United States v. Huet

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______

No. 10-4729

______

UNITED STATES OF AMERICA,

Appellant

v.

MELISSA A. HUET

______

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

______

Argued October 26, 2011

Before: FISHER, VANASKIE and ROTH, Circuit Judges.

(Filed: January 5, 2012)

Laura S. Irwin (Argued)

Office of the United States Attorney

700 Grant Street, Suite 4000

Pittsburgh, PA 15219

Counsel for Appellant

Patrick M. Livingston (Argued)

310 Grant Street, Suite 1430

Pittsburgh, PA 15219

Counsel for Appellee

______

OPINION OF THE COURT

______

FISHER, Circuit Judge.

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.

I.

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

2

knowingly aiding and abetting the possession of a firearm by

a convicted felon, in violation of 18 U.S.C. § 922(g)(1)1 and

§ 2(a)2. 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

1

Section 922(g)(1) states:

It 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 ship or transport in

interstate or foreign commerce, or possess in or

affecting commerce, any firearm or

ammunition; or to receive any firearm or

ammunition which has been shipped or

transported in interstate or foreign commerce.

2

Section 2(a) states: “Whoever commits an offense

against the United States or aids, abets, counsels, commands,

induces or procures its commission, is punishable as a

principal.”

3

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 Procedure3 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

3

Rule 12(b)(3)(B) provides: “[A]t any time while the

case is pending, the court may hear a claim that the

indictment . . . fails to . . . state an offense.”

4

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,4 and remarks made by the prosecutor during Hall‟s

4

The affidavit provides, in pertinent part:

Huet indicated that she was angry that

Hall had been showing off an SKS assault rifle.

Huet said that if it happened again, she would

take it “back” to Morgan. Huet further

elaborated that she was worried that if Hall “gets

in trouble with that, I get in trouble too. Cause

it‟s in my name, and he‟s got it.”

5

guilty plea hearing.5 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

5

At Hall‟s guilty plea hearing, the Assistant U.S.

Attorney stated:

Mr. Hall lived with . . . Melissa Huet, . . . [who]

had no prior record of which we are aware, but .

. . bought firearms in her name for Morgan

Jones, who on the side sold firearms. . . . Miss

Huet would allow Mr. Hall to have access to

those firearms. In essence, that‟s the very basis

of the charge against Mr. Hall.

6

“compound[] an inchoate offense upon another inchoate

offense”). Although the District Court did not explicitly

designate the Second Amendment violation as an alternative

basis for dismissal, it clearly viewed it as such. Accordingly,

we must address both the sufficiency of the Indictment and

the Second Amendment challenge.

II.

The District Court had jurisdiction pursuant to 18

U.S.C. § 3231. We have jurisdiction over the District Court‟s

order dismissing the Indictment under 18 U.S.C. § 3731.

“[W]hen reviewing a motion to dismiss an indictment, our

standard of review is mixed.” United States v. Shenandoah,

595 F.3d 151, 156 (3d Cir. 2010) (citations omitted). We

exercise plenary review over the District Court‟s legal

conclusions and review any challenges to its factual findings

for clear error. Id. Here, the primary question is not whether

the District Court‟s findings of fact were erroneous, but

whether the District Court was entitled to find and weigh

facts at all. This is a legal question, over which we exercise

plenary review. Id. We also exercise plenary review over a

constitutional challenge to the application of a statute. United

States v. Marzzarella, 614 F.3d 85, 88 n.2 (3d Cir. 2010)

(citing United States v. Fullmer, 584 F.3d 132, 151 (3d Cir.

2009)).

III.

A.

We first address the Government‟s contention that the

District Court erred in concluding that, under Federal Rule of

Criminal Procedure 12(b)(3)(B), Count Three failed to state

7

an offense for aiding and abetting a felon in possession of a

firearm under 18 U.S.C. § 922(g)(1) and § 2.

1.

Federal Rule of Criminal Procedure 7(c)(1) requires

only that an indictment “be a plain, concise, and definite

written statement of the essential facts constituting the

offense charged.” “[T]he Federal Rules „were designed to

eliminate technicalities in criminal pleadings and are to be

construed to secure simplicity in procedure.‟” United States

v. Resendiz-Ponce, 549 U.S. 102, 110 (2007) (quoting United

States v. Debrow, 346 U.S. 374, 376 (1953)). Although

detailed allegations may have been required under a common

law pleading regime, they “surely are not contemplated by

[the Federal Rules].” Id.

