Date: 10-09-2018

Case Style:

Case Number: 6:18-cr-00010-CCL

Judge: Charles C. Lovell

Court: United States District Court for the District of Montana (Lewis and Clark County)

Plaintiff's Attorney: Tom Bartleson

Defendant's Attorney: Palmer Hoovestal for Jamie Nicole Milsten

Michael Donahee - FPD for Gabriel Elijah Kane Arkinson

Description: Helena, MT - Federal jury in Helena convicts two in home invasion case

Charge:

18:1951(a) CONSPIRACY TO COMMIT ROBBERY AFFECTING COMMERCE
(1)
18:1951(a) and 2 ROBBERY AFFECTING COMMERCE. PINKERTON THEORY OF LIABILITY
(2)
924:(c)(1)(A)(i) and (ii), and 2 POSSESSION OF A FIREARM IN FURTHERANCE OF A CRIME OF VIOLENCE. PINKERTON THEORY OF LIABILITY
(3)


924. Penalties
(a)(1) Except as otherwise provided in this subsection,
subsection (b), (c), (f), or (p) of this section,
or in section 929, whoever—
(A) knowingly makes any false statement or
representation with respect to the information
required by this chapter to be kept in the
records of a person licensed under this chapter
or in applying for any license or exemption or
relief from disability under the provisions of
this chapter;
(B) knowingly violates subsection (a)(4), (f),
(k), or (q) of section 922;
(C) knowingly imports or brings into the
United States or any possession thereof any
firearm or ammunition in violation of section
922(l); or
(D) willfully violates any other provision of
this chapter,
shall be fined under this title, imprisoned not
more than five years, or both.
(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.
(3) Any licensed dealer, licensed importer, licensed
manufacturer, or licensed collector who
knowingly—
(A) makes any false statement or representation
with respect to the information required
by the provisions of this chapter to be
kept in the records of a person licensed under
this chapter, or
(B) violates subsection (m) of section 922,
shall be fined under this title, imprisoned not
more than one year, or both.
(4) Whoever violates section 922(q) shall be
fined under this title, imprisoned for not more
than 5 years, or both. Notwithstanding any
other provision of law, the term of imprisonment
imposed under this paragraph shall not
run concurrently with any other term of imprisonment
imposed under any other provision of
law. Except for the authorization of a term of
imprisonment of not more than 5 years made in
this paragraph, for the purpose of any other law
a violation of section 922(q) shall be deemed to
be a misdemeanor.
(5) Whoever knowingly violates subsection (s)
or (t) of section 922 shall be fined under this
title, imprisoned for not more than 1 year, or
both.
(6)(A)(i) A juvenile who violates section 922(x)
shall be fined under this title, imprisoned not
more than 1 year, or both, except that a juvenile
described in clause (ii) shall be sentenced to probation
on appropriate conditions and shall not
be incarcerated unless the juvenile fails to comply
with a condition of probation.
(ii) A juvenile is described in this clause if—
(I) the offense of which the juvenile is
charged is possession of a handgun or ammunition
in violation of section 922(x)(2); and
(II) the juvenile has not been convicted in
any court of an offense (including an offense
under section 922(x) or a similar State law, but
not including any other offense consisting of
conduct that if engaged in by an adult would
not constitute an offense) or adjudicated as a
juvenile delinquent for conduct that if engaged
in by an adult would constitute an offense.
(B) A person other than a juvenile who knowingly
violates section 922(x)—
(i) shall be fined under this title, imprisoned
not more than 1 year, or both; and
(ii) if the person sold, delivered, or otherwise
transferred a handgun or ammunition to a juvenile
knowing or having reasonable cause to
know that the juvenile intended to carry or
otherwise possess or discharge or otherwise
use the handgun or ammunition in the commission
of a crime of violence, shall be fined
under this title, imprisoned not more than 10
years, or both.
(7) Whoever knowingly violates section 931
shall be fined under this title, imprisoned not
more than 3 years, or both.
(b) Whoever, with intent to commit therewith
an offense punishable by imprisonment for a
term exceeding one year, or with knowledge or
reasonable cause to believe that an offense punishable
by imprisonment for a term exceeding
one year is to be committed therewith, ships,
transports, or receives a firearm or any ammunition
in interstate or foreign commerce shall
be fined under this title, or imprisoned not more
than ten years, or both.
