Rep. John Dingell's letter to AG Janet Reno

I read with great interest Deputy Attorney General Eric Holder’s June 4, 2000, announcement regarding the release of two Bureau of Justice Statistics (BJS) reports on Federal Firearm Offenders and Background Checks for Firearm Transfers. As you are aware, effective and timely enforcement of our nation’s federal firearms laws is of tremendous importance to the Congress. As we continue to look for effective strategies to prevent firearms from falling into the wrong hands and reduce gun violence, reports such as these are useful in evaluating the progress of the Administration on this front.

As Mr. Holder notes in his statement, "the Brady Law has stopped 536,000 felons, fugitives, domestic abusers, and other persons not legally allowed to have a gun from getting a gun." This is indeed an impressive record. The National Instant Criminal Background Check System (NICS) is one of the most effective tools we have to crack down on gun criminals and prevent crime. However, stopping the sale of a firearm to a prohibited person is only one component of an effective strategy to reduce violent criminal behavior. Prosecuting those felons, fugitives and domestic abusers who attempt to purchase a firearm is the other half of the equation.

The BJS report on Firearm Offenders states that an average of 6,700 defendants were charged with a firearm offense in U.S. district courts between 1992 and 1999. On its face, that number of prosecutions seems incredibly low given the number of prohibited persons stopped by the instant check system. An analysis of the BJS reports confirms that the number of federal prosecutions is severely inadequate.

As you are aware, 18 U.S.C. 922(a)(6) makes the attempted purchase of a firearm by an individual who knowingly provides false information on a firearm transfer application (ATF Form 4473) a federal felony offense. In simple terms, it is a federal felony, punishable for up to ten years in prison, for felons, fugitives, domestic abusers or any other category of prohibited person to attempt to purchase a firearm if they knowingly falsify the purchase application.

Of the 204,000 attempted purchases stopped by NICS in 1999, the BJS report states that 71 percent of the rejections were for a felony conviction or indictment, 12 percent were for a disqualifying domestic violence conviction and three percent were rejected because the applicant was a fugitive from justice. Thus, 86 percent (approximately 175,440 persons) of those rejected by the instant check system had de facto committed another felony by falsifying ATF Form 4473. However, federal firearm prosecutions in aggregate totaled only 6,728. Although the report indicated the statistics for 1999 are preliminary data, that is a prosecution rate of only 3.29 percent. To put it another way, for every thirty rejected applications for a firearm transfer, there was only one prosecution.

If we are to concern ourselves with 1998, the latest year for which we have final data, the record is demonstrably worse. Of the rejected applications, totaling 90,000 in 1998, a mere 102 cases were federally prosecuted. That equates to a prosecution rate of less than one percent. Thus in 1998, for every 882 rejected applications for a firearm transfer there was only one federal prosecution. And while some have made the case that these cases are difficult to prosecute, I would note the statement of former federal prosecutor Andrew McBride of the Richmond office, now in private practice, that such cases are as easy to prosecute as "picking change up off the street."

Needless to say, these statistics are less than impressive. It is not hard to understand why this Administration has been criticized for being lax in enforcing existing federal firearm laws. In an effort to better understand why the Department of Justice is not doing more to prosecute violations of 18 U.S.C. 922(a)(6), I would appreciate your answers to the following questions:

Some of the reasons for this poor prosecutorial record are indicated in the BJS Federal Firearm Offenders report. Citing table 1,"Firearm suspects declined for prosecution by U.S. attorneys, by reason for declination, 1998," some of the reasons listed for not prosecuting known gun criminals include: minimal federal interest and DOJ/U.S. Attorney policy. I find this very curious. Please tell me:

What exactly is the policy for prosecuting violations of 18 U.S.C(a)(6)?

Why there would be a DOJ/U.S. Attorney policy not to prosecute those who violate federal firearms laws?

Why there would be "minimal federal interest" in prosecuting those who violate federal firearm laws?

