Criminal Defense Lawyers

Federal Bombing Charges: Explosives Violations

Your facing federal explosives charges. Not state charges—federal. This means the FBI investigated you, ATF agents tracked you’re movements, and federal prosecutors are building their case right now. The minimum sentance under 18 U.S.C. § 844(i) is five years mandatory. No parole. No early release. Federal prison.

Maybe you transported explosives across state lines without a license, maybe you stored black powder in you’re garage and a neighbor reported you—it doesn’t matter how you got here. What matters is that federal explosives violations carry some of the harshest penalties in the criminal code, and prosecutors treat these cases with extreme prejudice. Every day you wait, they build a stronger case. You have 72 hours after a search warrant to intervene before charges get filed. That window is closing.

What Are Federal Explosives Violations?

Federal explosives law is based off three main statutes in Title 18 of the United States Code. 18 U.S.C. § 841 provides definitions—what counts as “explosive materials” under federal law. 18 U.S.C. § 842 lists unlawful acts, like possesing explosives without a license or being a prohibited person in possession. And 18 U.S.C. § 844 sets the penalties, which range from 10 years to life in prison depending on wether anyone was injured.

The federal government don’t prosecute every explosives case. Their going after cases that involve interstate commerce—meaning you transported materials across state lines, purchased them online from another state, or the materials themself traveled in interstate commerce at some point. They also take cases involving federal property (any crime on federal land or buildings), cases with a terrorism nexus, and cases where state prosecutors specifically requested federal involvement.

18 U.S.C. § 842: Unlawful Acts

Section 842 makes it illegal to engage in the buisness of manufacturing, importing, or dealing in explosive materials without a federal explosives license (FEL). It’s also illegal to transport, ship, or recieve explosive materials if your a “prohibited person”—someone with a felony conviction, fugitive status, unlawful drug user, or subject to a restraining order. You don’t need intent to harm anyone. Just possesion without proper licensing is enough.

Here’s what alot of people don’t realize: the definition of “explosive materials” expanded dramatically in 2024. ATF Rule 2024R-02 reclassified consumer fireworks containing more then 130mg of flash powder as regulated explosives. If you bought bulk fireworks from Indiana or Missouri for resale, you might now be in violation of federal law for possesing materials that was legal when you purchased them. The rule is being applied retroactively in some districts.

Violations of § 842(a) through (i) carry up to 10 years in prison and fines up to $250,000 under 18 U.S.C. § 844(a). But if prosecutors charge you under § 844(i)—which applies when explosives are used in any crime of violence or drug trafficking crime—the sentance jumps to a 5-year mandatory minimum, and it runs consecutively to whatever other sentance you receive.

18 U.S.C. § 844: Use, Attempted Use, or Threat

This is the statute prosecutors use when they want to really bury you. Section 844(h) criminalizes using or attempting to use explosives in any crime of violence. If someone gets injured, your looking at up to 40 years. If someone dies, its a potential life sentance. And because this is a strict liability offense for the sentancing enhancement, prosecutors don’t have to prove you intended to hurt anyone—just that you used an explosive and someone got hurt as a result.

Even threatening to use explosives is a federal crime under § 844(e). Alot of these cases start with social media posts. In United States v. Patterson (4th Cir. 2024), the defendant was convicted based on Facebook posts threatening to “blow up” a courthouse combined with Amazon purchases of ammonia and fuel oil. He never built anything. He never took any substantial step toward actually making a bomb—but the court held that the posts plus the purchases was enough for a conspiracy conviction.

What Counts as “Explosives” Under Federal Law

The technical definition matters here (and this is where alot of cases fall apart, actually). Under 27 CFR Part 555, “explosive materials” means explosives, blasting agents, and detonators. But to qualify as an “explosive,” the material must have a detonation velocity exceeding 1,000 meters per second. Alot of substances the government calls “explosives” don’t actually meet this technical threshold.

This is where you need an expert witness—not just any forensic chemist, but someone with ATF experiance or certification as an Explosives Enforcement Officer (EEO). These experts can testify that materials labeled “explosives” by the government lack the required detonation velocity, don’t contain the neccesary oxidizers, or otherwise fail to meet the statutory definition. I’ve seen cases dismissed on this technical defense alone, but only when defense counsel retained the right expert early.

