Miller v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Fitzpatrick, Annunziata and Senior Judge Duff
Argued at Alexandria, Virginia

MARTIN M. MILLER
OPINION BY
v. Record No. 2040-96-4 JUDGE ROSEMARIE ANNUNZIATA
NOVEMBER 4, 1997
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Robert W. Wooldridge, Jr., Judge
Judith M. Barger, Assistant Public Defender,
for appellant.

Marla Graff Decker, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.

Martin M. Miller was convicted for knowingly and

intentionally possessing a firearm after having been previously

convicted of a felony, in violation of Code § 18.2-308.2.

Raising an issue of first impression in the Commonwealth, Miller

argues that his conviction was obtained in violation of his right

to due process of law. We agree, reverse his conviction and

dismiss the charge against him.

I.

Miller, a convicted felon, knew he was prohibited from

possessing a firearm. Knowing the prohibition extended to his

hunting activities, Miller, a lifetime hunter, sold his hunting

guns following his conviction. He continued to hunt with a bow

and arrows until his bow was stolen.

Wanting to pursue his sport, Miller sought to determine
whether he, as a convicted felon, could possess a muzzle-loading

rifle. Miller knew that Virginia law distinguished

muzzle-loading rifles from other guns. Specifically, he knew

that Virginia did not require a criminal background check to be

performed on individuals seeking to purchase muzzle-loading

rifles. He also knew that Virginia defined different hunting

seasons for and issued different licenses to hunters using

muzzle-loading rifles.
Miller testified that he "talked to everyone who [he]

thought might know the answer." He spoke with his probation

officer, who told him he could have a muzzle-loading rifle. He

also inquired of the Federal Bureau of Alcohol, Tobacco and

Firearms (ATF) and the Virginia Department of Game and Inland

Fisheries (VDGIF), and representatives from each, who knew Miller

was a convicted felon, told him he could have a muzzle loader.

Miller acknowledged that no one told him he could possess a

"firearm" and that a muzzle loader was "in a sense" a firearm

because "it fires." Relying on the interpretation provided by

the government officials contacted, Miller purchased a muzzle

loader and obtained a license to hunt with it. In short, Miller,

a convicted felon, knowingly and intentionally possessed a

muzzle-loading rifle.

Miller's possession of the muzzle loader was discovered by

police officers during an unrelated search of the house in which

Miller was living. Charged with possession of the gun as a

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convicted felon under Code § 18.2-308.2, Miller argued at trial

that his muzzle loader was not a "firearm" within the meaning of

the statute. The trial court disagreed, and Miller has now

abandoned that contention. Thus, for purposes of this appeal, we

will assume without deciding that Miller's muzzle loader was a

"firearm" within the meaning of Code § 18.2-308.2.

Miller argued at trial that his "good faith reliance" on the

advice he received regarding the propriety of his possession of

the muzzle loader, regardless of the accuracy of that advice,

precludes his conviction. His argument is grounded in the due

process clause of the Fourteenth Amendment. The trial court

believed Miller's testimony concerning the content of the

information he received but concluded that the sources of

Miller's information were not sufficient to preclude his

conviction on due process grounds. 1

II.

1
In particular, the court stated, "I don't believe that his
conversations with ATF or [VDGIF] . . . come close to rising to
the level of something upon which he could properly rely in his
position." Continuing, the trial court stated that it was "much
more concerned" about Miller's conversation with his probation
officer. The court stated, "the probation officer acts in a much
more direct way with this Defendant and is an arm of the
Commonwealth for this Defendant's purposes." "But," the court
found,

I am unpersuaded actually, based upon the
testimony that was provided, that the
probation officer was in such a position
relative to this Defendant that would rise to
the level of the authorities in the cases in
which this defense has been recognized.

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 Reflecting the axiom that everyone is "presumed to know the

law," the common law rule that "ignorance of the law is no

excuse" admitted of few exceptions. See People v. Studifin, 504

N.Y.S.2d 608, 609 (N.Y. Sup. Ct. 1986); Wimbish v. Commonwealth,

75 Va. 839, 844 (1880). The common law position was based on the

fact that most common law crimes were malum in se. Studifin, 504

N.Y.S.2d at 609. Seen as "inherently and essentially evil . . .

without any regard to the fact of [their] being noticed or

punished by the law of the state," Black's Law Dictionary 959
(6th ed. 1990), ignorance of the prohibition of such crimes was

simply untenable.