Another reason that was cited in table 1 for declining to prosecute was "weak evidence." Without knowing the facts of each individual case, I would note the following: If an individual knowingly makes a false statement on ATF Form 4473, that is a felony. Form 4473 requires the prospective purchaser to state whether or not he/she is disqualified from purchasing a firearm. Furthermore, each disqualifying criterion is listed on Form 4473 and requires a yes or no answer. Form 4473 also requires a signature by the prospective purchaser and the seller. Form 4473 also requires many other identifiers to verify the identity of the transferee. Thus, if an individual is rejected because NICS system reports that a prospective purchaser is a convicted felon and falsified a document in an attempt to obtain a firearm, that is a violation of U.S.C. 922(a)(6). It seems to me that this should be a relatively open and shut case.

However, of the 204,000 individuals denied the purchase of firearm "nearly 3 out of 4 rejections for firearm transfer occurred because the applicant either had a felony conviction or was under felony indictment." Therefore, it follows that over 150,000 individuals committed a federal felony by falsifying ATF Form 4473. Yet, a February, 2000 General Accounting Office report on the Implementation of NICS showed that in FY 1999, U.S Attorneys filed only 278 cases involving alleged false statements of 18 U.S.C. 922(a)(6) and 316 cases were pending at fiscal yearend. Please explain the lack of federal prosecutions for false statements on ATF Form 4473. Also explain towhat degree "weak evidence" contributes to the unwillingness of U.S. Attorneys to prosecute 18 U.S.C. 922(a)(6) violations.

Appendix III of the GAO audit describes federal enforcement policies regarding falsified firearm purchase applications. It states:

In November 1998, EOUSA [Executive Office for U.S. Attorneys] provided Brady Act prosecutive guidance . . . The guidance stated that thousands of potential Brady false-form cases would likely reach ATF field offices annually, and that the system "would grind to a halt if ATF investigated all the denials."

The report goes on to say that the EOUSA guidance recommended that U.S. Attorneys should "make every effort to increase the number of Brady false-form prosecutions (from the current annual level of 50 cases)."

The GAO audit also states that in deciding which false form violations to forward to U.S. Attorneys, ATF’s policy is to refer those cases where the "denied purchaser’s criminal history has records of violent felonies, serious drug trafficking, or prior firearms convictions." Yet the GAO report indicates that over half of the referrals of violent criminals were closed without investigation or prosecution.

In light of these GAO findings, I would like answers to the following:

Why were half of the referrals of violent criminals closed without investigation or prosecution?

What efforts has the Department of Justice undertaken to increase the number of false form prosecutions? Has EOUSA issued any additional guidance regarding 18 U.S.C. (a)(6) violations?

Since November 1998, how many 18 U.S.C. (a)(6) violations have been referred to U.S. Attorneys by ATF field offices?

How many 18 U.S.C. (a)(6) false form prosecutions have U.S. Attorneys undertaken since the November 1998 EOUSA guidance?

I do not believe that violent felons, upon learning they are disqualified from firearm ownership, give up their search to obtain a firearm. Please explain why U.S. Attorneys are unwilling to enforce 18 U.S.C. (a)(6) even for violent felons who attempt to purchase firearms?

At a June 21, 2000, hearing at the Senate Judiciary Committee regarding improvements to NICS, Mr. David Loesch, Assistant Director in charge of the Criminal Justice Information Services Division of the FBI testified that the law prohibiting felonious misrepresentation of firearm eligibility "is essentially unenforceable." Would you please expand on this statement and explain why your representative characterized this law as such? Do you share the view that this law is unenforceable? Please comment on the enforceability of U.S.C. 18 (a)(6) in all its specifics and in general.

Your attention to this matter is greatly appreciated. I look forward to your response. If you have any questions about this matter, please have your staff contact Michael Hacker of my office at (202) 225-4071.

With every good wish,

Sincerely,

John D. Dingell
Member of Congress

"No free man shall ever be debarred the use of arms."
-Thomas Jefferson