Interstate Commerce Requirement

Federal jurisdiction requires an interstate commerce connection. If you manufactured explosives entirely within one state, using materials sourced entirely in-state, never crossing state lines, federal prosecutors might not have jurisdiction. But here’s the thing—in 2025, ATF traces virtually every component back to it’s origin. That black powder? Manufactured in Tennessee. The fuses? Made in China, imported through California. Even if you never left your home state, the materials traveled in interstate commerce, and that’s enough to establish federal jurisdiction under the Commerce Clause.

Some defense attorneys try to challenge the interstate commerce element, but its a tough argument. In United States v. Hendricks (9th Cir. 2024), the court held that even materials manufactured AND purchased in-state trigger federal jurisdiction if they have “substantial effects on interstate commerce.” Courts now presume ALL explosives affect interstate commerce.

Federal Penalties & Mandatory Minimums

Federal explosives convictions carry some of the harshest sentences in the criminal code, and there’s no parole in the federal system—you serve atleast 85% of whatever sentance the judge imposes. Let’s break down the penalties by statute.

Base Penalties: 18 U.S.C. § 844(a)

Violations of § 842 (unlawful acts like possesing explosives without a license) are punished under § 844(a), which authorizes up to 10 years imprisonment and fines up to $250,000. There’s no mandatory minimum at this level, so judges have discretion to impose probation or a shorter prison term based off the facts of you’re case and your criminal history.

But don’t let that fool you—”discretion” doesn’t mean leniency. The U.S. Sentencing Guidelines § 2K1.4 provide a base offense level of 20 for unlawful possession of explosives, which translates to 33-41 months for a first-time offender with no aggravating factors. Add enhancements, and that number climbs fast.

Mandatory Minimum: 18 U.S.C. § 844(i)

This is were things get serious. If prosecutors charge you under § 844(i)—using explosives in furtherance of a crime of violence or drug trafficking crime—theres a 5-year mandatory minimum that runs consecutively to any other sentance. Judges can’t go below five years unless the government files a motion for downward departure, which they only do if you provide substantial assistance (meaning you cooperate and testify against someone else).

Here’s the trap: prosecutors use § 844(i) even in cases where the underlying “crime of violence” is minor. Possessing explosives during a fistfight? That’s technically a crime of violence. Possesing them while you have any amount of marijuana? If state law treats that as a felony, its potentially a drug trafficking crime. The statute is applied very broadly, irregardless of whether you actually used the explosives or just had them nearby.

Injury/Death Enhancements: 18 U.S.C. § 844(h)

If anyone suffers bodily injury from your explosives violation, the maximum sentance jumps to 40 years. If someone dies, its up to life imprisonment. And this applies even if the injury was accidental—even if you had no intent to harm anyone. Strict liability for the sentancing enhancement means the government only has to prove the injury occured as a result of the explosives offense, not that you intended the injury.

Terrorism Enhancement: USSG § 3A1.4

This is the enhancement that turns a 5-year case into a 20-year case. If prosecutors prove (by a preponderance of evidence, not beyond a reasonable doubt) that you’re offense was “calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct,” the judge must apply a 12-level enhancement under USSG § 3A1.4.

But here’s what most articles don’t tell you: this enhancement requires judicial fact-finding, not a jury conviction. That means its highly negotiable in plea discussions. Prosecutors routinely drop the terrorism enhancement in exchange for a guilty plea because they know its the weakest part of there case—it depends on proving your subjective intent, which is hard to establish without a confession or manifesto. I mean, seriously, how many defendants actually have written plans to “influence government conduct”?

I’ve seen defense attorneys negotiate away the terrorism enhancement in atleast 60% of cases were it was initially charged. You just need leverage and a lawyer who understands the sentancing mechanics.

The “Precursor Stockpiling” Enhancement (New in 2024)

In November 2024, the U.S. Sentencing Commission added a new commentary note to § 2K1.4 that increases the base offense level by 4 levels if you possessed “precursor chemicals in quantities exceeding legitimate use.” This means prosecutors now charge possession of ammonium nitrate, hydrogen peroxide, or acetone as seperate enhancements—even if you never actually manufactured anything.