(c)(1)(A) Except to the extent that a greater
minimum sentence is otherwise provided by this
subsection or by any other provision of law, any
person who, during and in relation to any crime
of violence or drug trafficking crime (including
a crime of violence or drug trafficking crime
that provides for an enhanced punishment if
committed by the use of a deadly or dangerous
weapon or device) for which the person may be
prosecuted in a court of the United States, uses
or carries a firearm, or who, in furtherance of
any such crime, possesses a firearm, shall, in addition
to the punishment provided for such
crime of violence or drug trafficking crime—
(i) be sentenced to a term of imprisonment
of not less than 5 years;
(ii) if the firearm is brandished, be sentenced
to a term of imprisonment of not less than 7
years; and
(iii) if the firearm is discharged, be sentenced
to a term of imprisonment of not less
than 10 years.
(B) If the firearm possessed by a person convicted
of a violation of this subsection—
(i) is a short-barreled rifle, short-barreled
shotgun, or semiautomatic assault weapon,
the person shall be sentenced to a term of imprisonment
of not less than 10 years; or
(ii) is a machinegun or a destructive device,
or is equipped with a firearm silencer or firearm
muffler, the person shall be sentenced to
a term of imprisonment of not less than 30
years.
(C) In the case of a second or subsequent conviction
under this subsection, the person shall—
(i) be sentenced to a term of imprisonment
of not less than 25 years; and
(ii) if the firearm involved is a machinegun
or a destructive device, or is equipped with a
firearm silencer or firearm muffler, be sentenced
to imprisonment for life.
(D) Notwithstanding any other provision of
law—
(i) a court shall not place on probation any
person convicted of a violation of this subsection;
and
(ii) no term of imprisonment imposed on a
person under this subsection shall run concurrently
with any other term of imprisonment
imposed on the person, including any term of
imprisonment imposed for the crime of violence
or drug trafficking crime during which
the firearm was used, carried, or possessed.
(2) For purposes of this subsection, the term
‘‘drug trafficking crime’’ means any felony 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.
(3) For purposes of this subsection the term
‘‘crime of violence’’ means an offense that is a
felony and—
(A) has as an element the use, attempted
use, or threatened use of physical force
against the person or property of another, or
(B) that by its nature, involves a substantial
risk that physical force against the person or
property of another may be used in the course
of committing the offense.
(4) For purposes of this subsection, the term
‘‘brandish’’ means, with respect to a firearm, to
display all or part of the firearm, or otherwise
make the presence of the firearm known to another
person, in order to intimidate that person,
regardless of whether the firearm is directly
visible to that person.
(5) Except to the extent that a greater minimum
sentence is otherwise provided under this
subsection, or by any other provision of law, any
person who, during and in relation to any crime
of violence or drug trafficking crime (including
a crime of violence or drug trafficking crime
that provides for an enhanced punishment if
committed by the use of a deadly or dangerous
weapon or device) for which the person may be
prosecuted in a court of the United States, uses
or carries armor piercing ammunition, or who,
in furtherance of any such crime, possesses
armor piercing ammunition, shall, in addition
to the punishment provided for such crime of
violence or drug trafficking crime or conviction
under this section—
(A) be sentenced to a term of imprisonment
of not less than 15 years; and
(B) if death results from the use of such ammunition—
(i) if the killing is murder (as defined in
section 1111), be punished by death or sentenced
to a term of imprisonment for any
term of years or for life; and
(ii) if the killing is manslaughter (as defined
in section 1112), be punished as provided
in section 1112.
(d)(1) Any firearm or ammunition involved in
or used in any knowing violation of subsection
(a)(4), (a)(6), (f), (g), (h), (i), (j), or (k) of section
922, or knowing importation or bringing into the
United States or any possession thereof any firearm
or ammunition in violation of section 922(l),
or knowing violation of section 924, or willful
violation of any other provision of this chapter
or any rule or regulation promulgated thereunder,