The rationale underlying the rule is less compelling for

crimes that are malum prohibitum, viz., acts that are "wrong

because prohibited," not by virtue of their inherent character.

Black's Law Dictionary 960 (6th ed. 1990); see generally

Studifin, 504 N.Y.S.2d at 609-10. Yet, the proposition that

ignorance of the law is no excuse generally maintains with

respect to crimes malum prohibitum, largely for pragmatic
purposes. Studifin, 504 N.Y.S.2d at 610; see also 21 Am. Jur. 2d

Criminal Law § 142 (1981) (Without the rule, "chaos and

impossibility of law enforcement would ensue.") (citation

omitted). Although leading at times to seemingly "unfair"

results, rigid application of the rule promotes the policy it

serves: "to encourage people to learn and know the law." E.g.,
Clark v. State, 739 P.2d 777, 779 (Ak. 1987); see also Wimbish,

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75 Va. at 845; Oliver W. Holmes, The Common Law 48 (1881) ("It is

no doubt true that there are many cases in which the criminal

could not have known that he was breaking the law, but to admit

the excuse at all would be to encourage ignorance where the

law-maker has determined to make men know and obey . . . .").

Nonetheless, "[w]ith `the increasing complexity of law, the

multiplication of crimes mala prohibita, and a more exact

definition of fundamental principles of criminal liability,'

certain exceptions to the general rule have emerged." Studifin,

504 N.Y.S.2d at 610 (citation omitted). It is such an exception

that we address in the present case. 2

The exception at issue addresses the legal consequences of a

violation of the criminal law by an individual who takes measures

to learn what conduct the government has proscribed, but is

misadvised by the government itself. A number of states have

adopted statutes bearing on the subject, but Virginia has not.

See generally Jeffrey F. Ghent, Annotation, Criminal Law:
"Official Statement" Mistake of Law Defense, 89 A.L.R.4th 1026

(1991). 3 Miller, thus constrained to rely on constitutional
2
The defense Miller advances has been characterized as "`a
narrow exception to the general principle that ignorance of the
law is no defense,'" e.g., United States v. Aquino-Chacon, 109
F.3d 936, 938 (4th Cir. 1997) (quoting United States v.
Etheridge, 932 F.2d 318, 321 (4th Cir. 1991)), which should be
applied with "`great caution.'" United States v. Abcasis, 45
F.3d 39, 45 (2d Cir. 1995) (quoting United States v. Corso, 20
F.3d 521, 528 (2d Cir. 1994)).
3
A typical formulation of the exception is reflected in
§ 2.04(3)(b) of the Model Penal Code, which provides that a
belief that conduct does not legally constitute an offense is a

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principles for his defense, contends that his prosecution and

conviction for possessing a firearm violates his right to due

process of law.

The defense Miller advances grew from a trilogy of United

States Supreme Court cases, Raley v. Ohio, 360 U.S. 423 (1959);

Cox v. Louisiana, 379 U.S. 559 (1965); United States v.

Pennsylvania Chem. Corp., 411 U.S. 655 (1973) (PICCO). The

defendants in Raley were called to answer questions before the

Ohio State legislature's "Un-American Activities Commission."

The chairman of the Commission apprised the defendants that, at

the inquiry, they were entitled to rely upon the privilege

against self-incrimination. A state immunity statute, however,

deprived the defendants of the protection of the privilege.

After relying upon the privilege, the defendants were indicted

for failing to answer the Commission's questions. The Ohio

Supreme Court held that the defendants were presumed to know that

the law deprived them of the protection of the privilege and

that, therefore, they had committed an offense by failing to

answer the questions to which they asserted the privilege. The

United States Supreme Court reversed the convictions, finding
(..continued)
defense to a prosecution for that offense based on such conduct
when the defendant acts in reasonable reliance on an official
statement of the law, afterward determined to be invalid or
erroneous, contained in (1) a statute or other enactment; (2) a
judicial decision, opinion, or judgment; (3) an administrative
order or grant of permission; or (4) an official interpretation
of the public officer or body charged by law with responsibility
for the interpretation, administration, or enforcement of the law
defining the offense. Ghent, supra, at 1030.