“It is well-established that „[a]n indictment returned by

a legally constituted and unbiased grand jury, . . . if valid on

its face, is enough to call for trial of the charge on the

merits.‟” United States v. Vitillo, 490 F.3d 314, 320 (3d Cir.

2007) (quoting Costello v. United States, 350 U.S. 359, 363

(1956)). We have held that an indictment is facially sufficient

if it “(1) contains the elements of the offense intended to be

charged, (2) sufficiently apprises the defendant of what he

must be prepared to meet, and (3) allows the defendant to

show with accuracy to what extent he may plead a former

acquittal or conviction in the event of a subsequent

prosecution.” Id. at 321 (citation omitted). “[N]o greater

specificity than the statutory language is required so long as

there is sufficient factual orientation” to permit a defendant to

prepare his defense and invoke double jeopardy. United

States v. Kemp, 500 F.3d 257, 280 (3d Cir. 2007) (quoting

United States v. Rankin, 870 F.2d 109, 112 (3d. Cir. 1989)).

8

Generally, an indictment will satisfy these requirements

where it informs the defendant of the statute he is charged

with violating, lists the elements of a violation under the

statute, and specifies the time period during which the

violations occurred. United States v. Urban, 404 F.3d 754,

771 (3d Cir. 2005); see also United States v. McCarty, 862

F.2d 143, 144, 148 (7th Cir. 1988) (finding indictment under

18 U.S.C. § 922(g) sufficient where it tracked the statutory

language, stated the date and place of the alleged possession,

and specifically identified the type of firearm involved). In

contrast, if an indictment fails to charge an essential element

of the crime, it fails to state an offense. United States v.

Wander, 601 F.2d 1251, 1259 (3d Cir. 1979).

In determining whether an indictment validly states the

elements of the offense, we need not blindly accept a

recitation in general terms of the elements of the offense.

United States v. Panarella, 277 F.3d 678, 685 (3d Cir. 2002).

“Federal Rule of Criminal Procedure 12(b)(3)(B) allows a

district court to review the sufficiency of the government‟s

pleadings to . . . ensur[e] that legally deficient charges do not

go to a jury.” United States v. Bergrin, 650 F.3d 257, 268 (3d

Cir. 2011). Although the Government is not required to set

forth its entire case in the indictment, “if the specific facts”

that are alleged “fall beyond the scope of the relevant

criminal statute, as a matter of statutory interpretation,” the

indictment fails to state an offense. Panarella, 277 F.3d at

685; see United States v. Schiff, 602 F.3d 152, 162-66 (3d Cir.

2010) (finding that indictment alleging “failure to rectify

misstatements of others” did not, as a matter of statutory

interpretation, state an offense under 18 U.S.C. § 78j(b) and

SEC Rule 10b-5). However, the scope of a district court‟s

review at the Rule 12 stage is limited. “[A] pretrial motion to

9

dismiss an indictment is not a permissible vehicle for

addressing the sufficiency of the government‟s evidence.”

United States v. DeLaurentis, 230 F.3d 659, 660 (3d Cir.

2000) (citations omitted). “The government is entitled to

marshal and present its evidence at trial, and have its

sufficiency tested by a motion for acquittal pursuant to

Federal Rule of Criminal Procedure 29.” Id. at 661. There is

no criminal corollary to the civil summary judgment

mechanism. Id. In evaluating a Rule 12 motion to dismiss, a

district court must accept as true the factual allegations set

forth in the indictment. United States v. Sampson, 371 U.S.

75, 78-79 (1962); United States v. Besmajian, 910 F.2d 1153,

1154 (3d Cir. 1990). “Evidentiary questions – such as

credibility determinations and the weighing of proof – should

not be determined at this stage.” Bergrin, 650 F.3d at 265

(internal marks and citation omitted). Thus, a district court‟s

review of the facts set forth in the indictment is limited to

determining whether, assuming all of those facts as true, a

jury could find that the defendant committed the offense for

which he was charged. Panarella, 277 F.3d at 685;

DeLaurentis, 230 F.3d at 660.

2.

To survive Huet‟s motion to dismiss, the Government

was required to adequately set forth the elements of aiding

and abetting a felon in possession under 18 U.S.C.