or any violation of any other criminal
law of the United States, or any firearm or ammunition
intended to be used in any offense referred
to in paragraph (3) of this subsection,
where such intent is demonstrated by clear and
convincing evidence, shall be subject to seizure
and forfeiture, and all provisions of the Internal
Revenue Code of 1986 relating to the seizure, forfeiture,
and disposition of firearms, as defined in
section 5845(a) of that Code, shall, so far as applicable,
extend to seizures and forfeitures under
the provisions of this chapter: Provided, That
upon acquittal of the owner or possessor, or dismissal
of the charges against him other than
upon motion of the Government prior to trial, or
lapse of or court termination of the restraining
order to which he is subject, the seized or relinquished
firearms or ammunition shall be returned
forthwith to the owner or possessor or to
a person delegated by the owner or possessor unless
the return of the firearms or ammunition
would place the owner or possessor or his delegate
in violation of law. Any action or proceeding
for the forfeiture of firearms or ammunition
shall be commenced within one hundred and
twenty days of such seizure.
(2)(A) In any action or proceeding for the return
of firearms or ammunition seized under the
provisions of this chapter, the court shall allow
the prevailing party, other than the United
States, a reasonable attorney’s fee, and the
United States shall be liable therefor.
(B) In any other action or proceeding under
the provisions of this chapter, the court, when it
finds that such action was without foundation,
or was initiated vexatiously, frivolously, or in
bad faith, shall allow the prevailing party, other
than the United States, a reasonable attorney’s
fee, and the United States shall be liable therefor.
(C) Only those firearms or quantities of ammunition
particularly named and individually
identified as involved in or used in any violation
of the provisions of this chapter or any rule or
regulation issued thereunder, or any other
criminal law of the United States or as intended
to be used in any offense referred to in paragraph
(3) of this subsection, where such intent is
demonstrated by clear and convincing evidence,
shall be subject to seizure, forfeiture, and disposition.
(D) The United States shall be liable for attorneys’
fees under this paragraph only to the extent
provided in advance by appropriation Acts.
(3) The offenses referred to in paragraphs (1)
and (2)(C) of this subsection are—
(A) any crime of violence, as that term is defined
in section 924(c)(3) of this title;
(B) any offense punishable under the Controlled
Substances Act (21 U.S.C. 801 et seq.) or
the Controlled Substances Import and Export
Act (21 U.S.C. 951 et seq.);
(C) any offense described in section 922(a)(1),
922(a)(3), 922(a)(5), or 922(b)(3) of this title,
where the firearm or ammunition intended to
be used in any such offense is involved in a
pattern of activities which includes a violation
of any offense described in section
922(a)(1), 922(a)(3), 922(a)(5), or 922(b)(3) of this
title;
(D) any offense described in section 922(d) of
this title where the firearm or ammunition is
intended to be used in such offense by the
transferor of such firearm or ammunition;
(E) any offense described in section 922(i),
922(j), 922(l), 922(n), or 924(b) of this title; and
(F) any offense which may be prosecuted in
a court of the United States which involves
the exportation of firearms or ammunition.
(e)(1) In the case of a person who violates section
922(g) of this title and has three previous
convictions by any court referred to in section
922(g)(1) of this title for a violent felony or a serious
drug offense, or both, committed on occasions
different from one another, such person
shall be fined under this title and imprisoned
not less than fifteen years, and, notwithstanding
any other provision of law, the court shall not
suspend the sentence of, or grant a probationary
sentence to, such person with respect to the conviction
under section 922(g).
(2) As used in this subsection—
(A) the term ‘‘serious drug offense’’ means—
(i) an offense 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 for which a maximum term of imprisonment
of ten years or more is prescribed by
law; or
(ii) an offense under State law, involving
manufacturing, distributing, or possessing
with intent to manufacture or distribute, a
controlled substance (as defined in section
102 of the Controlled Substances Act (21
U.S.C. 802)), for which a maximum term of
imprisonment of ten years or more is prescribed
