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A man who said the reason he had a gun when stopped by city police in the subway was that he was on his way to collect a reward for turning over the firearm has, nevertheless, lost a bid to overturn his federal weapons possession conviction.
Robert Lee Miles was stopped on Jan. 19, 2011 by NYPD officers at the 145th Street/St. Nicholas Avenue subway station after he violated regulations by walking through the end doors of a subway car. Police recovered an unloaded revolver from his waistband.
Miles argued to Southern District Judge Keenan (See Profile) that he should not be held criminally liable because he had only been given the gun by a friend so Miles could take advantage of the Police Department’s $100 cash-for-guns program.
His attorneys with Friedman Kaplan Seiler & Adelman argued in papers that he was “in dire need of money” and well aware that guns could be surrendered at police precincts on a “no questions asked” basis.
“Mr. Miles, who had read and heard about these programs before, decided that taking his friend’s unloaded gun to a nearby police precinct would be a safe way to get $100,” the attorneys stated.
Keenan disagreed and, after rejecting other contentions by Miles at a bench trial, found him guilty of being a felon in possession of a firearm in violation of 18 U.S.C. §922(g)(1) on March 27, 2013.
Because Miles had prior convictions, including two violent felony offenses and a serious drug offense, Keenan sentenced him to a mandatory minimum term of 15 years in prison under the Armed Career Criminal Act, 18 U.S.C. §924(e).
The appeal in United States v. Miles, 13-1158 was heard by Judges Richard Wesley (See Profile), Susan Carney (See Profile) and Southern District Judge Jed Rakoff (See Profile) on March 28. The court rejected Miles’ arguments in a per curiam decision on Thursday.
Miles had contended before Keenan the indictment should have been dismissed under the “innocent possession” defense and if not, that he should at least be allowed to make that argument to a jury. He also said said the indictment should be dismissed on the ground of entrapment by estoppel or at least that he be permitted having argued in papers that “New York’s promotion of gun amnesty programs coaxed Mr. Miles’ behavior, and indeed, legitimized it.”
Finally, he argued that the gun should be suppressed because the statute cited by the police as the reason for stopping him prohibits walking between subway cars only when the subway was moving.
It was only after losing these arguments pretrial that Miles elected to proceed without a jury before Keenan.
The circuit agreed with Keenan across the board.
The court said entrapment by estoppel requires a showing by the defendant that he was given “affirmative assurance from the government that his conduct was legal.”
“Here, Miles creatively argues that his federal prosecution is precluded by representations made to him in connection with state and local programs offering ‘cash for guns,’” the court said. “This court has never explicitly held that a defendant accused of a federal crime must identify a federal official to invoke the defense of entrapment by estoppel.”
But other circuits “have widely and unanimously held” that someone charged with a federal crime “must show reliance on the advice or authority of federal officials or agents to invoke this defense,” the court said.
“This unanimity is largely compelled by the understanding that state and local officials can’t ‘bind the federal government to an erroneous interpretation of federal law,’” the court said, citing United States v. Ormsby, 252 F.3d 844 (6th Cir. 2001). “This strikes us as good sense, and a logical rationale to follow.”
The circuit said it also has never decided whether to recognize an “innocent possession” defense in a prosecution under §922(g)(1), but it cautioned that it has repeatedly rejected such a defense where the possession was not momentar— as Miles’ possession was not.
“Although we do not here announce a new rule, we believe the district court correctly held that on the facts averred by Miles he would be unable to assert such a defense,” the court said.
The court also said Miles had no case on the subway door regulation, N.Y. Comp Codes R. & Regs.tit. 21,§1050.9(d), because the regulation states that “[n]o person may use the end doors of a subway car to pass from one subway car to another except in an emergency” or when directed to do so by a police officer.
Friedman Kaplan partner Mary Mulligan and associate Alexander Levi represented Miles. Mulligan issued a statement expressing disappointment with the court’s decision.
Southern District Assistant U.S. Attorney Daniel Richenthal argued for the government.
@|Mark Hamblett can be contacted at email@example.com.