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that "the Chairman of the Commission, who clearly appeared to be

the agent of the State in a position to give such assurances,

apprised [the defendants] that the privilege in fact existed."

360 U.S. at 437. The Court further noted that "other members of

the Commission and its counsel made statements which were totally

inconsistent with any belief in the applicability of the immunity

statute, and it is fair to characterize the whole conduct of the

inquiry . . . as identical with what it would have been if Ohio

had had no immunity statute at all." Id. at 438. The Court

found the representations of the Commission "active[ly]

misleading," not "simply vague or even contradictory," and

although the representations were legally erroneous, the

Commission was "the voice of the State most presently speaking to

the [defendants]." Id. at 438-39. The Court concluded that to

sustain the convictions "would be to sanction the most

indefensible sort of entrapment by the State--convicting a

citizen for exercising a privilege which the State clearly had

told him was available to him." Id. at 438.

The defendant in Cox was convicted for demonstrating "near"

a courthouse in violation of a Louisiana statute. The United

States Supreme Court reversed the conviction, finding that "the

highest police officials of the city, in the presence of the

Sheriff and Mayor, in effect told the demonstrators that they

could meet where they did." 379 U.S. at 571. The Court noted

the "lack of specificity" in the use of the word "near" in the

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statute, which the court found "foresees a degree of on the spot

administrative interpretation by officials charged with

responsibility for administering and enforcing it." Id. at 568.

The Court found it apparent that demonstrators "would

justifiably tend to rely on [an] administrative interpretation of

how `near' the courthouse a particular demonstration might take

place." Id. at 569. Applying Raley, the Court reversed the

defendant's conviction for demonstrating "near" the courthouse

after he had been told that his demonstration was not "near" the

courthouse. Id. at 571.

The defendant corporation in PICCO was convicted for

discharging industrial refuse into a river, in violation of § 13

of the Rivers and Harbors Act of 1899. In its regulations

promulgated under the Act, the Army Corps of Engineers had

consistently construed § 13 as limited to discharges that

affected navigation. PICCO's discharge was such that it would

not affect navigation. Relying on Raley and Cox, the Court

reversed the conviction, finding
[t]here can be no question that PICCO had a
right to look to the Corps of Engineers'
regulations for guidance. The Corps is the
responsible administrative agency under the
1899 Act, and "the rulings, interpretations
and opinions of the [responsible agency]
. . . , while not controlling upon the courts
by reason of their authority, do constitute a
body of experience and informed judgment to
which . . . litigants may properly resort for
guidance." Moreover, although the
regulations did not of themselves purport to
create or define the statutory offense in
question, it is certainly true that their
designed purpose was to guide persons as to

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 the meaning and requirements of the statute.

411 U.S. at 674 (citations omitted). The Court remanded the case

for a determination of whether PICCO's reliance was reasonable.

The defense derived from the Raley, Cox, PICCO trilogy

applies where a defendant has reasonably relied upon affirmative

assurances that certain conduct is lawful, when those assurances

are given by a public officer or body charged by law with

responsibility for defining permissible conduct with respect to

the offense at issue. The defense is a due process defense,
Raley, 360 U.S. at 437; Cox, 379 U.S. at 571, grounded in

"traditional notions of fairness inherent in our system of

criminal justice." PICCO, 411 U.S. at 674; United States v.

