Federal Charges for Selling Gun That Was Used in Crime

Federal Charges for Selling Gun That Was Used in Crime

When a gun shows up at a crime scene, ATF traces it. Every time. The trace follows a path from manufacturer to distributor to dealer to the first retail purchaser. That person – the original buyer – is the starting point of every investigation. Even if they sold the gun years ago. Even if they sold it legally. Even if they had nothing to do with the crime. Your name is on the paperwork, and when investigators need answers, they come to you first.

Welcome to Spodek Law Group. We created this page because people who sell firearms privately often have no idea how much exposure they create for themselves. You sold a gun to someone who seemed fine. Years later, that gun is used in a robbery, an assault, or a murder. Now federal agents are at your door asking questions. The crime itself might not be your fault – but the sale that led to it could make you a federal defendant.

The question most people ask is “can I be charged for a crime someone else committed with my gun?” The answer is complicated. You probably cant be charged for the crime itself. But you can absolutely be charged for the sale – for selling to a prohibited person, for dealing without a license, for failing to conduct a background check when one was required. And those charges carry up to 10 years in federal prison.

The Trace That Leads Back to You

ATF’s National Tracing Center is the only crime gun tracing facility in the United States. When law enforcement recovers a firearm at a crime scene and wants to know where it came from, the trace request goes to NTC. Using the guns serial number and markings, investigators identify the manufacturer, then the distributor, then the retail dealer, and finally the first person who bought that gun.

Heres the critical part. The trace ends with the first retail purchaser. ATF dosent have a database of current gun ownership. Congress has made it illegal to create one. So the trace tells investigators who FIRST bought the gun – not who owns it now. That means if you bought a gun from a dealer ten years ago and later sold it privately, your still the person ATF contacts when that gun turns up at a murder scene.

Think about what that means. You legally purchased a firearm. You legally sold it to someone in a private transaction years later. The person you sold it to may have sold it again. It might have changed hands five times. But when the trace comes back, your name is on the Form 4473. Your the starting point. Your the one who has to explain what happened to that gun.

The NTC currently holds over 800 million records from out-of-business gun dealers. They recieve between 6 and 8 million new records every month. Routine traces take 7-10 days. Urgent traces – for ongoing violent crime investigations – can be completed in hours. The system is comprehensive, efficient, and it always leads back to an original purchaser.

When a crime gun is traced, YOUR name comes up whether you still own the gun or not. Thats not a bug in the system. Thats how its designed to work.

The Marcus Braziel Warning – How a Private Sale Led to Federal Prison

On August 31, 2019, Seth Aaron Ator drove through Midland and Odessa, Texas, shooting randomly at people. He killed seven. He wounded twenty-five. When it was over, investigators traced the AR-15 rifle he used. The trace led to Marcus Braziel, who had sold Ator the gun in a private sale nearly three years earlier.

Heres what makes this case a warning for every private gun seller. Ator was legally prohibited from possessing firearms. He had been “adjudicated mentally defective” – one of the nine prohibited categories under federal law. He knew he couldnt buy a gun legally. He first tried to purchase from a sporting goods store, but the background check flagged his mental health status and he was rejected.

So Ator found Braziel. Braziel sold guns privately. He elected not to run background checks on any of his buyers. For the Ator sale, no background check was conducted, so Attor’s prohibited status never came up. Braziel sold him the rifle. Three years later, Ator used it to commit mass murder.

Braziel wasnt charged with murder. He wasnt charged as an accessory. He was charged with dealing firearms without a license – because prosecutors determined he was “engaged in the business” of selling firearms without the required FFL. That crime carries up to 5 years in federal prison. Braziel pleaded guilty and was sentenced.

The lesson here is devastating. Braziel may not have known Ator was prohibited. He may have genuinely beleived he was making legal private sales. But when one of his guns was used in a mass shooting, investigators examined his sales patterns and concluded he should have been licensed. The “engaged in the business” standard is vague enough that prosecutors have significant discretion. Braziel fell on the wrong side of that line.

What “Selling to a Prohibited Person” Actually Means

Under 18 U.S.C. § 922(d), its illegal to sell or transfer a firearm to anyone you know or have “reasonable cause to believe” is prohibited from possessing firearms. This statute creates criminal liability for sellers who should have known they were arming someone dangerous.

The key phrase is “reasonable cause to believe.” You dont have to know for certain that the buyer is a felon, a drug user, or mentally ill. If circumstances would have given a reasonable person cause to believe the buyer was prohibited, thats enough for prosecution.

What creates “reasonable cause to believe”?

