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Friday, January 13, 2012

The Second Amendment does not protect a person legally entitled to possess a firearm who lives with a felon from being charged with aiding and abetting under 922(g). And in determining the sufficiency of the charge in defendant’s Rule 12(b)(3)(b) motion to dismiss, the District Court should not ordinarily stray outside the four corners of the Indictment.

In United States v. Huet, No. 10-4729 (3d Cir. Jan 5, 2012), Police executed a valid search warrant of a home shared by Melissa Huet and Marvin Hall — Hall happens to be a convicted felon. In the course of the search, police found a firearm. The Government charged Hall with illegal possession of a firearm under 18 U.S.C. § 922(g), and charged Huet with aiding and abetting his possession, also under § 922(g).

Huet filed a motion under Rule 12 (b)(3)(B) to dismiss the charge on grounds that the Indictment failed to state an offense under § 922(g), and also argued that, as a non-felon legally entitled to possess a firearm, she enjoys protection under the Second Amendment. The District Court agreed, and dismissed the Indictment as to Huet.

In determining the sufficiency of the charge, the District Court took into consideration discovery, the affidavits of probable cause supporting the search warrant, and the prosecutor’s remarks made during Hall’s guilty plea hearing. The District Court concluded that this evidence failed to establish a connection between Huet and Hall’s possession.

The District Court then went to rule that even if the Indictment did properly charge a § 922(g) violation, it violated Huet’s Second Amendment rights because otherwise it would eliminate “the right of a sane, non-felonious citizen to possess a firearm in her home simply because her paramour is a felon.”

The Government appealed, and the Third Circuit reversed and remanded.

First, the Court observed that the Indictment properly charged Huet with aiding and abetting under § 922(g): it alleged that Hall was an illegally possessing felon, and that Huet knew or had reason to know Hall was prohibited from possessing a firearm, and rendered aid or assistance in Hall’s possession. The Court characterized the District Court’s review of facts outside the four corners of the Indictment as a “novel procedure” that “impermissibly expanded the scope of its review at the Rule 12 stage” since in reviewing a Rule 12 motion, the court must accept as true all facts alleged. The Court noted, without deciding, that if there were a stipulated record or if immunity issues were implicated, a Rule 12 dismissal might be justified on sufficiency of evidence grounds — but that’s not this case. Finally, the Court ruled that the District Court erred in faulting the Government for not including in the Indictment specific facts on how Huet aided and abetted. The Court said that the Indictment satisfied Rule 7(c)(1)’s requirement of a “plain, concise, and definite written statement.”

With respect to the Second Amendment argument, the Court pointed to the language in District of Columbia v. Heller, 554 U.S. 570, 626-27 (2008), that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons.” The Court stated that — contrary to the Fifth and Tenth Circuits — it had “explicitly held “in United States v. Barton, 633 F.3d 168, 171, that this language was not dicta, and so bound the court.

As a consequence, the Court held that the Second Amendment does not shield Huet from being charged with aiding and abetting a felon to possess a firearm, reasoning that Huet’s status as a non-felon was irrelevant. Although Huet could legally possess a firearm, she could violate § 922(g), by aiding and abetting a felon: the Second Amendment does not permit Huet to facilitate Hall’s illegal possession.