Caron, 64 F.3d 713, 715 (1st Cir. 1995) (applying standard of

fundamental fairness), modified in part on other grounds, 77 F.3d

1 (1st Cir. 1996), cert. denied, 116 S. Ct. 2569 (1996); United

States v. Howell, 37 F.3d 1197, 1204 (7th Cir. 1994); United

States v. Austin, 915 F.2d 363, 366 (8th Cir. 1990); United
States v. Hedges, 912 F.2d 1397, 1405 (11th Cir. 1990); United

States v. Conley, 859 F. Supp. 909, 932 (W.D. Pa. 1994); United

States v. Brady, 710 F. Supp. 290, 295 (D. Colo. 1989). See

generally Sean Connelly, Bad Advice: The Entrapment by Estoppel

Doctrine in Criminal Law, 48 U. Miami L. Rev. 627, 632 (1994)

(characterizing Raley and Cox as grounded in "substantive due

process" analysis).
Raley relied on prior United States Supreme Court cases

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addressing elementary notions of fairness in the criminal

process, and emphasized that "criminal sanctions are not

supportable if they are to be imposed under `vague and undefined'

commands (citing Lanzetta v. New Jersey, 306 U.S. 451 (1939)); or

if they are `inexplicably contradictory' (citing United States v.

Cardiff, 344 U.S. 174 (1952)); and certainly not if the

Government's conduct constitutes `active misleading' (citing

Johnson v. United States, 318 U.S. 189, 197 (1943))." United
States v. Laub, 385 U.S. 475, 487 (1967).

The due process argument is, in essence, "that the criminal

statute under which the defendant is being prosecuted cannot

constitutionally be applied to the defendant without violating

due process of law, where government officials have misled the

defendant into believing that his conduct was not prohibited."

Ghent, supra, at 1031; see also Studifin, 504 N.Y.S.2d at 610

("[F]or the state to prosecute someone for innocently acting upon

such mistaken advice is akin to throwing water on a man and
4
arresting him because he's wet.").
4
The defense has come to be known as "entrapment by
estoppel," although it is neither "entrapment," see Note,
Applying Estoppel Principles in Criminal Cases, 78 Yale L.J.
1046, 1046-47 (1969), nor "an estoppel at all in any meaningful
sense." Brady, 710 F. Supp. at 295. Indeed, the Supreme Court
has never used the term "entrapment by estoppel." Moreover,
neither Raley nor Cox use the word "estoppel," and it remains
unclear whether the Supreme Court considers PICCO to have been
decided on estoppel grounds. Compare Heckler v. Community Health
Services, 467 U.S. 51, 60 n.12 (1984) (suggesting PICCO decided
on estoppel grounds), with id. at 68 (Rehnquist, J., concurring
in the judgment) (stating that PICCO was not an estoppel case).
The "entrapment by estoppel" misnomer inhibits clear

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 The ultimate due process inquiry is whether a defendant's

conviction, for reasonably and in good faith doing that which he

was told he could do, is fundamentally unfair in light of the

content of the information he received and its source. The cases

addressing the defense demonstrate that the defendant must

establish, as a threshold matter, the legal sufficiency of the

content and source of the information received. See PICCO, 411

U.S. at 674-75 (establishing threshold determination that defense

was legally "available"). The application of the defense then

requires a factual determination whether the defendant's reliance

upon the information received was reasonable and in good faith.
See id. 5 The defendant bears the burden of establishing the
(..continued)
analysis and application of the defense, because the use of the
word "estoppel" unnecessarily places the due process basis for
the defense in conflict with the well-established principle that
"the Government may not be estopped on the same terms as any
other litigant." Heckler, 467 U.S. at 60; see also Sink v.
Commonwealth, 13 Va. App. 544, 548, 413 S.E.2d 658, 660 (1992)
("[T]he doctrine of estoppel does not prevent the Commonwealth
from enforcing laws in its governmental function.").
Furthermore, the use of the word "estoppel" improvidently
suggests that the dispositive analysis is grounded in the
application of agency principles rather than constitutional
concerns. See Brady, 710 F. Supp. at 295 ("[T]he doctrine stems
from the due process clause, not from the common law of contract,
equity or agency."); see also Austin, 915 F.2d at 366 (same);
Conley, 859 F. Supp. at 932 ("The focus of the Due Process
inquiry into fundamental fairness and substantial justice . . .
should not be arbitrarily constrained by concepts taken from
other contexts such as estoppel, actual authority or
deterrence.").
5
Of course, the reasonableness of a defendant's reliance is
inextricably linked to the content of the information received
and its source. See, e.g., Howell, 37 F.3d at 1204 (Reliance
must be reasonable "in light of the identity of the agent, the
point of law represented, and the substance of the
misrepresentation."). Ultimately, however, "reasonableness" can