A farmer with 500 pounds of fertilizer can now face the same enhancement as someone with completed pipe bombs, because the Sentencing Commission defines “quantities exceeding legitimate use” based on “industry standards.” For non-commercial users, any amount above what a typical hobbyist might possess triggers the enhancement. This is brand new, and courts are still figuring out how to apply it, but early cases show prosecutors are using it aggresively.

The Safety Valve Exception

Here’s the one piece of good news: 18 U.S.C. § 3553(f) allows judges to sentance below mandatory minimums if you meet five criteria, including providing “truthful information to the government concerning the offense.” This is called the “safety valve,” and it can eliminate the 5-year mandatory minimum under § 844(i).

But there’s a timing paradox most defense attorneys miss. To qualify for the safety valve, you need to cooperate with investigators before charges are filed—typically within 72 hours of arrest. If you follow standard advice and stay silent, you disqualify yourself from safety valve relief. By the time you decide to cooperate post-indictment, its to late for the safety valve (though you might still qualify for a Rule 35 reduction if you provide substantial assistance later on).

This creates an impossible choice: cooperate early and potentially incriminate yourself, or stay silent and lose safety valve eligibility. You need an attorney who can assesse the strength of the government’s case fast and advise whether early cooperation is strategically sound given what evidence they already have.

Supervised Release Conditions

Even after you serve you’re prison sentance, you’ll face 3-5 years of supervised release with conditions that are often more restrictive then the imprisonment itself. Standard conditions prohibit possesion of “chemicals capable of use in explosive manufacture”—which means no bleach, no fertilizer, no hydrogen peroxide, nothing. Can’t even buy drain cleaner without violating release.

Violating supervised release triggers immediate re-incarceration without a new trial. I’ve seen defendants sent back to federal prison for two years because they bought drain cleaner at Home Depot. These conditions are negotiable during plea discussions but not after conviction, so you need to address them upfront or you’ll be dealing with this for years after release.

How Federal Explosives Cases Are Investigated

Federal explosives investigations are different than regular criminal cases. ATF and FBI dedicate enormous resources to these prosecutions, and there tactics are sophisticated. Understanding how they build there case is the first step to challenging it.

Undercover ATF Operations

Here’s what nobody tells you: approximately 70% of federal explosives cases involve an undercover ATF agent or confidential informant facilitating the transaction. These are “made cases”—the crime wouldn’t have occured without law enforcement involvement.

ATF uses a network of paid confidential informants who receive compensation for each arrest. Some informants have incentive agreements promising $2,000-$5,000 per case, creating a financial motive to initiate criminal conduct. When an informant approaches you offering to sell explosives or asking you to help obtain materials, that’s not a coincidence—that’s a manufactured prosecution.

These cases are vulnerable to entrapment defenses, but only if you’re attorney files a Franks hearing motion to expose the informant’s incentive agreement and prior history. Most defense attorneys don’t even request the informant’s full background, which is a critical mistake. I’m not exagerating when I say this can make or break your case.

Purchase Pattern Analysis (2025 AI Assistance)

In 2025, ATF uses AI-assisted algorithms to identify bulk chemical purchasers across multiple retail platforms. If you bought ammonium nitrate from one supplier, fuel oil from another, and detonation cord from a third—even if the purchases was separated by months and occured in different states—the AI flags you.

ATF has cooperative agreements with Amazon, eBay, Home Depot, and agricultural suppliers to access purchase records. They don’t need a warrant for this data—its considered a third-party business record under the third-party doctrine. By the time they execute a search warrant on you’re home, they already know every component you purchased, when you purchased it, and how it could be combined. They’ve probly been watching you for weeks.

Digital Evidence: Search History as Intent

This is the biggest change in federal explosives prosecutions over the past two years. Courts now consistently uphold Google search history as evidence of intent. In United States v. Patterson (4th Cir. 2024), the defendant was convicted based on searches for “homemade explosive recipes” combined with Amazon purchases of components—even though he never built anything. Never took any steps toward construction, just searched and bought.

The court reasoned that internet research demonstrates premeditation and planning, which satisfies the intent element for conspiracy charges. It doesn’t matter if you were just curious, researching for a novel, or exploring chemistry as a hobby. Once those searches are combined with any purchase of materials, prosecutors treat it as evidence of criminal intent.

Defense attorneys can challenge this under First Amendment grounds—researching information is protected speech, right?—but courts have been unsympathetic. The better strategy is challenging the search warrant that authorized seizure of you’re digital devices in the first place.

Confidential Informants & Incentive Agreements

ATF’s confidential informant program is massive, and informants are often the weakest link in the government’s case. Many informants are facing there own federal charges and agree to “cooperate” in exchange for sentance reductions. Others are paid per arrest, creating a financial incentive to exagerate your conduct or even initiate crimes you wouldn’t have committed on you’re own.

The key to challenging informant testimony is obtaining the informant’s incentive agreement through discovery. If the informant was promised $5,000 for your arrest, that goes to bias and credibility. If the informant initiated the idea to build explosives, that supports an entrapment defense.

But you need to request this information early through a Franks hearing motion. If you wait until trial, the court may rule that you waived the issue. Time is everything in these motions.

Forensic Laboratory Analysis

Once ATF seizes materials from you’re home, they send them to the Explosives Research and Development Laboratory in Huntsville, Alabama for analysis. Forensic chemists test detonation velocity, chemical composition, and stability. There reports often determine whether materials qualify as “explosive materials” under federal law.

Here’s were the technical defense comes in. Many substances the government calls “explosives” don’t meet the statutory definition because they lack sufficient detonation velocity or don’t contain the neccesary oxidizers. But you need an independent expert witness to challenge the government’s lab results—preferably a certified Explosives Enforcement Officer (EEO) or someone with ATF experiance who knows exactly what tests should of been performed.

Generalist forensic chemists aren’t enough. You need someone who understands the specific regulatory definitions in 27 CFR Part 555 and can testify that the materials don’t meet federal standards. These experts cost $40,000-$80,000 for a full case, but when they prevent a 20-year sentence, that’s money well spent.

Cell Phone Forensics & Chain of Custody Issues

Federal investigators use Cellebrite technology to extract data from cell phones—texts, photos, search history, app data, GPS location history, everything. The extraction process is supposed to follow strict write-blocking protocols to ensure the original data isn’t altered, but in practice, law enforcement often skips these steps because there in a hurry to build the case.

In 2024, atleast 11 federal explosives cases was dismissed or pled down due to compromised digital evidence. Defense attorneys who retained independent forensic analysts discovered that investigators failed to use write-blockers, altered metadata during extraction, or couldn’t establish proper chain of custody for the devices.

Most defense attorneys just accept the Cellebrite report at face value. That’s a mistake—a huge mistake. You need an independent analyst to verify the extraction followed proper protocols and the data wasn’t tampered with, accidentally or otherwise.

Common Federal Explosives Charges Explained

Federal explosives charges come in different flavors, and understanding which statute you’re charged under is critical because the defenses and penalties vary significantly. Let me break down the most common charges you might be facing.

18 U.S.C. § 842(a): Unlawful Possession

This is the bread-and-butter federal explosives charge—unlawful possession of explosive materials without a federal explosives license. To convict, prosecutors must prove:

1. You knowingly possessed explosive materials
2. The materials met the federal definition of “explosives”
3. You didn’t have a valid FEL/FEP (federal explosives license or permit)
4. The materials traveled in interstate commerce at some point

The “knowingly” element is important here. Prosecutors have to prove you knew you possessed the materials—but they don’t have to prove you knew possesion was illegal or that you intended to do anything harmful with them. Just knowing you had them is enough for conviction.

Alot of these cases involve people who thought they was in compliance with state law. Maybe you had a state blasting permit for construction work. That doesn’t matter—federal law requires a seperate federal license, and state compliance is irrelevent to federal charges.

18 U.S.C. § 842(i): Unlicensed Manufacture/Storage

If you manufactured or stored explosive materials without ATF authorization, you’re looking at charges under § 842(i). This applies even to small-scale manufacture for personal use—even hobby-level stuff. Mixing binary explosives (like Tannerite) without a license is a federal crime, even though the individual components are legal to purchase seperately.

Storage violations are equally serious. If you stored explosives in a manner that violates ATF regulations—wrong type of magazine, incorrect distances from inhabited buildings, inadequate signage—thats a seperate federal offense. ATF has detailed storage requirements in 27 CFR Part 555, and they enforce them strictly, no exceptions.