§ 922(g)(1) and § 2. To establish a violation of 18 U.S.C. § 2,

the government must prove: “(1) that the substantive crime

has been committed; and (2) that the defendant charged with

aiding and abetting knew of the commission of the

substantive offense and acted with intent to facilitate it.”

United States v. Petersen, 622 F.3d 196, 208 (3d Cir. 2010)

(citation omitted). Section 922(g)(1), the statute setting forth

10

the substantive offense, requires proof that: (1) the defendant

has been convicted of a crime of imprisonment for a term in

excess of one year; (2) the defendant knowingly possessed the

firearm; and (3) the firearm traveled in interstate commerce.

United States v. Higdon, 638 F.3d 233, 239-40 (3d Cir. 2011).

Because § 922(g)(1) is not a specific intent statute, an

individual can be convicted as an aider and abettor under

§ 922(g)(1) and § 2 if she knew or had reason to know that

she was aiding and abetting possession of a firearm by a

convicted felon. See United States v. Xavier, 2 F.3d 1281,

1286-87 (3d Cir. 1993). Thus, a valid indictment under

§ 922(g)(1) based on an aiding and abetting theory must

allege that: (1) the principal, who had been convicted of a

crime carrying a term of imprisonment in excess of one year,

knowingly possessed a firearm that had traveled in interstate

commerce, Higdon, 638 F.3d at 239-40, and (2) the defendant

knew or had reason to know that the principal was prohibited

from possessing a firearm, Xavier, 2 F.3d at 1286-87, and

rendered actual aid or assistance to the principal in possessing

the firearm, United States v. Nolan, 718 F.2d 589, 592 (3d

Cir. 1983).

In this case, we conclude that the Indictment

adequately set forth the required elements under § 922(g)(1)

and § 2, with “sufficient factual orientation” to allow Huet to

prepare her defense and invoke double jeopardy. See Kemp,

500 F.3d at 280. Count Three lists all required elements of

the offense. It alleges that: (1) Hall, the principal, had

previously been convicted for Possession of Unregistered

Firearms, an offense punishable by a term of imprisonment in

excess of one year, and that he knowingly possessed a firearm

(the SKS rifle) which had traveled in interstate commerce, see

Higdon, 638 F.3d at 239-40; and (2) Huet knowingly aided

11

and abetted Hall‟s possession of that firearm, see Petersen,

622 F.3d at 208; Xavier, 2 F.3d at 1286-87. Count Three also

includes the required “factual orientation”: it specifies the

time period during which the violation occurred (“on or about

August 10, 2007, to on or about January 11, 2008”), see

Urban, 404 F.3d at 771, and identifies the specific weapon

involved, see McCarty, 862 F.2d at 144. No more was

required to allow Huet to prepare her defense and invoke

double jeopardy. See Kemp, 500 F.3d at 280. Accordingly,

we will reverse the order of the District Court granting Huet‟s

Rule 12(b)(3)(B) motion to dismiss for failure to state an

offense.6

We recognize that the District Court may have adopted

the novel procedure followed here to truncate what it

perceived as an incurably weak Government case. However,

in doing so, the District Court committed two errors: (1) it

impermissibly expanded the scope of its review at the Rule 12

stage and evaluated the sufficiency of the evidence; and (2) it

required the Government to meet a heightened pleading

standard. We will discuss each of these issues in turn.

First, although the District Court purported to make a

purely “legal” determination based on “undisputed” facts,

Huet, 2010 WL 4853847, at *2, the language of its

memorandum opinion makes clear that it engaged in fact-

finding and determined that, based on those facts, the

Government would not be able to prove its case. The District

6

Because we conclude that the Indictment should not

have been dismissed, we do not address whether the District

Court abused its discretion by dismissing the Indictment with

prejudice.

12

Court speculated as to the evidence the Government would

introduce at trial, and concluded that such evidence “[did]

nothing to advance the cause that defendant Huet knew, or

had reason to know that defendant Hall was a felon in

possession and that her owning a weapon somehow aided or

abetted him in his unlawful possession of the SKS rifle.” Id.

at *7. By doing this, the District Court failed to adhere to the

fundamental principle that in reviewing the sufficiency of an

indictment, a court must accept as true all of the facts alleged.

Panarella, 277 F.3d at 681; see United States v. Gallagher,

602 F.2d 1139, 1142-43 (3d Cir. 1979). “Evidentiary

questions – such as . . . the weighing of proof – should not be

determined at [the motion to dismiss] stage.” Bergrin, 650

F.3d at 265 (citation omitted).