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affirmative defense. See id. at 675; Howell, 37 F.2d at 1205. 6

With respect to content, the defense is available only where

the information upon which the defendant has relied is an

affirmative assurance that the conduct giving rise to the

conviction is lawful. In the absence of such an affirmative

assurance, the due process concerns that the defense is designed

to protect are not implicated, and the defense fails. See

Aquino-Chacon, 109 F.3d at 939; United States v. Lowenstein, 108

F.3d 80, 83 (6th Cir. 1997); United States v. Trevino-Martinez,
86 F.3d 65, 69 (5th Cir. 1996), cert. denied, 117 S. Ct. 1109

(1997); United States v. Neville, 82 F.3d 750, 761-62 (7th Cir.),

cert. denied, 117 S. Ct. 249 (1996); United States v. Achter, 52

F.3d 753, 755 (8th Cir. 1995); United States v. French, 46 F.3d

710, 714 (8th Cir. 1995); Howell, 37 F.3d at 1205; United States

v. Meraz-Valeta, 26 F.3d 992, 996 (10th Cir. 1994); United States
(..continued)
be determined only after a finding that the content and source of
the information are legally sufficient to invoke due process
concerns.
6
We note that the seriousness of the crime at issue as well
as other policy concerns may preclude the application of the
defense as a matter of law. See Cox, 379 U.S. at 569 ("Obviously
telling demonstrators how far from the courthouse steps is 'near'
the courthouse for purposes of a permissible peaceful
demonstration is a far cry from allowing one to commit, for
example, murder, or robbery."); Connelly, supra, at 636
(explaining that even where the technical elements of the defense
are found, the court could still refuse to apply the defense when
policy considerations so demand). See generally Note, supra, at
1060 (discussing nature of the offense at issue). Indeed, we
believe it could scarcely be said that an individual could
reasonably and in good faith rely on advice condoning the
commission of a serious crime. We find the present case to
invoke no such concern.

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v. Trancoso, 23 F.3d 612, 615 (1st Cir. 1994); United States v.

Nichols, 21 F.3d 1016, 1018 (10th Cir. 1994); United States v.

Corso, 20 F.3d 521, 528 (2d Cir. 1994); United States v. Woodley,

9 F.3d 774, 779 (9th Cir. 1993); United States v. Bazargan, 992

F.2d 844, 849 (8th Cir. 1993); United States v. Clark, 986 F.2d

65, 69 (4th Cir. 1993); United States v. Long, 977 F.2d 1264,

1270-71 (8th Cir. 1992); United States v. LaChapelle, 969 F.2d

632, 637 (8th Cir. 1992); United States v. Hurst, 951 F.2d 1490,

1499 (6th Cir. 1991); United States v. Brebner, 951 F.2d 1017,
1025 (9th Cir. 1991); United States v. Smith, 940 F.2d 710, 715

(1st Cir. 1991); United States v. Paez, 866 F. Supp. 62, 66

(D.P.R. 1994); Conley, 859 F. Supp. at 934.

As to the source of the information, it must be established

that the information was received from a "government official."

See Clark, 986 F.2d at 69 (taxidermist not government official);

United States v. Indelicato, 887 F. Supp. 23, 25 (D. Mass. 1995),

modified in part on other grounds, 97 F.3d 627 (1st Cir. 1996),
cert. denied, 117 S. Ct. 1013 (1997) (private attorney not

government official). Compare Howell, 37 F.3d at 1206 (private

firearms dealer licensed by government not government official),

United States v. Billue, 994 F.2d 1562, 1568-69 (11th Cir. 1993)

(same), and Austin, 915 F.2d at 366-67 (same), with United States

v. Tallmadge, 829 F.2d 767, 774 (9th Cir. 1987) (firearms

licensee is government official). Indeed, "[t]his is necessary

as a matter of constitutional law because the Due Process Clause

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. . . is limited to `state action.'" Connelly, supra, at 633.