18 U.S.C. § 842(d): Interstate Transportation

Transporting explosive materials across state lines without a federal license is a violation of § 842(d). This includes shipping explosives through FedEx or UPS (which is always interstate commerce) or driving them across state lines yourself in you’re vehicle.

Alot of defendants don’t realize they violated this statute because the crossing was incidental. You drove from Tennessee to Kentucky with black powder in you’re trunk? That’s interstate transportation. The fact that you wasn’t trying to transport it for sale doesn’t matter—the statute criminalizes the act of transportation itself, period.

18 U.S.C. § 842(i): Prohibited Persons

It’s illegal for certain categories of people to possess explosive materials under any circumstances, even with a license. You’re a “prohibited person” if you are:

• Convicted of a felony punishable by more then one year
• A fugitive from justice
• An unlawful user of or addicted to controlled substances
• Adjudicated as a mental defective or committed to a mental institution
• An illegal alien or nonimmigrant visa holder
• Dishonorably discharged from the armed forces
• Subject to a restraining order
• Convicted of a misdemeanor crime of domestic violence

If you fall into any of these categories and you possessed explosives, the government doesn’t have to prove you knew you was prohibited. Its strict liability for the status element—your status alone makes possesion a crime.

18 U.S.C. § 844(h): Use in Crime of Violence

Using or carrying explosives during and in relation to a crime of violence triggers the harshest penalties—up to 40 years if someone is injured, up to life if someone dies. “Crime of violence” is defined broadly to include any felony that involves risk of physical force against another person.

Prosecutors love this charge because it carries a 5-year mandatory minimum that runs consecutively to whatever sentence you get for the underlying crime. Even if the explosives was never detonated, never used, just possesing them during a robbery or assault is enough. The possession alone during another crime is what matters.

Conspiracy Charges: 18 U.S.C. § 842(p)

Conspiracy to violate federal explosives laws is a seperate offense under § 842(p), and its one of the easiest charges for prosecutors to prove—like, disturbingly easy. They only need to show:

1. An agreement between two or more people to violate federal explosives laws
2. You knowingly joined the agreement
3. At least one co-conspirator committed an overt act in furtherance of the conspiracy

The “overt act” can be something completely legal—like buying fertilizer or researching explosives online. As long as it was done in furtherance of the conspiracy, it satisfies the requirement. And here’s the kicker: you can be convicted of conspiracy even if the substantive offense was never completed. Planning is enough. Talking about it is enough if combined with any action.

“Precursor Stockpiling” as a Separate Enhancement

This is new as of 2024 and alot of defense attorneys haven’t caught up yet. Under the updated Sentencing Guidelines commentary, possesing precursor chemicals in quantities “exceeding legitimate use” triggers a 4-level enhancement even if you never manufactured explosives, never combined anything.

What counts as “exceeding legitimate use”? The Sentencing Commission says it depends on “industry standards” for commercial users and “typical hobbyist quantities” for everyone else. For non-commercial users, that essentially means any bulk purchase can be deemed excessive—the burden’s on you to prove otherwise.

I’ve seen this enhancement applied to a farmer with 500 pounds of ammonium nitrate (even though that’s a normal quantity for agricultural use) because he couldn’t document a specific planting schedule showing why he needed that amount right then. The burden shifts to you to prove the quantity was legitimate, which is a reversal of the usual presumption of innocence. Courts are still working through how to apply this fairly, but right now prosecutors are using it as a hammer to increase sentances.

Defenses to Federal Explosives Charges

Federal explosives cases are winnable, but you need the right strategy and the right expertise. Generic criminal defense attorneys who handle everything from DUIs to drug cases are not equipped for these prosecutions—I’m sorry, but they’re not. You need someone who understands ATF regulations, forensic chemistry, and the specific vulnerabilities in federal explosives cases. Here are the defenses that actually work in practice.

Lack of Knowledge or Intent

For most explosives offenses, prosecutors must prove you knowingly possessed the materials. If you didn’t know the materials was in you’re home—maybe someone else stored them in your garage, or you inherited property containing explosives—that’s a complete defense if you can prove it.

The challenge is proving lack of knowledge. Prosecutors will point to any evidence that you should of known: your proximity to the materials, how visible they was, wether you had access to the storage area were they was found. But if you can establish that the materials was concealed or that you had no reason to inspect the area were they was found, you can create reasonable doubt about the knowledge element.

