The opinion of the court was delivered by: John F. Keenan, United States District Judge:
Before the Court is a series of pre-trial motions filed by Defendant Robert Lee Miles ("Defendant" or "Miles"). For the reasons that follow, the Defendant's motions are denied in part and granted in part.
Miles was arrested in July 2011 at a Manhattan subway station after he walked between subway cars. Upon bringing Miles to the precinct station house, the police recovered an unloaded handgun and his cell phone and sought to question him. Miles claims not to recall being advised of his Miranda rights, yet he made a handwritten statement in which he explained that he needed money and that a friend gave him the gun so that Miles could take advantage of the Gun Amnesty Program, through which individuals can bring handguns to police precincts in exchange for $100. In defense counsel's brief on this motion it is asserted that Miles had boarded the subway to get to the 30th Police Precinct and return the gun. (Def. Mem. at 3-5).
The above facts are taken from the Defendant's Memorandum of Law, as Miles's Declaration accompanying his motion papers does not provide specifics about his story. (Miles Aff. at 2). He attests to no details regarding the precinct where he intended to deposit the gun for money, which subway line he boarded, what direction he was heading, or why he decided to walk between the cars.
Defendant has moved for (1) dismissal of the indictment under an "innocent possession" defense, or, in the alternative, an order permitting the jury to consider such a defense; (2) dismissal of the indictment on the ground of entrapment by estoppel and/or entrapment, or, in the alternative, an order permitting the jury to consider these defenses; (3) suppression of the handgun recovered upon his arrest; (4) suppression of post-arrest oral statements; (5) suppression of a post-arrest written statement; (6) suppression of the call log and contents of his cellular telephone; (7) preclusion of the contents of his cellular telephone; (8) preclusion of recorded phone calls from Rikers Island; (9) an order precluding the Government from introducing evidence about his criminal record or the details of his prior arrests or convictions, even if he testifies; (10) an order precluding the Government from referring to him, in form or substance, as a "felon" or "convict" (in return, he has offered to stipulate to his prior convictions at trial); (11) an order for a bill of particulars listing the recorded phone calls from Rikers Island that the Government intends to introduce at trial and transcripts of those recordings, as well as a bill of particulars listing all convictions that the Government believes establish that Miles is subject to a mandatory minimum fifteen-year sentence under the Armed Career Criminal Act; and (12) early production of 3500 material.
Defendant has argued that New York City's Gun Amnesty Program entitles him to invoke an "innocent possession" defense. According to Defendant, "because Mr. Miles handled the gun for a very short period of time and for a good reason (i.e., to surrender it to New York City authorities for cash)," the indictment must be dismissed under an "innocent possession" defense.
The Second Circuit has not ruled on whether an "innocent possession" defense is applicable to the statute proscribing felons from gun possession, 18 U.S.C. § 922(g) ("Section 922(g)"). The First, Fourth, Fifth, Seventh, Ninth, and Eleventh Circuits have refused to read an "innocent possession" defense into Section 922(g). Only the D.C. Circuit has permitted an innocent possession defense to Section 922(g), but has limited it to cases in which the defendant can demonstrate "(1) the firearm was attained innocently and held with no illicit purpose and (2) possession of the firearm was transitory - i.e., in light of the circumstances presented, there is a good basis to find that the defendant took adequate measures to rid himself of possession of the firearm as promptly [and as reasonably as] possible." United States v. Mason, 233 F.3d 619, 624 (D.C. Cir. 2000).
The Court joins others in this district, as well as the majority of Circuits, in finding that an "innocent possession" defense to Section 922(g) would run afoul of both the plain language and the underlying purpose of the statute. Section 922(g) provides that "[i]t shall be unlawful for any person . . . who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year . . . [to] possess in or affecting commerce, any firearm or ammunition." 18 U.S.C. § 922(g). "Possession" of a firearm is the crime, rendering "innocent possession" an oxymoron.
In addition, the penalties section of the law provides that "[w]hoever knowingly violates [subsection (g)] shall be fined as provided in this title, imprisoned not more than 10 years, or both." 18 U.S.C. § 924(a)(2) (emphasis added). The "knowing" standard stands in contrast to violations of other provisions of the statute, which require that a person act "willfully." See, e.g., 18 U.S.C. § 924(a)(1)(D). To act willfully, a defendant must have known that his conduct was against the law. Bryan v. United States, 524 U.S. 184, 192 (1998). To act knowingly, however, the defendant need only know the facts that constituted the offense. Id. at 193. Thus, to violate section 922(g), "a felon only must know that he possesses a gun; his purpose in doing so, whether good or bad, is irrelevant." United States v. Gregg, No. 01 Cr. 501, 2002 WL 1808235, at *5 (S.D.N.Y. Aug. 6, 2002) (rejecting an "innocent possession" defense for a Section 922(g) charge).
Turning to the statute's legislative history, the Court finds it instructive that an early version of the penalties section did include a willfulness requirement for each subsection of Section 922, including Section 922(g). Many legislators, however, argued that for serious offenses -- such as gun possession by felons -- the Government should not be required to prove that the defendant had any intent to violate the law. As a result, the mens rea was reduced to knowledge. The Firearms Owners' Protection Act, 17 Cumb. L. Rev. 585, 615--17, 647--48 (1987). Thus, knowing possession of a firearm by a felon - whether innocent or willful - is a violation of section 922(g).
Moreover, the Supreme Court has admonished that "[w]hether, as a policy matter, an exemption [to a statute] should be created is a question for legislative judgment, not judicial inference." United States v. Rutherford, 442 U.S. 544, 559 (1979). It is not for the courts, but rather for Congress, to create the defense of "innocent possession." Indeed, Congress has done so in different contexts: it created a specific exemption that allows for possession of firearms by those convicted of "offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices." See
18 U.S.C. § 921(a)(20)(A). An additional provision exempts antique guns, which are not considered a "firearm" for the purposes of the statute and, therefore, may be legally possessed by felons. 18 U.S.C. § 921(a)(3), (16). While Congress has decided to create certain exemptions, it notably has not created one for felons who possess a gun innocently.
The Court also notes that even if an "innocent possession" defense were available in this Circuit, it would not be available to this Defendant, based upon his affidavit, which is meaningless on its face. Defendant does not provide any specificity about his plan to avail himself of the Gun Amnesty Program, such as the address where he obtained the gun (or even a cross street). He also does not specify which precinct he was going to or explain which subway route he intended to take. Defendant's counsel has made representations that he was taking the subway from 145th Street to 168th Street and then would change trains to go south to the 30th precinct (Tr. of July 22, 2012 at 4) -- a route that the Court observed is bizarre and inefficient because he could have gone one stop north to 155th Street from 145th Street -- but Miles has not sworn to any of these facts. As a result, there is no basis for Defendant's "innocent possession" defense.
Finally, even if such a defense were recognized, the facts of this case would not warrant the defense of innocent possession under the D.C. Circuit's decision in Mason (which is not controlling precedent here). Even if the Defendant obtained the gun innocently and possessed it with no unlawful purpose, the second prong of the Mason test requires that the possession in question be transitory, which Miles's possession was not. Mason, 233 F.3d at 624. According to his statement, the Defendant carried the gun and intended to ride the subway with it. For possession to be "transitory," the defendant must have taken "adequate measures to rid himself of possession of the firearm as promptly as reasonably possible." Id. at 624. Here, the Defendant did not relinquish the gun ...