On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. No. 2-08-cr-00215-002) District Judge: Honorable Arthur J. Schwab
The opinion of the court was delivered by: Fisher, Circuit Judge.
Before: FISHER, VANASKIE and ROTH, Circuit Judges.
The Government appeals from the order of the District Court dismissing the indictment against Melissa Huet ("Huet") with prejudice. Huet was charged with aiding and abetting possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) and § 2. The District Court dismissed the indictment on the basis that: (1) it failed to state an offense for aiding and abetting under § 922(g)(1) and § 2; and (2) even if it did state an offense, the charge violated Huet‟s rights under the Second Amendment of the U.S. Constitution. For the reasons set forth below, we will reverse and remand.
On June 5, 2008, a federal grand jury sitting in the Western District
of Pennsylvania returned a three-count indictment against Huet and her
paramour, Marvin Hall ("Hall"). Counts One and Two, respectively,
charged Hall with possession of a firearm by a convicted felon, in
violation of 18 U.S.C. § 922(g)(1), and transfer of unregistered
firearms, in violation of 26 U.S.C. § 5861(e). Count Three ("Count
Three" or "the Indictment") charged Huet with
knowingly aiding and abetting the possession of a firearm by a
convicted felon, in violation of 18 U.S.C. § 922(g)(1)*fn1
and § 2(a)*fn2 . On January 29, 2010, Hall
pled guilty to Count One, and was sentenced to time served. On
November 22, 2010, the District Court issued an order dismissing Count
Three with prejudice. The Government filed a timely notice of appeal.
The allegations in the Indictment stem from an undercover FBI investigation into the activities of Morgan Jones ("Jones") in Clarion County, Pennsylvania. The investigation focused on attempts to purchase illegal firearms and explosive devices for criminal activities, as well as the potential manufacturing and detonation of explosive devices. During their probe, FBI agents met Hall and Huet, who lived together. Over the next nine months, agents gathered evidence allegedly connecting Hall and Huet to various criminal activities, and on June 6, 2008, a valid search warrant (the "search warrant") was executed on the couple‟s Clarion County home. Agents seized an SKS, Interordnance M59/66 rifle ("SKS rifle") from an upstairs bedroom.
Although Huet is legally permitted to possess a firearm, Hall was convicted in 1999 of possessing an unregistered firearm, in violation of 26 U.S.C. § 5861(d), and is therefore prohibited from owning or possessing a firearm. After being informed of the raid, Huet allegedly told investigators that the guns in the house belonged to her and that it was not illegal for her to purchase weapons. Despite Huet‟s assertions that she alone possessed the SKS rifle, the Government sought and obtained an indictment charging Hall with illegal possession of the weapon, and Huet with aiding and abetting Hall‟s possession.
Huet moved to dismiss Count Three pursuant to Rule 12(b)(3)(B) of the Federal Rules of Criminal Procedure*fn3 on the basis that the Indictment failed to state an offense under § 922(g)(1) and § 2. Count Three states:
From on or about August 10, 2007, to on or about January 11, 2008, in the Western District of Pennsylvania, the defendant, Melissa A. Huet, knowingly and unlawfully aided and abetted the possession of a firearm, that is an SKS assault rifle, in and affecting interstate commerce, by Marvin E. Hall, who had previously been convicted on or about March 12, 1999, in the United States District Court for the Western District of Pennsylvania . . . of the crime of Possession of Unregistered Firearms, an offense which is punishable by a term of imprisonment in excess of one year. In violation of Title 18, United States Code, Sections 922(g)(1) and 2.
In granting Huet‟s Rule 12 motion, the District Court stated that
"notably absent from the Indictment . . . [were] any facts setting
forth how defendant Huet aided and abetted defendant Hall in his
unlawful possession of the SKS rifle." United States v. Huet, No.
08-0215, 2010 WL 4853847, at *5 (W.D. Pa. Nov. 22, 2010). The District
Court did not limit its inquiry to the four corners of the Indictment,
however, and examined additional information to discern the
Government‟s theory of the case. The District Court looked to
materials produced pursuant to Rule 16 of the Federal Rules of
Criminal Procedure, as well as record evidence from Hall‟s case.
Specifically, the Court relied upon statements set forth in the
affidavit of probable cause supporting the search warrant,*fn4
and remarks made by the prosecutor during Hall‟s
guilty plea hearing.*fn5 Concluding that this evidence
failed to establish any connection between Huet‟s actions and Hall‟s
possession, the District Court granted Huet‟s Rule 12 motion to
dismiss for failure to state an offense under 18 U.S.C. § 922(g)(1)
and § 2. Huet, 2010 WL 4853847, at *7.
The District Court‟s view of the Government‟s theory of the case similarly guided its approach to Huet‟s Second Amendment challenge. Huet argued that even if Count Three did state an offense for aiding and abetting a felon in possession, under the factual scenario presented in this case, the charge violated her rights under the Second Amendment. The District Court agreed, finding that "to permit [the] Indictment to go forward . . . would be [to] countenanc[e] the total elimination of the right of a sane, non-felonious citizen to possess a firearm, in her home, simply because her paramour is a felon." Id. at *11. "[T]o punish Huet, who has not been convicted of a felony . . . as a principal, violates the core of the Second Amendment right to keep arms," the Court opined, because the conduct alleged to have aided and abetted was "purely possessory." Id. at *7; see id. at *11 (characterizing Government‟s case as an attempt to "compound an inchoate offense upon another inchoate offense"). ...