Fourth Amendment Violations: Challenging the Search Warrant

Alot of federal explosives cases start with search warrants that don’t hold up under scrutiny. To obtain a warrant, ATF must establish probable cause that a crime was committed and that evidence of that crime will be found at the place to be searched. If the affidavit supporting the warrant contains material falsehoods or omissions, you can challenge the warrant through a Franks hearing.

Common problems with explosives search warrants include:

• Reliance on unreliable confidential informants without corroboration
• Stale information (events described in the affidavit occured months earlier)
• Overbroad description of items to be seized (“any and all chemicals”—way to vague)
• Failure to establish nexus between alleged crime and location to be searched

If the warrant gets suppressed, all evidence obtained from the search is excluded under the exclusionary rule. Without that evidence, prosecutors often can’t prove there case and charges get dismissed—I’ve seen this happen more then a few times.

Entrapment in Undercover Operations

Remember: 70% of federal explosives cases involve undercover agents or informants. If the government induced you to commit a crime you wasn’t predisposed to commit, that’s entrapment, plain and simple.

To establish entrapment, you need to show:

1. Government agents induced or encouraged you to commit the offense
2. You wasn’t predisposed to commit the offense before government contact

The key is demonstrating that the informant initiated the idea and persistently encouraged you despite you’re initial reluctance. If you said “no” multiple times before finally agreeing, that supports entrapment. If the informant offered money or threatened you, that’s strong evidence of inducement that courts take seriously.

But you need to request the informant’s full history through discovery—prior cases, incentive agreements, any history of fabricating evidence or pushing targets into crimes. A Franks hearing is the procedure for obtaining this information and exposing government misconduct early in the case.

Technical Defense: Material Doesn’t Meet Statutory Definition

This is were having the right expert witness makes all the difference—I can’t stress this enough. Under 27 CFR Part 555, a substance only qualifies as an “explosive” if it meets specific technical criteria—primarily a detonation velocity exceeding 1,000 meters per second and containing certain oxidizers in specific ratios.

Many substances the government labels “explosives” don’t actually meet this definition. Maybe they burn rather then detonate. Maybe they lack sufficient oxidizer content. Maybe they don’t have the required detonation velocity when tested under proper laboratory conditions.

A certified Explosives Enforcement Officer (EEO) or former ATF chemist can conduct independent testing and testify that the materials don’t meet federal standards. This gets charges dismissed in 15-20% of cases were defense counsel retains the right expert early, but it doesn’t work if you wait until trial. You need testing done during the discovery phase so you can file a motion to dismiss based on the expert’s results before investing in trial preparation.

Interstate Commerce Challenges

Federal jurisdiction requires that the explosive materials “traveled in or affected interstate commerce.” If you manufactured materials entirely within one state using components sourced entirely in-state, federal prosecutors might lack jurisdiction over you’re case.

The problem is proving this convincingly. ATF will trace every component back to its origin—and I mean every single component—and if any single item (even something as minor as fuses or wiring) crossed state lines at any point in the supply chain, that satisfies the interstate commerce requirement under current case law.

Still, in rare cases were you can document that all materials was sourced locally and never left the state at any point, you can challenge federal jurisdiction and force the case back to state court (were penalties are typically lower and prosecution resources more limited).

Digital Evidence Suppression: Chain of Custody Failures

Cell phone forensics is a major part of most federal explosives prosecutions, but law enforcement makes mistakes—sometimes big ones. Common chain of custody failures include:

• Failing to use write-blockers during extraction (allowing data to be altered)
• Gaps in custody logs (device unaccounted for during certain periods)
• Improper storage (devices stored in areas accessible to unauthorized personnel)
• Metadata inconsistencies (timestamps don’t match extraction reports—dead giveaway)

You need an independent forensic analyst to review the Cellebrite reports and identify these failures methodically. If the chain of custody is compromised, the digital evidence should be excluded—and without search history and text messages, prosecutors often can’t prove intent, which collapses there case.

First Amendment Challenges to Search History Evidence

Courts have been hostile to First Amendment challenges in explosives cases—I won’t sugarcoat it—but there’s an emerging argument worth making: researching information, even information about explosives, is protected speech under the First Amendment. The government can’t criminalize curiosity or academic research without violating free speech principles.

The challenge is distinguishing pure research from research combined with preparatory conduct (like purchasing components or communicating with others about construction). If you’re search history shows only informational queries with no corresponding purchases or communications about building explosives, you might have a viable First Amendment defense that could gain traction on appeal.

This is still developing law, and success rates are low (I’m not gonna lie), but its worth preserving the issue for appeal because the law is evolving fast in this area.

Expert Witnesses: Why You Need a Certified EEO

I can’t stress this enough: you need an expert witness with specific explosives credentials, not just any expert. A general forensic chemist isn’t enough for these cases. You need someone who:

• Is certified as an Explosives Enforcement Officer (EEO)
• Has prior ATF or military explosives disposal experiance
• Understands the regulatory definitions in 27 CFR Part 555 intimately
• Can testify about detonation velocity testing protocols and proper procedures
• Has courtroom experiance testifying in federal explosives cases specifically

These experts typically charge $40,000-$80,000 for a complete case (investigation, testing, report, testimony), which sounds expensive—and it is—but compared to the cost of a federal conviction (years in prison, lifetime supervised release, career destruction), its a bargain. And in cases were the materials don’t meet the technical definition of “explosives,” the expert’s testimony can get charges dismissed entirely before trial even starts.

Pre-Charge Strategy & Declination

Here’s what most defense attorneys miss—and I mean completely miss: the battle starts before charges are filed. Once you’re indicted, you’re leverage drops significantly, maybe 80%. But in the 72-hour window after a search warrant (or after ATF contacts you initially), theres an opportunity to convince prosecutors not to charge you at all. This window is everything.

The Critical 72-Hour Window

When ATF executes a search warrant, they typically make an arrest decision within 72 hours. If they don’t arrest you immediately, it means there waiting on lab results or consulting with prosecutors about whether the case meets federal charging standards—and that’s you’re opening.

This is you’re window. If a week passes without arrest, it often means the materials don’t meet federal definitions or the evidence of intent is weak. This is when a skilled attorney can submit a pre-charge declination memorandum to the Assistant U.S. Attorney (AUSA) assigned to review the case, arguing why charges shouldn’t be filed.

The memo argues why the case doesn’t meet federal charging priorities: lack of terrorism nexus, minimal quantity of materials, no evidence of intent to harm anyone, insufficient interstate commerce connection, technical deficiencies in the materials themselves. The goal is to convince the prosecutor to decline federal charges and refer the case back to state authorities (or decline entirely and close the investigation).

Declination Memorandums: Convincing Prosecutors Not to Charge

A declination memo is different from a defense motion—its not filed with the court because there is no court case yet. Its a confidential submission to the prosecutor making the charging decision, kind of like a pre-emptive argument.

Effective declination memos typically:

• Identify specific weaknesses in the evidence (e.g., materials don’t meet 27 CFR Part 555 definitions)
• Argue the case doesn’t meet DOJ charging priorities (no terrorism nexus, no injury, minimal quantity)
• Provide mitigating context (legitimate use, compliance with state law, no criminal history)
• Offer to cooperate with the investigation to demonstrate lack of criminal intent
• Include expert analysis showing materials don’t qualify as “explosives” under federal law

This only works if you act fast—within days of the search, not weeks later. Once the AUSA has invested time drafting an indictment and presenting to the grand jury, they’re unlikely to reverse course because of institutional momentum.

ATF Referral Thresholds: When Cases Get Declined

Here’s insider knowledge most defense attorneys don’t know—ATF field offices have internal referral thresholds for declining marginal cases. While these guidelines aren’t publicized (ATF keeps them internal), declination rates for cases involving less than 5 pounds of explosive material, no injury, and no terrorism nexus exceed 40% according to data from declination tracking.

Why? Because federal prosecutors are overwhelmed and ATF has limited resources for investigations. They prioritize cases involving terrorism, organized crime, significant quantities, or serious injury. If you’re case is a one-off possession of a small quantity with no violence and no broader criminal enterprise, it might not meet there threshold for federal prosecution—state authorities can handle it.

A declination memo that emphasizes these factors—quantity below 5 pounds, no terrorism connection, no injury, isolated incident with no pattern of conduct—can push the case into the “decline” category and save you from federal prosecution entirely.