by law;
(B) the term ‘‘violent felony’’ means any
crime punishable by imprisonment for a term
exceeding one year, or any act of juvenile delinquency
involving the use or carrying of a
firearm, knife, or destructive device that
would be punishable by imprisonment for such
term if committed by an adult, that—
(i) has as an element the use, attempted
use, or threatened use of physical force
against the person of another; or
(ii) is burglary, arson, or extortion, involves
use of explosives, or otherwise involves
conduct that presents a serious potential
risk of physical injury to another; and
(C) the term ‘‘conviction’’ includes a finding
that a person has committed an act of juvenile
delinquency involving a violent felony.
(f) In the case of a person who knowingly violates
section 922(p), such person shall be fined
under this title, or imprisoned not more than 5
years, or both.
(g) Whoever, with the intent to engage in conduct
which—
(1) constitutes an offense listed in section
1961(1), (2) 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,
(3) violates any State law relating to any
controlled substance (as defined in section
102(6) of the Controlled Substances Act (21
U.S.C. 802(6))), or
(4) constitutes a crime of violence (as defined
in subsection (c)(3)),
travels from any State or foreign country into
any other State and acquires, transfers, or attempts
to acquire or transfer, a firearm in such
other State in furtherance of such purpose, shall
be imprisoned not more than 10 years, fined in
accordance with this title, 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.
(i)(1) A person who knowingly violates section
922(u) shall be fined under this title, imprisoned
not more than 10 years, or both.
(2) Nothing contained in this subsection shall
be construed as indicating an intent on the part
of Congress to occupy the field in which provisions
of this subsection operate to the exclusion
of State laws on the same subject matter, nor
shall any provision of this subsection be construed
as invalidating any provision of State
law unless such provision is inconsistent with
any of the purposes of this subsection.
(j) A person who, in the course of a violation
of subsection (c), causes the death of a person
through the use of a firearm, shall—
(1) if the killing is a murder (as defined in
section 1111), be punished by death or by imprisonment
for any term of years or for life;
and
(2) if the killing is manslaughter (as defined
in section 1112), be punished as provided in
that section.
(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.
(l) A person who steals any firearm which is
moving as, or is a part of, or which has moved
in, interstate or foreign commerce shall be imprisoned
for not more than 10 years, fined under
this title, or both.
(m) A person who steals any firearm from a licensed
importer, licensed manufacturer, licensed
dealer, or licensed collector shall be fined
under this title, imprisoned not more than 10
years, or both.
(n) A person who, with the intent to engage in
conduct that constitutes a violation of section
922(a)(1)(A), travels from any State or foreign
country into any other State and acquires, or
attempts to acquire, a firearm in such other
State in furtherance of such purpose shall be imprisoned
for not more than 10 years.
(o) A person who conspires to commit an offense
under subsection (c) shall be imprisoned
for not more than 20 years, fined under this
title, or both; and if the firearm is a machinegun
or destructive device, or is equipped with a firearm
silencer or muffler, shall be imprisoned for
any term of years or life.
(p) PENALTIES RELATING TO SECURE GUN STORAGE
OR SAFETY DEVICE.—
(1) IN GENERAL.—
(A) SUSPENSION OR REVOCATION OF LICENSE;
CIVIL PENALTIES.—With respect to each violation
of section 922(z)(1) by a licensed manufacturer,
licensed importer, or licensed
dealer, the Secretary may, after notice and
opportunity for hearing—
(i) suspend for not more than 6 months,
or revoke, the license issued to the licensee
under this chapter that was used to
conduct the firearms transfer; or
(ii) subject the licensee to a civil penalty
in an amount equal to not more than
$2,500.
(B) REVIEW.—An action of the Secretary
under this paragraph may be reviewed only
as provided under section 923(f).
(2) ADMINISTRATIVE REMEDIES.—The suspension
or revocation of a license or the imposition
of a civil penalty under paragraph (1)
shall not preclude any administrative remedy
that is otherwise available to the Secretary.

Outcome: Guilty

Plaintiff's Experts:

Defendant's Experts:

Comments: