United States of America v. Gabriel Elijah Kane Arkinson and Jamie Nicole Milsten

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

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A federal jury in U.S. District Court in Helena on Thursday convicted two defendants of robbery and firearms charges in a drug-related home invasion. The four-day trial that began on Monday.



The jury found Gabriel Elijah Kane Arkinson, 32, Billings, and Jamie Nicole Milsten, 35, Helena, each guilty of conspiracy to commit robbery affecting commerce, robbery affecting commerce and brandishing a firearm in furtherance of a crime of violence.



Each defendant faces a maximum 20 years in prison, a $250,000 fine and five years of supervised release for the conspiracy and robbery convictions, plus a mandatory minimum seven years to life in prison consecutive to any other charge on the firearm charge.



A third defendant, Melissa Dawn Shurtliff, 28, Helena, pleaded guilty earlier to robbery affecting commerce and possession of a firearm in furtherance of a crime of violence.



Prosecutors at trial presented evidence that Arkinson and Milsten entered the residence of a Helena drug dealer on April 23, 2017 to steal drugs and drug proceeds. Arkinson was armed with a sawed-off shotgun, and Milsten searched the residence for drugs and money. A small amount of methamphetamine, U.S. currency and a cell phone were stolen. Shurtliff planned the robbery and acted as the getaway driver.



Senior U.S. District Judge Charles C. Lovell presided at the trial. Sentencing for the three defendants is scheduled for April 9, 2019. The defendants are in custody.



The case was prosecuted by Assistant U.S. Attorney Tom Bartleson and investigated by the FBI and the Montana Regional Violent Crime Task Force.



This case is part of Project Safe Neighborhood (PSN), a program bringing together all levels of law enforcement and the communities they serve to reduce violent crime and to make communities safer. Attorney General Jeff Sessions reinvigorated PSN in 2017 as part of the Department of Justice’s renewed focus on targeting violent criminals, directing all U.S. Attorney’s Offices to work in partnership with federal, state, local and tribal law enforcement and the local community to develop effective, locally-based strategies to reduce violent crime.

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.

Guilty