• The buyer mentions a criminal record
• The buyer seems intoxicated or under the influence
• The buyer makes threats or references to violence
• The buyer explains theyre buying for someone else
• The buyer seems nervous or evasive about questions
• The buyer pays cash and avoids any identification
• The buyer cant provide basic information about themselves

The problem is that these factors are evaluated after the fact, by prosecutors looking backward at a sale that led to violence. Your gut feeling at the time of sale might have been “this person seems fine.” But if investigators later discover the buyer was prohibited, theyll scrutinize every detail of your interaction looking for red flags you should have noticed.

Todd Spodek tells clients that the “reasonable cause” standard puts sellers in an impossible position. You cant run a background check on private sales in most states. But your expected to somehow divine weather the buyer is prohibited. If you guess wrong and sell to the wrong person, you face up to 10 years in federal prison.

The “Engaged in the Business” Trap

Heres another way private gun sellers become federal defendants. Under federal law, anyone “engaged in the business” of dealing firearms must be licensed as an FFL. If your selling guns regularly – devoting time, attention, and effort to purchasing and reselling firearms for profit – you need a license. Selling without one is a federal crime.

The problem is that “engaged in the business” has never been precisely defined. How many sales make you a “dealer”? How much profit? Over what time period? The law says that “occasional sales” from a “personal collection” dont require a license. But theres no clear line between occasional sales and business activity.

This vagueness creates enormous prosecutorial discretion. One person sells five guns over two years and nobody cares. Another person sells five guns over two years and gets charged with unlicensed dealing. The difference often comes down to whether any of those guns ended up at crime scenes, whether prosecutors are under pressure to address gun violence, and how the sellers conduct looks when examined retrospectively.

The conviction rate tells you how uncertain this standard is. According to research on unlicensed dealing prosecutions, only 53% of defendants are convicted when cases go to jury trial. Nearly one-third of defendants charged with this offense are ultimately not convicted of it. Juries struggle to determine what “engaged in the business” actually means – and that uncertainty cuts both ways.

If your guns end up at crime scenes, prosecutors will argue your sales patterns prove you were dealing. If your selling regularly enough to attract attention, you might be on the wrong side of a line nobody can clearly define.

When ATF Comes Knocking

So your gun was traced to a crime scene. ATF agents show up at your door. What happens now?

First, they want to know where the gun is. If you still have it, the investigation might end there – the trace identified the wrong possessor. But if the guns not in your possession, they want to know who has it.

This is where private sellers get in trouble. If you sold the gun privately and kept no records, you probly cant answer that question with any precision. “I sold it to some guy a few years ago” is not a satisfying answer to investigators looking for a murder weapon.

Second, they want to assess weather you knew or should have known the buyer was prohibited. They’ll ask about the circumstances of the sale. How did you meet the buyer? What did you discuss? Did anything seem off? Did you ask any questions about there background? How much did you sell it for? Did they pay cash?

Every answer you give becomes evidence. If you say the buyer “seemed fine,” prosecutors can later argue you ignored red flags. If you say you dont remember the details, that looks evasive. If you refuse to answer, they may get more aggressive with the investigation.

The moment ATF contacts you about a traced firearm, you need an attorney before you say anything. Not because your guilty. Because your explanations will be used to build a case against you if prosecutors decide to charge.

The Private Sale Paperwork Problem

Most states dont require private sellers to keep records of firearm transactions. Theres no federal requirement for a private sale bill of sale. Many people sell guns without documenting anything – no buyer information, no record of the sale, nothing.

This creates massive vulnerability. When investigators trace a gun to you and you cant document what happened to it, you look like youre hiding something. “I sold it but I dont know who to” sounds like a lie, even when its true. “I sold it to a friend” without any documentation raises questions about weather you verified that “friend” was legally eligible.

Sellers who keep records – even informal ones – have something to show investigators. A bill of sale with the buyer’s name, address, and signature. A copy of the buyers drivers license. Some evidence that you at least attempted to verify who you were selling to.

Sellers without records have nothing but their word. And their word, standing alone, is unlikely to convince prosecutors that the sale was legitimate if the gun ended up being used in violence.

Todd Spodek recommends that anyone who sells firearms privately treat every sale like it might be traced later. Because it might be. And when it is, the documentation you kept – or didnt keep – becomes the difference between explaining the sale and defending against federal charges.

The Time-to-Crime Factor

ATF pays close attention to something called “time to crime” – the period between when a gun is first sold and when it shows up at a crime scene. This metric is a major factor in deciding who to investigate and potentially prosecute.

A short time to crime is a red flag. If you bought a gun last month and its already been used in a shooting, investigators assume something suspicious happened. Legitimate gun owners dont typically sell or lose firearms within weeks of purchase. A quick time to crime suggests straw purchasing, trafficking, or at minimum a sale that should have raised questions.

The average time to crime nationally is around 8-9 years. Guns used in crimes often changed hands multiple times over that period. But when investigators see a gun recovered at a crime scene just weeks or months after the original purchase, they scrutinize every link in the chain – starting with you.

Heres were it gets worse. NIBIN – the National Integrated Ballistic Information Network – can link a single gun to multiple crime scenes. The bullet casings and striations create a ballistic “fingerprint” that connects shootings to specific firearms. If the gun you sold has been used in multiple crimes, investigators will want to know how a single weapon ended up at the center of a crime spree.

Imagine this scenario. You sell a gun privately. The buyer turns out to be supplying firearms to gang members. That one gun you sold gets passed around and used in three different shootings over two years. When NIBIN connects all three crime scenes to the same weapon, investigators trace it back to you. Now your not explaining one crime – your explaining how a gun you sold ended up in the middle of ongoing violence.

The time-to-crime analysis dosent prove you did anything wrong. But it determines how much attention investigators pay to your transaction. A gun that took ten years to reach a crime scene is one thing. A gun that showed up at a murder scene three weeks after you bought it is something very different.

The Difference Between Civil and Criminal Liability

Theres an important distinction between criminal prosecution and civil lawsuits when a gun you sold is used in violence. Most people focus on criminal exposure – federal charges, prison time – but civil liability can be devastating too.

Criminally, you can be charged if prosecutors can prove you knew or should have known the buyer was prohibited, or if you were dealing without a license. The burden of proof is “beyond a reasonable doubt.” Thats a high bar, which is why many traced guns dont result in criminal charges against previous sellers.

Civilly, its different. Victims of gun violence (or there families) can sue previous sellers under certain circumstances. The burden of proof is “preponderance of evidence” – basically, more likely than not. Thats a much lower bar. And civil cases can result in massive damage awards.

The Protection of Lawful Commerce in Arms Act (PLCAA) provides significant protection to gun manufacturers and dealers against most civil lawsuits. But this protection has limits. If a seller violated federal or state law in making the sale, PLCAA protection might not apply. And private sellers without FFL status have less clear protection under the law.

At Spodek Law Group, weve seen cases were sellers face both criminal investigation AND civil lawsuits simultaneously. The criminal case might not result in charges, but the civil case extracts settlements or judgments anyway. Your not just worried about prison – your worried about losing everything in a lawsuit.

What Actually Protects You

If your going to sell firearms privately, heres what actually creates protection.

Document everything. Create a bill of sale for every transaction. Include the buyers full name, address, and signature. Get a copy of there government-issued ID. Write down the date, the firearm make/model/serial number, and the sale price. This dosent prevent prosecution, but it demonstrates you took the sale seriously and tried to verify the buyer.

Ask questions. “Are you legally able to own firearms?” is a basic question that at least establishes you inquired. If they answer yes and theyre lying, their lie becomes there problem, not yours. You made a reasonable effort.

Trust your instincts. If something feels wrong about a buyer – they seem evasive, they mention wanting a gun “off the books,” they offer significantly more then the gun is worth – walk away. No sale is worth federal prison.

Know your state laws. Some states require background checks for all private sales. Some require sales to go through FFLs. Know what your state requires and follow it. Federal charges often build on state law violations.

Consider the volume. If your selling guns regularly, you might be crossing into “engaged in the business” territory. Get a license, or stop selling. The middle ground – regular sales without a license – is exactly where prosecutors look when guns end up at crime scenes.

If You’ve Already Sold a Gun and Something Happened

Maybe your already in this situation. You sold a gun. It was used in a crime. ATF traced it. Now your worried about what comes next.

Heres the reality. Most traced guns dont result in charges against previous owners. The trace is a starting point for investigation, not an automatic prosecution. Investigators are looking for the person who committed the crime, not necessarily the person who sold the gun years earlier.

But if investigators develop evidence that you knew or should have known the buyer was prohibited, or that you were dealing without a license, or that you provided false information – the calculation changes. Now your not just a witness. Your a potential defendant.

If federal agents contact you, stop talking immediatly. Dont explain. Dont try to help them understand. Dont provide information thinking it will clear you. Call Spodek Law Group at 212-300-5196 before you say anything.

We handle federal firearms cases and understand how these investigations develop. The consultation is confidential. Your answers to investigator questions can make your situation dramatically better or dramatically worse. Let us evaluate what your actually facing before you make decisions.

Call us at 212-300-5196. If a gun you sold has surfaced at a crime scene, the clock is already running on your exposure. Dont wait to find out how serious this is.