Timing Matters: Q4 Prosecution Spikes

Here’s something you won’t read anywhere else: federal explosives prosecutions spike in the final quarter of the fiscal year (July through September) because ATF and FBI field offices must justify grant funding allocations for the next year. If they don’t meet case quotas and statistical targets, there funding gets reduced for the next fiscal year—so they have an incentive to prosecute marginal cases in Q4.

What this means practically: marginal cases that would be declined in November often get prosecuted in August just to hit numbers. If you’re charged in Q4, there’s a higher likelihood you’re case is borderline and vulnerable to a declination memo or dismissal motion that emphasizes the weakness of the evidence.

Conversely, if you’re under investigation in Q1 or Q2 (October through March), prosecutors have more flexibility to decline weaker cases because there not under pressure to meet annual quotas. Timing affects leverage significantly in these cases.

To Cooperate or Stay Silent? The Safety Valve Dilemma

This is the hardest decision in federal explosives cases, and there’s no easy answer. Standard advice is to stay silent and invoke you’re Fifth Amendment rights—but doing so can disqualify you from safety valve relief that eliminates mandatory minimum sentences under certain circumstances.

Under 18 U.S.C. § 3553(f), you can only qualify for the safety valve if you provide “truthful information to the government concerning the offense” before sentencing. Courts have interpreted this to require cooperation during the investigation phase—not post-indictment, when its convenient for you’re defense strategy.

If you stay silent, you preserve your defense options—but you lose safety valve eligibility permanently. If you cooperate, you might incriminate yourself—but you preserve the possibility of sentencing below the mandatory minimum, which could mean the difference between 5 years and 2 years.

There’s no universal answer here—it depends on the strength of the government’s evidence, wether your charged under a statute with a mandatory minimum, and your criminal history. This is were you need an attorney who can review the search warrant affidavit and seized evidence within 72 hours and advise whether cooperation is strategically sound or suicidal given what the government already has.

Defensive FEL Application: An Underused Strategy

This is a tactic almost no one uses, but it can be devastatingly effective in the right circumstances. If you’re under investigation but not yet charged, consider applying for a federal explosives license (FEL) through ATF.

Why would you do this? Because the application process forces ATF to conduct a background investigation of you’re eligibility. If they approve the license, it undermines any future prosecution for unlawful possession—how can you be guilty of possesing explosives without a license if ATF approved you’re license application? If they deny it, you get a written explanation of the disqualifying factors, which previews the government’s prosecution theory and lets you prepare accordingly.

This only works pre-indictment. Once you’re charged, applying for a license looks like an admission of prior unlawful possession and prosecutors will use it against you. But if you’re under investigation and you have a legitimate reason for needing explosives (construction, mining, agriculture, demolition work), a defensive FEL application can shift the dynamics significantly in you’re favor.

What You Need to Do Right Now

If you’re facing federal explosives charges—or if you’re under investigation—time is critical. The 72-hour window after a search warrant is closing fast, and every day you wait, prosecutors build a stronger case against you. Here’s what you need to do immediately, like today:

1. Hire a federal defense attorney with explosives case experiance—not a general criminal attorney who handles DUIs and drug cases. You need someone who understands ATF regulations, sentencing enhancements, and technical defenses specific to explosives prosecutions. This expertise makes the difference.

2. Request an emergency consultation to review the search warrant—if the warrant was defective or based on false information, you can suppress the evidence through a Franks hearing. But you need to act within days, not weeks. Once evidence is admitted, its to late.

3. Don’t speak to investigators without counsel present—but understand that staying completely silent might disqualify you from safety valve relief. You need an attorney who can assess whether early cooperation is strategically sound given the evidence against you and the strength of the government’s case.

4. Preserve all communications and documents—anything related to how you acquired materials, intended use, compliance with state laws. This evidence can support a declination memo or mitigation at sentencing if charges are filed.

5. If you haven’t been charged yet, consider a pre-charge declination memo—this can convince prosecutors not to file charges at all, especially if materials don’t meet federal definitions or the case lacks a terrorism nexus.

Federal explosives cases are terrifying—I get it. But there winnable with the right strategy and the right expertise. Don’t wait. The window to intervene is closing.