Unlike other cases in which we have affirmed a district

court‟s dismissal of an indictment as insufficient, Huet‟s case

does not involve a question of whether the facts alleged in the

indictment fall beyond the scope of the relevant criminal

statute as a matter of statutory interpretation. See Panarella,

277 F.3d at 685; see also Schiff, 602 F.3d at 161, 167

(holding that failure to rectify the misstatements of others

does not state an offense under federal securities laws and

thus the government could not proceed on such a theory);

Gov’t of the Virgin Islands v. Greenidge, 600 F.2d 437, 438

(3d Cir. 1979) (finding indictment for assault with intent to

commit rape under 14 V.I.C. § 295(3) insufficient where the

facts alleged showed that the person the defendant assaulted

13

was not the same person he attempted to rape).7 Rather, the

District Court‟s determination that the Indictment failed to

state an offense was based solely on its assessment of the

strength of the Government‟s case.

Moreover, although we have left open the possibility

that, in limited circumstances, a district court may be able to

address the sufficiency of the government‟s evidence in a

pretrial motion to dismiss, this case does not present such a

scenario. See DeLaurentis, 230 F.3d at 660 (acknowledging

that district courts may be able to address sufficiency of the

evidence if there is a stipulated record or if immunity issues

are implicated).8 The District Court erred in concluding that

7

The only potential question of statutory interpretation

– whether the SKS rifle was a “dangerous” or “unusual”

firearm – was determined by the District Court when it took

judicial notice of the fact that the SKS rifle was not an

“assault weapon,” but instead had been designated as a

“curio” by the Bureau of Alcohol, Tobacco, and Firearms,

and was used primarily by hunters and collectors. See United

States v. Huet, No. 08-0215, 2010 WL 4853847, at *4-5

(W.D. Pa. Nov. 22, 2010). That finding is not at issue on

appeal.

8

Although DeLaurentis indicated that there is an

exception to the general rule barring district courts from

considering the sufficiency of the evidence at the Rule 12

stage, we have never explicitly held that such an exception

exists, much less defined its contours. We decline to do so

now. We simply hold that, assuming an exception exists for

cases involving a stipulated record or immunity issues, the

circumstances of this case do not trigger it.

14

the facts here are undisputed. The Government maintains that

it will introduce testimony to prove the elements of aiding

and abetting. At no point during the proceedings before the

District Court did the Government concede that the facts were

undisputed or were complete. In its reply to Huet‟s motion to

dismiss, the Government explicitly stated that it was

“prepared to present testimony” at trial that would establish

that Huet aided and abetted Hall‟s possession. The

Government maintains this position on appeal. Thus, the

District Court‟s finding that the Government lacked evidence

beyond mere possession was premature.9

9

We note that there is a split among our sister circuits

as to whether a district court is ever permitted to rule on a

motion to dismiss based on the sufficiency of the evidence.

Some courts have indicated that in “rare” and “unusual”

cases, it may be appropriate for a court to look to the

sufficiency of the evidence. See, e.g., United States v. Levin,

973 F.2d 463, 466-67 (6th Cir. 1992) (affirming district

court‟s dismissal of an indictment under Rule 12 where the

prosecutor conceded that the facts were undisputed, and based

on the undisputed facts, the defendant could not have formed

the requisite intent to commit the crime). Other circuits have

rejected this approach. See, e.g., United States v. Salman, 378

F.3d 1266, 1268 (11th Cir. 2004) (holding that “there is no

explicit authority to grant a pre-trial judgment as a matter of

law on the merits under the Federal Rules of Criminal

Procedure” and thus, the government should be allowed to

present its evidence at trial, subject to the defendant‟s moving

for a judgment of acquittal under Federal Rule of Criminal

Procedure 29).

15

Second, the District Court erred to the extent that it

imposed a heightened pleading standard for offenses under 18

U.S.C. § 922(g)(1) and § 2. The District Court dismissed

Count Three based on its determination that “[t]he facts in the

Indictment fail[ed] to set forth any allegations to support the

conclusion that . . . Huet aided and abetted . . . Hall in his

unlawful possession of the SKS rifle.” Huet, 2010 WL

4853847, at *7. The District Court faulted the Government

for failing to include “any specifics” as to how Huet aided

Hall, and determined that the Government simply “charge[d]

its conclusion.” Id. at *4. Although some offenses must be

pled with greater specificity than the “plain, concise, and

definite written statement” contemplated by Rule 7(c)(1), we

have never held aiding and abetting a felon in possession

under 18 U.S.C. § 922(g)(1) and § 2 to be such an offense,

and we decline to do so now.

