties for the crimes enumerated in the first
place; those penalties are listed in Section 932(c)(1) and (2). A
violation of Section 932(b)(2)(J), like a violation of any part of
Section 932(b), has a maximum penalty of 15 years unless it was
committed knowing or with reasonable cause to believe that a firearm
will be used to commit a crime of violence, in which case the maximum
penalty is 25 years.
The minority views also criticize the penalties in the bill as
``unnecessarily high'' while simultaneously suggesting that the higher
25-year maximum penalty should apply more broadly. The 25-year maximum
penalty is appropriately reserved for organizers, leaders, supervisor,
and managers of larger trafficking organizations, i.e. those consisting
of five or more other persons. Providing enhanced penalties for leaders
of organizations of this size is neither arbitrary nor unprecedented.
See United States Sentencing Guidelines Sec. 3B1.1.
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Besides creating new Federal crimes, the bill gives law
enforcement the tools it needs to successfully investigate gun
trafficking and break up sophisticated trafficking
organizations. The bill authorizes the use of electronic
surveillance for such cases, as well as for the felony firearms
violations set forth in sections 922 and 924 of Title 18, and
adds new sections 932 and 933 as predicate violations for
racketeering and money laundering violations. The legislation
also includes a forfeiture provision to deprive firearms
traffickers and their organizations of proceeds that are often
used to acquire additional weapons or otherwise support their
illicit activities. Under this new forfeiture provision, a
judge would be authorized to impose a fine equal to twice the
amount of the gross proceeds acquired through the relevant
criminal conduct.
The bill directs the United States Sentencing Commission to
review and amend its guidelines and policy statements to ensure
that persons convicted of offenses related to straw purchasing
and firearms trafficking are subject to increased penalties in
comparison to those currently provided by the guidelines and
policy statements. This section makes clear Congress' intent
that the applicable guideline penalties be increased and the
guidelines and policy statements reflect the extremely serious
nature of the straw purchasing and firearms trafficking
offenses, and the need for an effective deterrent and
appropriate punishment to prevent such offenses.
In addition to the creation of new crimes specifically
prohibiting straw purchasing and firearms trafficking, the bill
amends existing firearms law to further combat these offenses.
Section 922(d) prohibits the sale or disposition of firearms or
ammunition to certain categories of individuals who are known,
or reasonably believed to be, prohibited under law from
possessing a firearm. The bills expands this provision to
prohibit the sale or disposition of firearms or ammunition to
anyone whom the transferor knows or has reasonable cause to
believe intends, after receipt of the item, to then transfer
the item to a prohibited person, export the item illegally, or
transfer the time in furtherance of a crime of violence or drug
trafficking offense. This provision is designed to target
sophisticated gun trafficking schemes that use multiple levels
of straw purchasers to avoid detection and prosecution. The
bill increases the maximum sentence from 10 to 15 years for
violations of section 922(d), and also for 922(g), which
prohibits those same categories of individuals (e.g., convicted
felons) from possessing firearms or ammunition.
Current law prohibits individuals from transferring a
firearm with knowledge that the firearm will be used to commit
a crime of violence or a drug trafficking crime. This statute,
18 U.S.C. section 924(h), requires the Government to prove that
the defendant knew, at the time of transfer, that a firearm
would actually be used in furtherance of a crime of violence or
drug trafficking crime. This high standard allows traffickers
to escape punishment in cases where they can claim that they
strongly suspected, but did not know for certain, that a
firearm would be used to commit a crime of violence or drug
trafficking crime. The bill amends section 924(h) to prohibit
the transfer of firearms or ammunition where the individual
knows or has reasonable cause to believe that they will be used
to commit one of the predicate offenses. In order to assist the
efforts of law enforcement, particularly along the Southwest
border, the bill also extends the prohibition to include
violations of the Arms Export Control Act, the International
Emergency Economic Powers Act, and the Foreign Narcotics
Kingpin Designation Act.
In recent years, trafficking organizations have exported
large quantities of firearms from the United States to Mexico
to support Mexican drug trafficking organizations. The Mexican
government submitted to the ATF for tracing 112,287 firearms
recovered between 2007 and June 30, 2012. Tracing revealed that
76,853 of the firearms (68.4 percent) were sourced to the
United States, meaning that the firearms were either
manufactured in or legally imported to the United States.\14\
Current law, 18 U.S.C. Section 924(k), prohibits individuals
from smuggling or otherwise bringing a firearm into the United
States with the intent to engage in or promote a drug crime or
violent crime. The bill expands this prohibition on firearms
smuggling to cover the smuggling of firearms out of the United
States in furtherance of drug trafficking or violent crimes.
The bill also extends the prohibition to cover the smuggling of
ammunition. The existing maximum sentence for smuggling
firearms into the United States is increased to 15 years
imprisonment, and the maximum sentence for the new crime of
smuggling firearms out of the United States is set at 15 years
imprisonment.
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\14\ATF Firearms Tracing System.
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II. History of the Bill and Committee Consideration
A. INTRODUCTION OF THE BILL
The Stop Illegal Trafficking in Firearms Act of 2013, S. 54
was introduced on January 22, 2013, by Senators Leahy and
Durbin. The bill was referred to the Committee on the
Judiciary. After the bill's introduction, Senator Blumenthal
joined as a co-sponsor. Since the bill was reported out of the
Committee, Senators Collins, Gillibrand, Kirk, King, and
Shaheen have joined as cosponsors.
B. COMMITTEE CONSIDERATION
1. Hearings
In the aftermath of the tragedy in Newtown, Connecticut,
the Senate Committee on the Judiciary and the Subcommittee on
the Constitution, Civil Rights, and Human Rights held two
hearings relevant to straw purchasing and firearms trafficking.
The Committee on the Judiciary held a hearing titled, ``What
Should America Do About Gun Violence?'' on January 30, 2013.
The witnesses at the hearing were Captain Mark Kelly, Americans
for Responsible Solutions; David Kopel, Adjunct Professor at
Denver University, Strum College of Law; James Johnson, Chief
of the Baltimore County Police Department; Gayle Trotter,
Attorney and Senior Fellow for the Independent Women's Forum;
and Wayne LaPierre, Executive Vice President and Chief
Executive Officer of the National Rifle Association. Former
United States Representative Gabrielle Giffords gave brief
remarks at the beginning of the hearing.
The Subcommittee on the Constitution, Civil Rights, and
Human Rights held a hearing titled ``Proposals to Reduce Gun
Violence: Protecting Our Communities While Respecting the
Second Amendment,'' on February 12, 2013. The witnesses at the
hearing were Timothy Heaphy, United States Attorney for the
Western District of Virginia; Laurence Tribe, Professor at
Harvard Law School; Dr. Daniel Webster, Director and Professor
at the John Hopkins Center for Gun Policy and Research; Sandra
Wortham; Charles Cooper, Partner at Cooper & Kirk; and Suzanna
Hupp.
The witness testimony for these hearings is available at:
http://www.judiciary.senate.gov/hearings/hearing.cfm?id=
8ddfce272f36de81e62e30d8153a7d3a
http://www.judiciary.senate.gov/hearings/hearing.cfm?id=
eed1f8b2e83fd7365bee9cb8432af898
2. Executive Business Meetings
This legislation, S. 54, was placed on the Committee's
agenda for consideration on February 28, 2013. It was held over
on that date.
On March 7, 2013, the Committee considered S. 54. Chairman
Leahy offered a substitute amendment to the bill, and explained
that the text of the substitute amendment was identical to S.
443, a bipartisan bill introduced earlier that week by Senators
Leahy, Collins, Durbin, Gillibrand, and Kirk. The substitute
amendment was adopted by unanimous consent.
Senator Grassley offered an amendment that would require
the Attorney General, Deputy Attorney General, or Assistant
Attorney General for the Criminal Division to personally
authorize any Department of Justice operation where a Federal
firearms licensee (FFL) is directed, instructed, enticed, or
otherwise encouraged to sell a firearm to a straw purchaser.
The amendment was adopted by unanimous consent.
The Committee then voted to report S. 54, the Stop Illegal
Trafficking in Firearms Act, as amended, favorably to the
Senate. The Committee proceeded by roll call vote as follows:
Tally: 11 Yeas, 7 Nays
Yeas (11): Leahy (D-VT), Feinstein (D-CA), Schumer (D-NY),
Durbin (D-IL), Whitehouse (D-RI), Klobuchar (D-MN), Franken (D-
MN), Coons (D-DE), Blumenthal (D-CT), Hirono (D-HI), Grassley
(R-IA).
Nays (7): Hatch (R-UT), Sessions (R-AL), Graham (R-SC),
Cornyn (R-TX), Lee (R-UT), Cruz (R-TX), Flake (R-AZ).
III. Section-by-Section Summary of the Bill
Sec. 1. Short title
The short title of the bill is the ``Stop Illegal
Trafficking in Firearms Act of 2013.''
Sec. 2. Table of Contents
This section contains the table of contents for the bill.
Sec. 3. Hadiya Pendleton and Nyasia Pryear-Yard anti-straw purchasing
and firearms trafficking amendments
This section would create a new Section 932 in the firearms
statute that would make it a crime to purchase a gun from a
Federal Firearms Licensee (FFL) for, on behalf of, or at the
request or demand of any other person.\15\ For purchases made
from a private seller, this new section would make it a crime
to purchase a gun for, on behalf of, or at the request or
demand of someone who is prohibited from possessing a firearm
(e.g., a convicted felon or someone adjudicated as mentally
ill). The maximum sentence for this offense would be 15 years
imprisonment, or 25 years imprisonment if the defendant knew or
had reasonable cause to believe that any firearm involved would
be used to commit a crime of violence. This section also
ensures that convicted felons and other prohibited persons may
not use pawn or consignment shops to circumvent this law, while
including provisions expressly exempting other transactions
that are allowed under current law, including: the lawful
purchase from an FFL of a firearm as a legitimate gift for
another person; the retrieval by a third person of a firearm
repaired by a gunsmith; and the purchase of a firearm to be
given to bona fide winners of an organized raffle, contest, or
auction conducted in accordance with law and sponsored by a
national, State, or local organization or association.
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\15\It is important to note that anyone purchasing a firearm from
an FFL must already sign a Form 4473 stating that he or she is the
``actual buyer'' of the firearm.
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This section also creates a new Federal firearms
trafficking statute (Section 933) that would make it illegal to
ship, transport, transfer, cause to be transported, or
otherwise dispose of two or more firearms to someone that was
known or reasonably believed to be prohibited from using or
possessing a firearm under Federal law. This section also makes
it a crime to receive from another person two or more firearms
if the recipient knows or has reasonable cause to believe that
such receipt would be in violation of Federal law. In addition,
the section makes it a crime to attempt or conspire to violate
this gun trafficking statute. Violators of this new trafficking
statute would be subject to a maximum sentence of 15 years
imprisonment, or 25 years imprisonment if the defendant acted
in concert with five or more other persons and was an
organizer, leader, supervisor, or manager of the trafficking
activity.
This section also includes a forfeiture provision that
would deter straw purchasers and other firearms traffickers and
deprive them and their organizations of proceeds that are often
used to acquire additional weapons or otherwise support their
illicit activities. Under this new forfeiture provision, a
judge would be authorized to impose a fine equal to twice the
amount of the gross proceeds acquired through the criminal
conduct.
This section also authorizes the use of electronic
surveillance for investigating cases involving straw purchasers
and firearms traffickers, as well as the felony firearms
violations set forth in 18 U.S.C. 922 and 924. This section
also adds new sections 932 and 933 as predicate violations for
racketeering and money laundering violations.
Finally, this section directs the United States Sentencing
Commission to review and amend its guidelines and policy
statements to ensure that persons convicted of offenses related
to straw purchasing and firearms trafficking are subject to
increased penalties in comparison to those currently provided
by the guidelines and policy statements. This section makes
clear Congress' intent that the applicable guideline penalties
be increased and the guidelines and policy statements reflect
the extremely serious nature of the straw purchasing and
firearms trafficking offenses, and the need for an effective
deterrent and appropriate punishment to prevent such offenses.
Sec. 4. Amendments to Section 922(d)
Under current law, 18 U.S.C. Section 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 the person is prohibited from possessing a firearm
for any of the reasons set forth in Section 922(d). This
section of the bill prohibits the transfer of firearms to
individuals the transferor knows or has reasonable cause to
believe intend to: sell or otherwise dispose of the firearm or
ammunition to a prohibited person, or in furtherance of a crime
of violence or drug trafficking offense, or export the firearm
or ammunition in violation of law.
Sec. 5. Amendments to Section 924(a)
This section increases the maximum sentence from 10 to 15
years for violations of Sections 922(d) and 922(g). Section
922(d) prohibits the sale or disposition of firearms or
ammunition to certain categories of individuals who are known,
or reasonably believed to be, prohibited under law from
possessing a firearm. Section 922(g) prohibits those same
categories of individuals (e.g., convicted felons) from
possessing firearms or ammunition.
Sec. 6. Amendments to Section 924(h)
Current law prohibits individuals from transferring a
firearm with knowledge that the firearm would be used to commit
a crime of violence or a drug trafficking crime. This statute,
18 U.S.C. Section 924(h), requires the government to prove that
the defendant knew, at the time of transfer, that a firearm
would actually be used in furtherance of a crime of violence or
drug trafficking crime. This section of the bill amends Section
924(h) to prohibit the transfer of firearms or ammunition when
the individual knows or has reasonable cause to believe that
they will be used to commit one of the predicate offenses. In
order to assist the efforts of law enforcement, particularly
along the Southwest border, this section also extends the
prohibition to include violations of the Arms Export Control
Act, the International Emergency Economic Powers Act, and the
Foreign Narcotics Kingpin Designation Act. This section also
makes it unlawful to attempt or conspire to violate this
provision.
Sec. 7. Amendments to Section 924(k)
Current law, 18 U.S.C. 924(k), prohibits individuals from
smuggling or otherwise bringing a firearm into the United
States with the intent to engage in or promote a drug crime or
violent crime. This section expands this prohibition on
firearms smuggling to cover the smuggling of firearms out of
the United States in furtherance of drug trafficking or violent
crimes. This section would also make it a crime to attempt or
conspire to violate this provision, and extends the prohibition
to cover the smuggling of ammunition. These amendments would
assist law enforcement in their efforts to combat trafficking
organizations that export large quantities of firearms and
ammunition from the United States into Mexico to support
Mexican drug trafficking organizations. The existing maximum
sentence for smuggling firearms into the United States would be
increased to 15 years imprisonment, and the maximum sentence
for the new crime of smuggling firearms out of the United
States would be set at 15 years imprisonment, as well.
Sec. 8. Limitation on Operations by the Department of Justice
This section would require the Attorney General, the Deputy
Attorney General, or the Assistant Attorney General for the
Criminal Division to review and approve certain investigative
operations concerning firearms.
IV. Congressional Budget Office Cost Estimate
The Committee sets forth, with respect to the bill, S. 54,
the following estimate and comparison prepared by the Director
of the Congressional Budget Office under section 402 of the
Congressional Budget Act of 1974:
March 20, 2013.
Hon. Patrick J. Leahy,
Chairman, Committee on the Judiciary,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 54, the Stop Illegal
Trafficking in Firearms Act of 2013.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Mark
Grabowicz.
Sincerely,
Douglas W. Elmendorf.
Enclosure.
S. 54--Stop Illegal Trafficking in Firearms Act of 2013
CBO estimates that implementing S. 54 would have no
significant cost to the federal government. Enacting the bill
could affect direct spending and revenues; therefore, pay-as-
you-go procedures apply. However, CBO estimates that any
effects would be insignificant for each year.
S. 54 would establish new federal crimes, expand or modify
existing crimes, and increase penalties for offenses related to
firearms trafficking. The bill would specifically ban the
purchase of firearms on behalf of individuals who are
prohibited from buying or possessing a firearm (known as
``straw purchases''). As a result, the government might be able
to pursue cases that it otherwise would not be able to
prosecute. CBO expects that S. 54 would apply to a relatively
small number of additional offenders, however, so any increase
in costs for law enforcement, court proceedings, or prison
operations would not be significant. Any such costs would be
subject to the availability of appropriated funds.
Because those prosecuted and convicted under S. 54 could be
subject to criminal fines, the federal government might collect
additional fines if the legislation is enacted. Criminal fines
are deposited as revenues in the Crime Victims Fund and later
spent. CBO expects that any additional revenues and direct
spending would not be significant because of the relatively
small number of cases likely to be affected.
S. 54 contains no intergovernmental mandates as defined in
the Unfunded Mandates Reform Act (UMRA). S. 54 would impose a
private-sector mandate, as defined in UMRA, by banning the
purchase of firearms under certain conditions. CBO expects that
relatively few transactions would become unlawful under the
bill. Therefore, CBO estimates that the cost, if any, of
complying with the mandate would be minimal and would fall well
below the annual threshold for private-sector mandates ($150
million in 2013, adjusted annually for inflation).
The CBO staff contacts for this estimate are Mark
Grabowicz, for federal costs, and Paige Piper/Bach, for impacts
on the private sector. The estimate was approved by Theresa
Gullo, Deputy Assistant Director for Budget Analysis.
V. Regulatory Impact Evaluation
In compliance with rule XXVI of the Standing Rules of the
Senate, the Committee finds that no significant regulatory
impact will result from the enactment of S. 54.
VI. Conclusion
Straw purchasing and firearms trafficking contribute to
violent crime across the United States, yet no existing Federal
law specifically targets these practices. Law enforcement has
complained for years that current laws are insufficient and new
tools are needed to combat sophisticated trafficking
organizations. The Stop Illegal Trafficking in Firearms Act is
a bipartisan bill that gives law enforcement the tools it needs
to address these issues, while ensuring that innocent transfers
remain legal. The Committee believes that Congress should come
together to pass this vital legislation.
VII. Additional and Minority Views
----------
ADDITIONAL VIEWS FROM SENATOR GRASSLEY
Federal legislation addressing straw purchasing and gun
trafficking will help strengthen efforts to combat illicit
firearms.
When I conducted my oversight of the Justice Department's
failed Operation Fast and Furious, I was told by whistleblowers
that there were gaps in federal law concerning straw purchasers
that should be addressed. And I agree.
As originally introduced, S. 54 contained no trafficking
provisions. And it was far broader than the bill the Committee
reported. For instance, it would have prohibited with minor
exceptions all purchases of firearms by a person on behalf of
someone else. That would have led to criminal liability for
law-abiding gun owners, severely limited private sales of
firearms, and destroyed legitimate business operations.
Fortunately, during the time that the Committee considered the
bill, Chairman Leahy adopted many, although not all, of my
requested changes to the bill. These changes made the bill
better and reduced the negative side effects of previous
versions.
At the same time, the bill was broadened to include
prohibitions on gun trafficking that Senator Gillibrand had
originally proposed. In my view, that bill as introduced also
raised significant concerns. I asked Senator Gillibrand to make
changes to her bill as well, some of which were the same as I
raised with regard to S. 54. The sponsors must have believed
that these changes improved the bills because so many were
included in the combined bill that the Committee reported. It
is worth describing some of the many changes that have been
made.
As introduced, the trafficking bill would have made a
federal crime of transporting two or more guns if the person
knew that the result would be a violation of state or local
law. That would have given states and localities a one-way
incentive to add new gun control measures and foist the cost of
prosecution and incarceration on the federal government. It
also would have created for the first time a situation in which
violation of a state criminal law was an element of a federal
offense. Similar problems arose with respect to language in the
original S. 54. All of that language from both the trafficking
and straw purchasing bills has been removed.
For the trafficking bill, I requested major and minor
drafting suggestions, including clarifying what intent was
necessary to commit the crime, harmonizing penalties, changing
the gift exception, altering the directive for the Sentencing
Commission, and others.
For the straw purchasing bill, it is now directed only at
straw purchasers, not all transfers on behalf of another. This
allows people to buy for people as part of a legitimate
business. It preserves private sales. Now the bill is directed
to actual straw purchasers: those who purchase a gun on behalf
of a prohibited person. And changes were made to the penalties
the bill would impose. Language regarding sales to persons who
do not reside in a state was revised at my suggestion. Language
was removed concerning materiality of false statements on the
forms. Rules for purchases from licensed dealers were separated
from those for private sales. Unlike the original S. 54, the
bill is now limited to engaging indirectly in conduct that is
already illegal. It expressly tracks the language of current
law in many respects. As a result of all these changes, the
rights of law-abiding citizens are far more protected in ways
that were not the case in either the original straw purchasing
bill or the original trafficking bill.
With these positive changes, including inclusion of an
amendment of mine that I will describe below, I voted to report
this bill to the full Committee.
At the same time that I announced my willingness to report
the bill, I noted that a number of Committee members believe
that the bill needs more work before the Senate considers it. I
myself have concerns regarding penalties the bill imposes
compared with penalties for existing crimes, as well as
concerns that the bill may establish traps for the unwary but
law-abiding citizen. At the Committee markup, Chairman Leahy
promised to work with me to address my concerns. Based on that
understanding, and the adoption of my amendment, I voted to
report the bill to the full Senate.
As part of my investigation into the Justice Department's
flawed Operation Fast & Furious, an operation where nearly
2,000 firearms were sold to straw purchasers without plans to
interdict or disrupt the firearms from falling into the wrong
hands, we learned that the tactics used by the ATF were
disclosed to the Assistant Attorney General for the Criminal
Division, prior to their use. Specifically, we learned that the
tactics used by the ATF in this flawed operation were disclosed
to the Assistant Attorney General for the Criminal Division as
part of wiretap applications. Those applications contained a
detailed description of these flawed tactics of letting guns
walk from gun dealers, into the hands of known or suspected
straw purchasers. We later learned through interviews and
public testimony from others, this information was provided to
the Assistant Attorney General, Lanny A. Breuer.
The applications were signed by various Deputies of the
Assistant Attorney General. These deputies claimed they were
unaware of the tactics because signing these applications was a
formality. They claimed they didn't understand that they were
explicitly authorizing the risky tactics--even though field
level supervisors through Main Justice were on board. This
apparent lack of understanding by senior leadership about the
risky strategies employed by the ATF represents a major failure
at the Justice Department. It has cost the lives of at least
one Federal agent, Border Patrol Agent Brian Terry, and others
in violence throughout Mexico. Given the volume of firearms
that were allowed to ``walk'' by the ATF, nearly 2,000, we
won't know the true human cost of this failure and the
countless victims it caused for years to come. A failure of
this magnitude should never be repeated and it is our duty to
expressly prohibit the Justice Department from conducting
future operations that employ similar tactics to those used in
Fast & Furious.
To correct this, I offered an amendment at mark-up to
provide reasonable limitations on the conduct of the Justice
Department to prevent future operations of this sort. My
amendment would require that the Attorney General, Deputy
Attorney General, or Assistant Attorney General for the
Criminal Division sign off on law enforcement operations where
federal firearms licensees are directed or enticed into selling
firearms to individuals the Justice Department believes are
purchasing guns on behalf of another for illegal purposes.
This amendment would ensure better communication by
requiring explicit written authorization for these types of
tactics. It also requires that in these instances, the Justice
Department have a plan that includes sufficient safeguards to
prevent firearms from being transferred to third parties
without reasonable steps for law enforcement to interdict the
firearms. Operations with these types of tactics and risks
should be signed off on at the highest level to ensure
appropriate safeguards exist to prevent guns from walking.
My amendment provides a modest limitation to Justice
Department operations, not by specifically limiting conduct,
but by requiring approval from political appointees who should
be held accountable for authorizing risky operations. If the
Government is going to employ these types of tactics--and they
shouldn't--at the least, the Department owes the American
people an understanding of how these tactics came to be
approved. This is a modest amendment designed to keep
operational flexibility at the Department, provided senior
officials acknowledge the tactics, approve them, and can be
held responsible should the tactics fail. It is important and
the Committee's vote to adopt it unanimously--despite the vocal
opposition of the Justice Department--shows it.
Despite the adoption of my amendment, I continue to have
reservations concerning the bill. Unless my concerns are fully
resolved when S. 54 is considered by the full Senate, I will
not vote for final passage of the bill. I reserve the right to
support amendments on the floor that I believe would improve
the bill. And I also reserve my right to oppose the bill when
the full Senate considers it if amendments are added that I
cannot support.
Nonetheless, I continue to believe that gun trafficking and
straw purchasing are serious crimes that federal law does not
adequately address. I very much hope that the process of
improving the bill will continue when the full Senate considers
S. 54.
Chuck Grassley.
MINORITY VIEWS FROM SENATORS HATCH, SESSIONS, GRAHAM, CORNYN, LEE,
CRUZ, AND FLAKE
In response to the tragic shooting in Newtown, Connecticut,
the President proposed a plan calling for new gun laws that
impose serious penalties for straw purchasing and gun
trafficking. All members of the Committee agree straw
purchasing and gun trafficking are serious problems. However,
we cannot support S. 54 because it is not tailored to suit the
needs of law enforcement and unnecessarily infringes on the
constitutional rights of law-abiding citizens. The bill creates
new categories of persons prohibited from being sold a firearm
and establishes a number of vague new federal criminal
offenses, the potentially far-reaching consequences of which
are unclear.
As the majority views note, existing gun laws do not
specifically prohibit the act of buying a firearm on behalf of
another. But, current law does prohibit making a material false
statement in connection with the purchase of a firearm from a
federal firearm licensee (FFL) or making a false or fictitious
oral or written statement, including stating you are the
``actual buyer'' rather than ``acquiring the firearm(s) on
behalf of another person,'' or furnishing any false
identification meant to deceive an FFL in connection with the
purchase of a firearm.\1\ It is also unlawful for any person to
sell a firearm to a prohibited person, for a prohibited person
to possess a firearm, and for a person to transfer a firearm
knowing it will be used to commit a crime of violence or drug
trafficking crime.\2\
---------------------------------------------------------------------------
\1\18 U.S.C. Sec. 924(a)(1)(A); 18 U.S.C. Sec. 922(a)(6).
\2\18 U.S.C. Sec. 922(d); 18 U.S.C. Sec. 922(g); 18 U.S.C.
Sec. 924(h).
---------------------------------------------------------------------------
This bill creates a new category of prohibited people--
those who intend to break the law, but have not done so yet and
may never act. Thus, this bill would make it illegal to
purchase a firearm for a person who intends to sell or dispose
of the firearm or ammunition to a prohibited person, or who
intends to use, possess, or sell the firearm in furtherance of
a crime of violence or drug trafficking offense, or who intends
to export the firearm in violation of law. In current law, all
of the existing classes of ``prohibited persons'' are
categorized as such because they are capable of being
identified in an objective manner based on their actions.
Holding the purchaser of a firearm, who later resells it,
criminally liable for the future potential actions of a future
buyer is too attenuated. To be sure, it is the seller's
responsibility to reasonably know whether the person who seeks
to purchase a firearm is prohibited from doing so under the
law. However, it is dangerous to extend criminal liability to a
seller of a firearm based on the subjective intent of the non-
prohibited person who seeks to purchase a firearm with the
intent to transfer it to someone else who may commit a crime.
Under this bill, the seller has a duty to accurately judge the
intent of the purchaser regarding the yet unaccomplished acts
of another.
According to the Bureau of Alcohol, Tobacco, Firearms, and
Explosives (ATF), in 2011, the average time between the initial
purchase of a firearm and the recovery of that firearm in a
crime was more than 11 years.\3\ Judging whether the actual
purchaser intends to use the firearm in furtherance of a crime
of violence is difficult enough, but this bill goes a step
further by asking a seller to judge whether the purchaser
intends to sell the gun to another person who will then use it
in a crime of violence or drug trafficking crime at some point
in the future. The connection is far too attenuated to justify
criminal liability on its account.
---------------------------------------------------------------------------
\3\ATF, Firearms Trace Data--2011, http://www.atf.gov/statistics/
trace-data/2011-trace-data.html
---------------------------------------------------------------------------
Similarly, the bill's raffle exception is not clear with
respect to who would be liable for the purchase of a weapon
that is given to a raffle or contest winner who is subsequently
found to be a prohibited person. As the language of the
exception states, the raffle, contest, or auction must be
sponsored by a national, State, or local organization or
association. As Senator Cornyn stated at the Executive Business
Meeting, this bill could ensnare an innocent purchaser of a
firearm who is merely a volunteer or employee of the
organization and who plays no role in transferring the firearm
to the raffle winner. According to the bill, this innocent
volunteer or employee could be liable for purchasing a firearm
for the winner of a raffle--who at the time of the purchase is
unknown--and who is suffering from a mental disorder or is a
convicted felon. The confusion surrounding this exception is
exacerbated when one considers the penalty of forfeiture that
would accompany a violation by someone who was not connected
with the actual transfer of the firearm to the raffle winner.
Another concern is some of the penalties in this bill are
unnecessarily high and some provisions will create confusion in
the code. For example, a violation of Section 932(b)(J) carries
a maximum sentence of 15 years while Section 932(c)(2) carries
a 25 year maximum penalty for the same crime, transferring the
firearm with reasonable cause to believe it will be used in a
crime of violence. While it is important to send a message to
criminals that violations of federal gun laws will have serious
consequences, it is widely known that most straw purchasers do
not have criminal records and likely would be deterred by
current sentencing levels if the laws were actually being
enforced. This Committee has held three hearings on the issue
of gun violence during which we heard expert testimony stating
the lack of prosecutions for attempts to purchase a gun on
behalf of a prohibited person is a major problem. The
Department of Justice argues it needs better tools to address
these problems because they do not have enough resources to
prosecute ``lie and buy'' offenses, which are perceived as
``paperwork'' violations and have low jury appeal. However,
increasing statutory maximums to levels that far surpass
current, unenforced statutory levels does not achieve the
stated goal. Penalties are irrelevant if criminals are not
prosecuted. It also seems incongruous to increase the maximum
sentence for someone who sells a firearm to a prohibited
person, such as a drug user, when some are contemplating
legislation that would circumvent mandatory minimums for those
who use guns in drug trafficking crimes.
Additionally, the bill creates a new federal firearms
trafficking crime that carries a maximum sentence of 25 years
if a violation is committed by a person who acts in concert
with five or more persons and occupies a position of leadership
in the group. We commend the effort to target organizations
engaged in gun trafficking; however, designating a set number
of persons with whom an organizer must act in concert to
receive an increased sentence runs the risk of making the
increased penalty irrelevant. Arbitrarily setting the number of
persons who must act in concert at five could serve to
encourage organizations to commit gun trafficking operations in
smaller groups to evade the higher penalty.
We support the concept of legislation that directly
addresses the issue of straw purchasing and trafficking.
However, we cannot support S. 54, as it is needlessly
complicated and expands the scope of the Committee's efforts
past the issue of straw purchasing to include the
criminalization of acts that should not be criminal. This bill
does not narrowly address the existing ``lie and buy''
provisions. This bill expands the reach of federal gun laws by
prohibiting the purchase of a firearm on behalf of not only a
prohibited person, but any person. It is no consolation to the
American people that the Department of Justice ``assures''
Congress it will not use these provisions to target law-abiding
citizens who are ``inadvertently'' swept up by the unintended
consequences of this bill, particularly when the only stated
justification for that policy is a lack of resources at the
Department.
Orrin G. Hatch.
Jeff Sessions.
Lindsey Graham.
John Cornyn.
Michael S. Lee.
Ted Cruz.
Jeff Flake.
VIII. Changes to Existing Law Made by the Bill, As Reported
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
S.54, as reported, are shown as follows (existing law proposed
to be omitted is enclosed in black brackets, new matter is
printed in italic, and existing law in which no change is
proposed is shown in roman):
UNITED STATES CODE
TITLE 18--CRIMES AND CRIMINAL PROCEDURE
* * * * * * *
CHAPTER 44--FIREARMS
* * * * * * *
Sec. 921. Definitions
Sec. 922. Unlawful acts
Sec. 923. Licensing
Sec. 924. Penalties
Sec. 925. Exceptions: Relief from disabilities
Sec. 925A. Remedy for erroneous denial of firearm
Sec. 926. Rules and regulations
Sec. 926A. Interstate transportation of firearms
Sec. 926B. Carrying of concealed firearms by qualified law enforcement
officers
Sec. 926C. Carrying of concealed firearms by qualified retired law
enforcement officers
Sec. 927. Effect on State law
Sec. 928. Separability
Sec. 929. Use of restricted ammunition
Sec. 930. Possession of firearms and dangerous weapons in Federal
facilities
Sec. 931. Prohibition on purchase, ownership, or possession of body
armor by violent felons
Sec. 932. Straw purchasing of firearms
Sec. 933. Trafficking in firearms
Sec. 934. Forfeiture and fines
* * * * * * *
SEC. 922. UNLAWFUL ACTS
* * * * * * *
(d) It shall be unlawful for any person to sell or
otherwise dispose of any firearm or ammunition to any person
knowing or having reasonable cause to believe that such
person--
(1) is under indictment for, or has been convicted in
any court of, a crime punishable by imprisonment for a
term exceeding one year;
(2) is a fugitive from justice;
(3) is an unlawful user of or addicted to any
controlled substance (as defined in section 102 of the
Controlled Substances Act (21 U.S.C. 802));
(4) has been adjudicated as a mental defective or has
been committed to any mental institution;
(5) who, being an alien--
(A) is illegally or unlawfully in the United
States; or
(B) except as provided in subsection (y)(2),
has been admitted to the United States under a
nonimmigrant visa (as that term is defined in
section 101(a)(26) of the Immigration and
Nationality Act (8 U.S.C. 1101 (a)(26)));
(6) who has been discharged from the Armed Forces
under dishonorable conditions;
(7) who, having been a citizen of the United States,
has renounced his citizenship;
(8) is subject to a court order that restrains such
person from harassing, stalking, or threatening an
intimate partner of such person or child of such
intimate partner or person, or engaging in other
conduct that would place an intimate partner in
reasonable fear of bodily injury to the partner or
child, except that this paragraph shall only apply to a
court order that--
(A) was issued after a hearing of which such
person received actual notice, and at which
such person had the opportunity to participate;
and
(B) (i) includes a finding that such person
represents a credible threat to the physical
safety of such intimate partner or child; [or]
(ii) by its terms explicitly prohibits the
use, attempted use, or threatened use of
physical force against such intimate partner or
child that would reasonably be expected to
cause bodily injury; or
(9) has been convicted in any court of a misdemeanor
crime of domestic violence. This subsection shall not
apply with respect to the sale or disposition of a
firearm or ammunition to a licensed importer, licensed
manufacturer, licensed dealer, or licensed collector
who pursuant to subsection (b) of section 925 of this
chapter is not precluded from dealing in firearms or
ammunition, or to a person who has been granted relief
from disabilities pursuant to subsection (c) of section
925 of this chapter[.];
(10) intends to sell or otherwise dispose of the
firearm or ammunition to a person described in any of
paragraphs (1) through (9); or
(11) intends to sell or otherwise dispose of the
firearms or ammunition in furtherance of a crime of
violence or drug trafficking offense or to export the
firearm or ammunition in violation of law.
This subsection shall not apply with respect to the sale or
disposition of a firearm or ammunition to a licensed importer,
licensed manufacturer, licensed dealer, or licensed collector
who pursuant to subsection (b) of section 925 is not precluded
from dealing in firearms or ammunition, or to a person who has
been granted relief from disabilities pursuant to subsection
(c) of section 925.
* * * * * * *
SEC. 924. PENALTIES
(a) * * *
(2) Whoever knowingly violates subsection (a)(6),
[(d), (g),] (h), (i), (j), or (o) of section 922 shall
be fined as provided in this title, imprisoned not more
than 10 years, or both.
* * * * * * *
(8) Whoever knowingly violates subsection (d) or (g)
of section 922 shall be fined under this title,
imprisoned not more than 15 years, or both.
* * * * * * *
[(h) Whoever knowingly transfers a firearm, knowing that
such firearm will be used to commit a crime of violence (as
defined in subsection (c)(3)) or drug trafficking crime (as
defined in subsection (c)(2)) shall be imprisoned not more than
10 years, fined in accordance with this title, or both.]
(h)(1) Whoever knowingly receives or transfers a firearm or
ammunition, or attempts or conspires to do so, knowing or
having reasonable cause to believe that such firearm or
ammunition will be used to commit a crime of violence (as
defined in subsection (c)(3)), a drug trafficking crime (as
defined in subsection (c)(2)), or a crime under the Arms Export
Control Act (22 U.S.C. 2751 et seq.), the International
Emergency Economic Powers Act (50 U.S.C. 1701 et seq.), the
Foreign Narcotics Kingpin Designation Act (21 U.S.C. 1901 et
seq.), or section 212(a)(2)(C) of the Immigration and
Nationality Act (8 U.S.C. 1182(a)(2)(C)) shall be imprisoned
not more than 25 years, fined in accordance with this title, or
both.
(2) No term of imprisonment imposed on a person under this
subsection shall run concurrently with any term of imprisonment
imposed on the person under section 932.
* * * * * * *
[(k) A person who, with intent to engage in or to promote
conduct that--
[(1) is punishable under the Controlled Substances
Act (21 U.S.C. 801 et seq.), the Controlled Substances
Import and Export Act (21 U.S.C. 951 et seq.), or
chapter 705 of title 46;
[(2) violates any law of a State relating to any
controlled substance (as defined in section 102 of the
Controlled Substances Act, 21 U.S.C. 802); or
[(3) constitutes a crime of violence (as defined in
subsection (c)(3)), smuggles or knowingly brings into
the United States a firearm, or attempts to do so,
shall be imprisoned not more than 10 years, fined under
this title, or both.]
(k)(1) A person who, with intent to engage in or to promote
conduct that--
(A) is punishable under the Controlled Substances Act
(21 U.S.C. 801 et seq.), the Controlled Substances
Import and Export Act (21 U.S.C. 951 et seq.), or
chapter 705 of title 46;
(B) violates any law of a State relating to any
controlled substance (as defined in section 102 of the
Controlled Substances Act, 21 U.S.C. 802); or
(C) constitutes a crime of violence (as defined in
subsection (c)(3)), smuggles or knowingly brings into
the United States, a firearm or ammunition, or attempts
or conspires to do so, shall be imprisoned not more
than 15 years, fined under this title, or both.
(2) A person who, with intent to engage in or to promote
conduct that--
(A) would be punishable under the Controlled
Substances Act (21 U.S.C. 801 et seq.), the Controlled
Substances Import and Export Act (21 U.S.C. 951 et
seq.), or chapter 705 of title 46, if the conduct had
occurred within the United States; or
(B) would constitute a crime of violence (as defined
in subsection (c)(3)) for which the person may be
prosecuted in a court of the United States, if the
conduct had occurred within the United States, smuggles
or knowingly takes out of the United States, a firearm
or ammunition, or attempts or conspires to do so, shall
be imprisoned not more than 15 years, fined under this
title, or both.
* * * * * * *
SEC. 932. STRAW PURCHASING OF FIREARMS
(a) For purposes of this section--
(1) the term ``crime of violence'' has the meaning
given that term in section 924(c)(3);
(2) the term ``drug trafficking crime'' has the
meaning given that term in section 924(c)(2); and
(3) the term ``purchase'' includes the receipt of any
firearm by a person who does not own the firearm--
(A) by way of pledge or pawn as security for
the payment or repayment of money; or
(B) on consignment.
(b) It shall be unlawful for any person (other than a
licensed importer, licensed manufacturer, licensed collector,
or licensed dealer) to knowingly purchase, or attempt or
conspire to purchase, any firearm in or otherwise affecting
interstate or foreign commerce--
(1) from a licensed importer, licensed manufacturer,
licensed collector, or licensed dealer for, on behalf
of, or at the request or demand of any other person,
known or unknown; or
(2) from any person who is not a licensed importer,
licensed manufacturer, licensed collector, or licensed
dealer for, on behalf of, or at the request or demand
of any other person, known or unknown, knowing or
having reasonable cause to believe that such other
person--
(A) is under indictment for, or has been
convicted in any court of, a crime punishable
by imprisonment for a term exceeding 1 year;
(B) is a fugitive from justice;
(C) is an unlawful user of or addicted to any
controlled substance (as defined in section 102
of the Controlled Substances Act (21 U.S.C.
802));
(D) has been adjudicated as a mental
defective or has been committed to any mental
institution;
(E) is an alien who--
(i) is illegally or unlawfully in the
United States; or
(ii) except as provided in section
922(y)(2), has been admitted to the
United States under a nonimmigrant visa
(as that term is defined in section
101(a)(26) of the Immigration and
Nationality Act (8 U.S.C. 1101(a)(26));
(F) has been discharged from the Armed Forces
under dishonorable conditions;
(G) having been a citizen of the United
States, has renounced his or her citizenship;
(H) is subject to a court order that
restrains such person from harassing, stalking,
or threatening an intimate partner of such
person or child of such intimate partner or
person, or engaging in other conduct that would
place an intimate partner in reasonable fear of
bodily injury to the partner or child, except
that this subparagraph shall only apply to a
court order that--
(i) was issued after a hearing of
which such person received actual
notice, and at which such person had
the opportunity to participate; and
(ii)(I) includes a finding that such
person represents a credible threat to
the physical safety of such intimate
partner or child; or
(II) by its terms explicitly
prohibits the use, attempted use, or
threatened use of physical force
against such intimate partner or child
that would reasonably be expected to
cause bodily injury;
(I) has been convicted in any court of a
misdemeanor crime of domestic violence;
(J) intends to--
(i) use, carry, possess, or sell or
otherwise dispose of the firearm or
ammunition in furtherance of a crime of
violence or drug trafficking crime; or
(ii) export the firearm or ammunition
in violation of law;
(K)(i) does not reside in any State; and
(ii) is not a citizen of the United States;
or
(L) intends to sell or otherwise dispose of
the firearm or ammunition to a person described
in any of subparagraphs (A) through (K).
(c)(1) Except as provided in paragraph (2), any person who
violates subsection (b) shall be fined under this title,
imprisoned for not more than 15 years, or both.
(2) If a violation of subsection (b) is committed knowing
or with reasonable cause to believe that any firearm involved
will be used to commit a crime of violence, the person shall be
sentenced to a term of imprisonment of not more than 25 years.
(d) Subsection (b)(1) shall not apply to any firearm that
is lawfully purchased by a person--
(1) to be given as a bona fide gift to a recipient
who provided no service or tangible thing of value to
acquire the firearm, unless the person knows or has
reasonable cause to believe such recipient is
prohibited by Federal law from possessing, receiving,
selling, shipping, transporting, transferring, or
otherwise disposing of the firearm; or
(2) to be given to a bona fide winner of an organized
raffle, contest, or auction conducted in accordance
with law and sponsored by a national, State, or local
organization or association, unless the person knows or
has reasonable cause to believe such recipient is
prohibited by Federal law from possessing, purchasing,
receiving, selling, shipping, transporting,
transferring, or otherwise disposing of the firearm.
SEC. 933. TRAFFICKING IN FIREARMS
(a) It shall be unlawful for any person to--
(1) ship, transport, transfer, cause to be
transported, or otherwise dispose of 2 or more firearms
to another person in or otherwise affecting interstate
or foreign commerce, if the transferor knows or has
reasonable cause to believe that the use, carrying, or
possession of a firearm by the transferee would be in
violation of, or would result in a violation of, any
Federal law punishable by a term of imprisonment
exceeding 1 year;
(2) receive from another person 2 or more firearms in
or otherwise affecting interstate or foreign commerce,
if the recipient knows or has reasonable cause to
believe that such receipt would be in violation of, or
would result in a violation of, any Federal law
punishable by a term of imprisonment exceeding 1 year;
or
(3) attempt or conspire to commit the conduct
described in paragraph (1) or (2).
(b)(1) Except as provided in paragraph (2), any person who
violates subsection (a) shall be fined under this title,
imprisoned for not more than 15 years, or both.
(2) If a violation of subsection (a) is committed by a
person in concert with 5 or more other persons with respect to
whom such person occupies a position of organizer, leader,
supervisor, or manager, the person shall be sentenced to a term
of imprisonment of not more than 25 years.
SEC. 934. FORFEITURE AND FINES
(a)(1) Any person convicted of a violation of section 932
or 933 shall forfeit to the United States, irrespective of any
provision of State law--
(A) any property constituting, or derived from, any
proceeds the person obtained, directly or indirectly,
as the result of such violation; and
(B) any of the person's property used, or intended to
be used, in any manner or part, to commit, or to
facilitate the commission of, such violation.
(2) The court, in imposing sentence on a person convicted
of a violation of section 932 or 933, shall order, in addition
to any other sentence imposed pursuant to section 932 or 933,
that the person forfeit to the United States all property
described in paragraph (1).
(b) A defendant who derives profits or other proceeds from
an offense under section 932 or 933 may be fined not more than
the greater of--
(1) the fine otherwise authorized by this part; and
(2) the amount equal to twice the gross profits or
other proceeds of the offense under section 932 or 933.
* * * * * * *
CHAPTER 58--UNITED STATES SENTENCING COMMISSION
* * * * * * *
SEC. 994. DUTIES OF THE COMMISSION
* * * * * * *
DIRECTIVE TO SENTENCING COMMISSION.--Pursuant to its
authority under section 994 of title 28, United States Code,
and in accordance with this section, the United States
Sentencing Commission shall review and amend its guidelines and
policy statements to ensure that persons convicted of an
offense under section 932 or 933 of title 18, 1 United States
Code and other offenses applicable to the straw purchases and
firearms trafficking of firearms are subject to increased
penalties in comparison to those currently provided by the
guidelines and policy statements for such straw purchasing and
firearms trafficking offenses. The Commission shall also review
and amend its guidelines and policy statements to reflect the
intent of Congress that a person convicted of an offense under
section 932 or 933 of title 18, United States Code, who is
affiliated with a gang, cartel, organized crime ring, or other
such enterprise should be subject to higher penalties than an
otherwise unaffiliated individual.
* * * * * * *
CHAPTER 95--RACKETEERING
* * * * * * *
SEC. 1956. LAUNDERING OF MONETARY INSTRUMENTS
* * * * * * *
(c) As used in this section--
* * * * * * *
(7) the term ``specified unlawful activity'' means--
* * * * * * *
(D) an offense under section 32 (relating to
the destruction of aircraft), section 37
(relating to violence at international
airports), section 115 (relating to
influencing, impeding, or retaliating against a
Federal official by threatening or injuring a
family member), section 152 (relating to
concealment of assets; false oaths and claims;
bribery), section 175c (relating to the variola
virus), section 215 (relating to commissions or
gifts for procuring loans), section 351
(relating to congressional or Cabinet officer
assassination), any of sections 500 through 503
(relating to certain counterfeiting offenses),
section 513 (relating to securities of States
and private entities), section 541 (relating to
goods falsely classified), section 542
(relating to entry of goods by means of false
statements), section 545 (relating to smuggling
goods into the United States), section 549
(relating to removing goods from Customs
custody), section 554 (relating to smuggling
goods from the United States), section 555
(relating to border tunnels), section 641
(relating to public money, property, or
records), section 656 (relating to theft,
embezzlement, or misapplication by bank officer
or employee), section 657 (relating to lending,
credit, and insurance institutions), section
658 (relating to property mortgaged or pledged
to farm credit agencies), section 666 (relating
to theft or bribery concerning programs
receiving Federal funds), section 793, 794, or
798 (relating to espionage), section 831
(relating to prohibited transactions involving
nuclear materials), section 844 (f) or (i)
(relating to destruction by explosives or fire
of Government property or property affecting
interstate or foreign commerce), section 875
(relating to interstate communications),
section 922 (l) (relating to the unlawful
importation of firearms), [section 924(n)]
section 924(n), 932, or 933 (relating to
firearms trafficking), section 956 (relating to
conspiracy to kill, kidnap, maim, or injure
certain property in a foreign country), section
1005 (relating to fraudulent bank entries),
1006 (relating to fraudulent Federal credit
institution entries), 1007 (relating to Federal
Deposit Insurance transactions), 1014 (relating
to fraudulent loan or credit applications),
section 1030 (relating to computer fraud and
abuse), 1032 (relating to concealment of assets
from conservator, receiver, or liquidating
agent of financial institution), section 1111
(relating to murder), section 1114 (relating to
murder of United States law enforcement
officials), section 1116 (relating to murder of
foreign officials, official guests, or
internationally protected persons), section
1201 (relating to kidnaping), section 1203
(relating to hostage taking), section 1361
(relating to willful injury of Government
property), section 1363 (relating to
destruction of property within the special
maritime and territorial jurisdiction), section
1708 (theft from the mail), section 1751
(relating to Presidential assassination),
section 2113 or 2114 (relating to bank and
postal robbery and theft), section 2252A
(relating to child pornography) where the child
pornography contains a visual depiction of an
actual minor engaging in sexually explicit
conduct, section 2260 (production of certain
child pornography for importation into the
United States), section 2280 (relating to
violence against maritime navigation), section
2281 (relating to violence against maritime
fixed platforms), section 2319 (relating to
copyright infringement), section 2320 (relating
to trafficking in counterfeit goods and
services), section 2332 (relating to terrorist
acts abroad against United States nationals),
section 2332a (relating to use of weapons of
mass destruction), section 2332b (relating to
international terrorist acts transcending
national boundaries), section 2332g (relating
to missile systems designed to destroy
aircraft), section 2332h (relating to
radiological dispersal devices), section 2339A
or 2339B (relating to providing material
support to terrorists), section 2339C (relating
to financing of terrorism), or section 2339D
(relating to receiving military-type training
from a foreign terrorist organization) of this
title, section 46502 of title 49, United States
Code, a felony violation of the Chemical
Diversion and Trafficking Act of 1988 (relating
to precursor and essential chemicals), section
590 of the Tariff Act of 1930 (19 U.S.C. 1590)
(relating to aviation smuggling), section 422
of the Controlled Substances Act (relating to
transportation of drug paraphernalia), section
38 (c) (relating to criminal violations) of the
Arms Export Control Act, section 11 (relating
to violations) of the Export Administration Act
of 1979, section 206 (relating to penalties) of
the International Emergency Economic Powers
Act, section 16 (relating to offenses and
punishment) of the Trading with the Enemy Act,
any felony violation of section 15 of the Food
and Nutrition Act of 2008 (relating to
supplemental nutrition assistance program
benefits fraud) involving a quantity of
benefits having a value of not less than
$5,000, any violation of section 543(a)(1) of
the Housing Act of 1949 (relating to equity
skimming), any felony violation of the Foreign
Agents Registration Act of 1938, any felony
violation of the Foreign Corrupt Practices Act,
or section 92 of the Atomic Energy Act of 1954
(42 U.S.C. 2122) (relating to prohibitions
governing atomic weapons) environmental crimes.
* * * * * * *
CHAPTER 96--RACKETEER INFLUENCED AND CORRUPT ORGANIZATIONS
* * * * * * *
SEC. 1961. DEFINITIONS
* * * * * * *
(1) ``Racketeering Activity'' means--
* * * * * * *
(B) any act which is indictable under any of the
following provisions of title 18, United States Code:
Section 201 (relating to bribery), section 224
(relating to sports bribery), sections 471, 472, and
473 (relating to counterfeiting), section 659 (relating
to theft from interstate shipment) if the act
indictable under section 659 is felonious, section 664
(relating to embezzlement from pension and welfare
funds), sections 891-894 (relating to extortionate
credit transactions), section 932 (relating to straw
purchasing), section 933 (relating to trafficking in
firearms), section 1028 (relating to fraud and related
activity in connection with identification documents),
section 1029 (relating to fraud and related activity in
connection with access devices), section 1084 (relating
to the transmission of gambling information), section
1341 (relating to mail fraud), section 1343 (relating
to wire fraud), section 1344 (relating to financial
institution fraud), section 1425 (relating to the
procurement of citizenship or nationalization
unlawfully), section 1426 (relating to the reproduction
of naturalization or citizenship papers), section 1427
(relating to the sale of naturalization or citizenship
papers), sections 1461-1465 (relating to obscene
matter), section 1503 (relating to obstruction of
justice), section 1510 (relating to obstruction of
criminal investigations), section 1511 (relating to the
obstruction of State or local law enforcement), section
1512 (relating to tampering with a witness, victim, or
an informant), section 1513 (relating to retaliating
against a witness, victim, or an informant), section
1542 (relating to false statement in application and
use of passport), section 1543 (relating to forgery or
false use of passport), section 1544 (relating to
misuse of passport), section 1546 (relating to fraud
and misuse of visas, permits, and other documents),
sections 1581-1592 (relating to peonage, slavery, and
trafficking in persons)., [1] section 1951 (relating to
interference with commerce, robbery, or extortion),
section 1952 (relating to racketeering), section 1953
(relating to interstate transportation of wagering
paraphernalia), section 1954 (relating to unlawful
welfare fund payments), section 1955 (relating to the
prohibition of illegal gambling businesses), section
1956 (relating to the laundering of monetary
instruments), section 1957 (relating to engaging in
monetary transactions in property derived from
specified unlawful activity), section 1958 (relating to
use of interstate commerce facilities in the commission
of murder-for-hire), section 1960 (relating to illegal
money transmitters), sections 2251, 2251A, 2252, and
2260 (relating to sexual exploitation of children),
sections 2312 and 2313 (relating to interstate
transportation of stolen motor vehicles), sections 2314
and 2315 (relating to interstate transportation of
stolen property), section 2318 (relating to trafficking
in counterfeit labels for phone records, computer
programs or computer program documentation or packaging
and copies of motion pictures or other audiovisual
works), section 2319 (relating to criminal infringement
of a copyright), section 2319A (relating to
unauthorized fixation of and trafficking in sound
recordings and music videos of live musical
performances), section 2320 (relating to trafficking in
goods or services bearing counterfeit marks), section
2321 (relating to trafficking in certain motor vehicles
or motor vehicle parts), sections 2341-2346 (relating
to trafficking in contraband cigarettes), sections
2421-24 (relating to white slave traffic), sections
175-178 (relating to biological weapons), sections 229-
229F (relating to chemical weapons), section 831
(relating to nuclear materials),
* * * * * * *
CHAPTER 119--WIRE AND ELECTRONIC COMMUNICATIONS INTERCEPTION AND
INTERCEPTION OF ORAL COMMUNICATIONS
* * * * * * *
SEC. 2516. AUTHORIZATION FOR INTERCEPTION OF WIRE, ORAL, OR ELECTRONIC
COMMUNICATIONS
* * * * * * *
(1)(n) any felony violation of sections 922 [and 924], 924,
932, 933 of title 18, United States Code (relating to
firearms);
* * * * * * *
TITLE 28--JUDICIARY AND JUDICIAL PROCEDURE
* * * * * * *
SEC. 531. LIMITATION ON OPERATIONS BY THE DEPARTMENT OF JUSTICE.
The Department of Justice, and any of its law enforcement
coordinate agencies, shall not conduct any operation where a
Federal firearms licensee is directed, instructed, enticed, or
otherwise encouraged by the Department of Justice to sell a
firearm to an individual if the Department of Justice, or a
coordinate agency, knows or has reasonable cause to believe
that such an individual is purchasing on behalf of another for
an illegal purpose unless the Attorney General, the Deputy
Attorney General, or the Assistant Attorney General for the
Criminal Division personally reviews and approves the
operation, in writing, and determines that the agency has
prepared an operational plan that includes sufficient
safeguards to prevent firearms from being transferred to third
parties without law enforcement taking reasonable steps to
lawfully interdict those firearms.