However, a government official's status as "state actor" has

not alone been sufficient to invoke the defense in cases

recognizing its availability. The issue is not whether an

"agent" of the state has bound the government by his or her word.

The issue is whether convicting an individual who has reasonably

relied on the advice of a state actor is so fundamentally unfair

as to raise due process concerns. Such concerns are implicated

only when the source of the information is a public officer or

body charged by law with responsibility for defining permissible

conduct with respect to the offense at issue. See Raley, 360

U.S. at 439 (source of information was Commission conducting

inquiry at which defendants asserted privilege against

self-incrimination); Cox, 379 U.S. at 568 (sources of information

were highest police officials of city, who were "charged with

responsibility for administering and enforcing" statute by virtue

of legislature's use of word "near," which "fore[saw] a degree of

on-the-spot administrative interpretation" of permissible

conduct); PICCO, 411 U.S. at 674 (source was Corps of Army
Engineers, which was "the responsible administrative agency under

the [Act defining the offense]" and whose "`rulings,

interpretations and opinions . . . constitute a body of

experience and informed judgment to which . . . litigants may

properly resort for guidance'" as to what conduct was

permissible); Abcasis, 45 F.3d at 43 (source was law enforcement

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agent who allegedly solicited defendant to engage in otherwise

criminal conduct as a cooperating informant); United States v.

Thompson, 25 F.3d 1558, 1565 (11th Cir. 1994) (same); Hedges, 912

F.2d at 1405 (source was Air Force Standards of Conduct Officer

who by regulations and direct orders was charged with advising

officer personnel of conflict of interest problems and who

allegedly advised defendant prosecuted under conflict of interest

statute that his conduct did not amount to a conflict of

interest); Brady, 710 F. Supp. at 295 (source was state judge who
had constitutional duty to interpret and apply federal law);

Commonwealth v. Twitchell, 617 N.E.2d 609, 619 (Mass. 1993)

(source was State Attorney General, who was "the chief law

officer of the Commonwealth, with the power to set a unified and

consistent legal policy for the Commonwealth," was "statutorily

empowered to `give his opinion upon questions of law submitted to

him,'" and was "acting in an area of his official

responsibilities" in issuing opinion upon which defendants

allegedly relied); Tallmadge, 829 F.2d at 774 (source was federal
firearms licensee charged by Congress with affirmative duty to

question customers concerning criminal record and required by

Treasury Department to inform buyers concerning the restrictions

imposed by Congress on the purchase of firearms). 7

Many cases involve a defendant who seeks to invoke the
7
But see Howell, 37 F.3d at 1206 (private firearms dealer
not even "state actor"); Billue, 994 F.2d at 1568-69 (same);
Austin, 915 F.2d at 366-67 (same).

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defense as a bar to prosecution by one sovereign for advice

received from an official of another sovereign. The defense has

been nearly universally rejected in this dual-sovereign context.

See generally Caron, 64 F.3d at 715-16. The only exceptions are

cases where a defendant has relied on the advice of a state judge

with respect to federal law. These cases are thought to raise

sufficient fairness concerns to warrant application of the

defense as a bar to federal prosecution. Compare Brady, 710 F.

Supp. at 295, with United States v. Etheridge, 932 F.2d 318, 321
(4th Cir.), and United States v. Bruscantini, 761 F.2d 640, 642

(11th Cir.). Brady, which applied the defense, addressed the

fairness concerns inherent in that context by virtue of the state

court judge's constitutional duty to interpret and apply federal

law. Conversely, Bruscantini and Etheridge concluded that the

dual-sovereignty context eviscerated the fairness concerns giving

rise to the defense.
The rule of Cox and Raley is a narrow
exception to the general principle that
ignorance of the law is no defense. It was
prompted by the Court's observation that
permitting the government to prosecute
individuals who reasonably rely upon that
government's interpretation of the law would
constitute a kind of entrapment. Where,
however, the government that advises and the
government that prosecutes are not the same,
the entrapment problem is different.

Etheridge, 932 F.2d at 321 (quoting Bruscantini, 761 F.2d at

641-42). 8
8
Both Brady and Bruscantini were decided on fairness
grounds, notwithstanding Brady's criticism of Bruscantini as

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 III.

In the present case, the trial court found that Miller's

probation officer and representatives from ATF and VDGIF told

Miller that he could possess a muzzle-loading rifle. 9 The trial

court concluded that Miller had established the legal sufficiency

of the content of the information he received, viz., an

affirmative assurance that certain conduct--his possession of the

muzzle loader--was lawful. Cf. Aquino-Chacon, 109 F.3d at 939

(explaining that defendant must show more than "vague or even

contradictory" statements by government; must demonstrate that

there was "active misleading"); Clark, 986 F.2d at 69 (holding
observation upon which defendant allegedly relied not an

"assurance").

Moreover, there can be no doubt that the sources upon which

appellant relied--a federal ATF agent, a VDGIF agent, and his

probation officer--were "state actors." Cf. Clark, 986 F.2d at

69 (taxidermist not government official); Indelicato, 887 F.

Supp. at 25 (private attorney not government official). The

determinative issue, therefore, is whether these sources were

legally sufficient to invoke the due process defense, viz.,
whether the sources were charged by law with responsibility for

(..continued)
relying on agency principles.
9
Contrary to the Commonwealth's contention, the trial court
admitted for the truth of the matter asserted appellant's
testimony as to what his probation officer told him. The trial
court deemed the hearsay to be an admission by the Commonwealth.

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defining permissible conduct with respect to offense for which

Miller was convicted. 10

We hold that Miller's case fails as a matter of law with

respect to the ATF agent and the VDGIF agent. Neither of those

agents was charged by law with responsibility for defining

permissible conduct under Code § 18.2-308.2. The ATF agent,

although arguably charged with such responsibility under federal

firearms laws, has no such duty with respect to Virginia law.

The ATF officer's opinion as to whether Miller could possess a

muzzle loading rifle under Virginia law simply does not invoke

due process concerns in the Commonwealth of Virginia's bid to

prosecute Miller. See Etheridge, 932 F.2d at 321; Bruscantini,

761 F.2d at 642; Brady, 710 F. Supp. at 295. Likewise, the

Commonwealth of Virginia has not charged the VDGIF with the duty

of defining permissible conduct under Code § 18.2-308.2. The

VDGIF exists to provide public, informational and educational

services related to Title 29.1, which concerns Game, Inland

Fisheries and Boating. See Code § 29.1-109. 11 It is the agency
10
Indeed, we find this to have been precisely the issue upon
which the trial court disposed of the case. The trial judge
found that the officials who advised Miller did not "rise to the
level" of the authorities "upon which he could properly rely."
11
Code § 29.1-109 provides:

A. The Department of Game and Inland
Fisheries shall exist to provide public,
informational and educational services
related to this title, and to serve as the
agency responsible for the administration and
enforcement of all rules and regulations of
the Board, the statutory provisions of this

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responsible for the administration and enforcement of all rules

and regulations of Title 29.1 and related acts, but it is not
(..continued)
title, and related legislative acts.

B. The Board shall appoint a Director to
head the Department and to act as principal
administrative officer. In addition to the
powers designated elsewhere in this title,
the Director shall have the power to:

1. Enforce or cause to be enforced all
laws for the protection, propagation and
preservation of game birds and game animals
of the Commonwealth and all fish in the
inland waters thereof. Inland waters shall
include all waters above tidewater and the
brackish and freshwater streams, creeks,
bays, including Back Bay, inlets, and ponds
in the tidewater counties and cities.
2. Initiate prosecution of all persons
who violate such laws, and seize and
confiscate wild birds, wild animals and fish
that have been illegally killed, caught,
transported or shipped.

3. Employ persons necessary for the
administrative requirements of the Board and
to designate the official position and duties
of each. The salaries of all such employees
shall be as provided in accordance with law.

4. Perform such acts as may be necessary
to the conduct and establishment of
cooperative fish and wildlife projects with
the federal government as prescribed by acts
of Congress and in compliance with rules and
regulations promulgated by the Secretary of
Interior.

5. Make and enter into all contracts and
agreements necessary or incidental to the
performance of his duties and the execution
of his powers, including, but not limited to,
contracts with the United States, other state
agencies and governmental subdivisions of the
Commonwealth.

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charged with defining what conduct Code § 18.2-308.2 proscribes.

Thus, the opinion of VDGIF with respect to the permissibility of

Miller's possessing a muzzle loader does not implicate due

process concerns. Cf. PICCO, 411 U.S. at 674; Cox, 379 U.S. at

568; Raley, 360 U.S. at 439.

By contrast, however, Miller's probation officer was charged

by the Commonwealth with responsibility for defining Miller's

permissible conduct with respect to Code § 18.2-308.2. The

legislature granted the probation officer supervisory

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responsibility for Miller's conduct and treatment during the

course of his probation, see Code § 53.1-145, 12 including the
12
Code § 53.1-145 provides:

In addition to other powers and duties
prescribed by this article, each probation
and parole officer shall:

1. Investigate and report on any case
pending in any court or before any judge in
his jurisdiction referred to him by the court
or judge;

2. Except those persons placed in probation
supervision programs established under
§§ 53.1-181 and 53.1-182.1, supervise and
assist all persons within his territory
placed on probation or post-release
supervision pursuant to § 19.2-295.2, secure,
as appropriate and when available resources
permit, placement of such persons in a
substance abuse treatment program which may
include utilization of acupuncture and other
treatment modalities, and furnish every such
person with a written statement of the
conditions of his probation or post-release
supervision and instruct him therein;
3. Supervise and assist all persons within
his territory released on parole, secure, as
appropriate and when available resources
permit, placement of such persons in a
substance abuse treatment program which may
include utilization of acupuncture and other
treatment modalities, and, in his discretion,
assist any person within his territory who
has completed his parole or has been
mandatorily released from any correctional
facility in the Commonwealth and requests
assistance in finding a place to live,
finding employment, or in otherwise becoming
adjusted to the community;

4. Arrest and recommit to the place of
confinement from which he was released, or in
which he would have been confined but for the
suspension of his sentence or of its
imposition, for violation of the terms of

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responsibility for arresting him for a violation of his

probation. Violation of the law regarding the possession of a

firearm by a convicted felon was surely one. It follows that a

probation officer, statutorily required to supervise, assist, and

provide a probationer with a statement of the conditions of his
(..continued)
probation, post-release supervision pursuant
to § 19.2-295.2 or parole, any probationer,
person subject to post-release supervision or
parolee under his supervision, or as directed
by the Chairman, Board member or the court,
pending a hearing by the Board or the court,
as the case may be;
5. Keep such records, make such reports,
and perform other duties as may be required
of him by the Director or by regulations
prescribed by the Board of Corrections, and
the court or judge by whom he was appointed;

6. Order and conduct, in his discretion,
drug and alcohol screening tests of any
probationer, person subject to post-release
supervision pursuant to § 19.2-295.2 or
parolee under his supervision who the officer
has reason to believe is engaged in the
illegal use of controlled substances or
marijuana or the abuse of alcohol. The cost
of the test may be charged to the person
under supervision. Regulations governing the
officer's exercise of this authority shall be
promulgated by the Board; and

7. Have the power to carry a concealed
weapon in accordance with regulations
promulgated by the Board and upon the
certification of appropriate training and
specific authorization by a judge of the
circuit court to which the officer is
assigned.

Nothing in this article shall require
probation and parole officers to investigate
or supervise cases before juvenile and
domestic relations district courts.

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release from confinement, as well as to arrest a probationer for

a violation of the terms of his release, is, a fortiori, charged

by law with defining a probationer's permissible or impermissible

conduct. The authority to enforce the law and effect an arrest,

of necessity, requires an interpretation of what constitutes

permissible conduct. For these reasons, we hold that the trial

court erroneously concluded that Miller's probation officer was

not a source legally sufficient to invoke the Due Process Clause

as a bar to his prosecution and conviction.
It remains only to be determined whether, based on the

totality of the circumstances, Miller's reliance on the advice of

his probation officer was reasonable and in good faith. Upon

review of the uncontradicted evidence in this case, we find, as a

matter of law, that it was.

Miller's conviction is accordingly reversed, and the case

dismissed.

Reversed and dismissed.

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