In arguing for a heightened pleading standard, Huet

attempts to distinguish the Supreme Court‟s decision in

United States v. Resendiz-Ponce, 549 U.S. 102 (2007). In

that case, the issue was whether an indictment alleging

attempted illegal reentry into the United States under 8 U.S.C.

§ 1326(a) had to allege a specific overt act. Id. at 103-04.

The Court held that the government did not have to include

such an allegation because the use of the word “attempt,”

coupled with the specification of the time and place of the

defendant‟s attempted reentry, was sufficient to put the

defendant on notice of the charges against him. Id. at 108.

The Court distinguished the heightened pleading

requirements under 2 U.S.C. § 192, which makes it illegal for

a witness summoned before a congressional committee to

refuse to answer any question “pertinent to the question under

inquiry.” Id. at 109. Because the “relevant hearing‟s subject

16

[is] frequently uncertain but invariably „central to every

prosecution under the statute,‟” the Court explained that an

indictment under § 192 must go beyond the language of the

statute and “allege the subject of the congressional hearing in

order to determine whether the defendant‟s refusal was

„pertinent.‟” Id. (citing Russell v. United States, 369 U.S.

749, 764 (1962)). In contrast, because the term “attempt,” as

used in “common parlance,” connotes action and intent, it

was deemed unnecessary to specify an overt act in an

indictment under 8 U.S.C. § 1326(a). Id. at 107. Huet argues

that because “a single affirmative act” may establish an aider

and abettor‟s culpability, a “concise statement as to [the]

means and/or manner the aider/abetter (sic) used to facilitate

the offense is required.” We find Huet‟s attempt to

distinguish “aid and abet” from “attempt” unpersuasive. Like

the term “attempt,” the terms “aid” and “abet,” as used in

common parlance, sufficiently connote action and intent. See

Resendiz-Ponce, 549 U.S. at 107. Thus, unlike 2 U.S.C.

§ 192, no more than the elements of the statute and the time

and place of the alleged violation are required to inform the

defendant of the charge against which she must defend and

enable her to invoke double jeopardy. See Kemp, 500 F.3d at

280.

Moreover, the District Court‟s suggestion that

Abuelhawa v. United States, 129 S. Ct. 2102 (2009), altered

the pleading requirements for offenses involving accomplice

liability is a mischaracterization of the Supreme Court‟s

holding in that case. In Abuelhawa, the Court held that

making a misdemeanor drug purchase over the telephone

does not constitute “facilitation” of drug distribution under 21

U.S.C. § 843(b). Id. at 2104. Nowhere in the Abuelhawa

opinion did the Court address the pleading requirements

17

under Federal Rule of Criminal Procedure 7. Nor did the

decision modify the law of accomplice liability under 18

U.S.C. § 2. The elements of aiding and abetting under § 2

remain the same. The Abuelhawa Court simply addressed a

narrow question regarding the scope of the term “facilitate”

under § 843(b). 129 S. Ct. at 2104. We decline to extend its

holding any further.

18

B.

1.

We turn now to Huet‟s Second Amendment challenge.

The Second Amendment provides: “A well regulated Militia,

being necessary to the security of a free State, the right of the

people to keep and bear Arms, shall not be infringed.” U.S.

CONST. amend. II. In District of Columbia v. Heller, 554

U.S. 570, 595 (2008), the Supreme Court held for the first

time that the Second Amendment confers an individual right

to keep and bear arms.10 The right, however, is not unlimited.

Id. The Second Amendment does not guarantee a “right to

keep and carry any weapon whatsoever in any manner

whatsoever and for whatever purpose.” Id. at 626. The Court

cautioned that, “nothing in our opinion should be taken to cast

doubt on longstanding prohibitions on the possession of

firearms by felons and the mentally ill, or laws forbidding the

carrying of firearms in sensitive places such as schools and

government buildings, or laws imposing conditions and

qualifications on the commercial sale of arms.” Id. at 626-27.

Laws prohibiting the possession of “dangerous and unusual

weapons” were left similarly intact. Id. at 627. The Court

made clear that it was “identify[ing] these presumptively

10

In McDonald v. City of Chi., 130 S. Ct. 3020, 3050

(2010), a splintered plurality of the Supreme Court held that

the Second Amendment is applicable to the states, through

the Fourteenth Amendment.

19

lawful regulatory measures only as examples”; the list was

not intended to be exhaustive.11 Id. at 627 n.26.

Applying these principles, the Court invalidated a

District of Columbia law that completely banned handgun

possession in the home and required any lawful firearm to be

kept disassembled and bound by a trigger lock at all times,

rendering it inoperable. Id. at 628-35. The Court explained

that “the inherent right of self-defense [is] central to the

Second Amendment[,]” and the challenged law impermissibly

extended to the home, “where the need for defense of self,

family, and property is most acute.” Id. at 628. Although the

Court did not decide on a level of scrutiny to be applied in

cases involving Second Amendment challenges, it rejected

rational basis review. Id. at 628 n.27. The Court explained

that the Second Amendment “elevates above all other

interests the right of law-abiding, responsible citizens to use

arms in defense of hearth and home.” Id. at 635.

11

Although some of our sister circuits have classified

the “presumptively lawful” language in Heller as dicta, see

United States v. Scroggins, 599 F.3d 433, 451 (5th Cir. 2010);

United States v. McCane, 573 F.3d 1037, 1047 (10th Cir.

2009) (Tymkovich, J., concurring), we disagree. In United

States v. Barton, 633 F.3d 168, 171 (3d Cir. 2011), we

explicitly held that Heller‟s list of “presumptively lawful”

regulations was not dicta, and thus we are bound by it. See

also United States v. Rozier, 598 F.3d 768, 771 n.6 (11th Cir.

2010); United States v. Vongxay, 594 F.3d 1111, 1115 (9th

Cir. 2010) (explaining that Heller Court‟s “presumptively

lawful” list was a limitation on the scope of its holding).

20

In United States v. Marzzarella, we articulated a two-

step analysis for Second Amendment claims under Heller:

First, we ask whether the challenged law

imposes a burden on conduct falling within the

scope of the Second Amendment‟s guarantee.

. . . If it does not, our inquiry is complete. If it

does, we evaluate the law under some form of

means-end scrutiny. If the law passes muster

under that standard, it is constitutional. If it

fails, it is invalid.

614 F.3d 85, 89 (3d Cir. 2010) (internal citations

omitted).

Under the Marzzarella framework, the “presumptively

lawful” regulatory measures identified by the Supreme Court

in Heller carry the presumption of validity because they

regulate conduct “falling outside the scope of the Second

Amendment‟s guarantee.” United States v. Barton, 633 F.3d

168, 172 (3d Cir. 2011) (citing Marzzarella, 614 F.3d at 91)

(explaining that this is a better reading of Heller than one that

would require “presumptively lawful” regulations to satisfy

every level of constitutional scrutiny). In other words, the

longstanding limitations mentioned by the Court in Heller are

exceptions to the right to bear arms. Marzzarella, 614 F.3d at

91.

2.

The constitutional question here is presented in an

unusual way due to the procedural posture of the case. The

District Court‟s characterization of Huet‟s challenge as an as-

applied attack is somewhat misleading. In contrast to a facial

21

attack, an as-applied challenge “does not contend that a law is

unconstitutional as written but that its application to a

particular person under particular circumstances deprived that

person of a constitutional right.” United States v. Marcavage,

609 F.3d 264, 273 (3d Cir. 2010) (citation omitted).

However, because we do not have the benefit of a fully

developed evidentiary record, the “particular circumstances”

of this case remain unclear. As in its analysis regarding the

sufficiency of the Indictment, the District Court‟s error on the

constitutional issue stems from its failure to accept as true the

allegations in the Indictment. Because, as we explained

above, the charges against Huet were properly brought under

Federal Rules of Criminal Procedure 7 and 12, in assessing

Huet‟s constitutional challenge on appeal, we are limited to

determining whether, based on the allegations in the

Indictment – and only the allegations in the Indictment – her

Second Amendment rights have been violated. For the

reasons set forth below, we conclude that a charge properly

brought under § 922(g)(1) and § 2 does not violate the Second

Amendment.

Huet argues that based on the circumstances of her

case, she cannot constitutionally be charged with aiding and

abetting a felon to possess a firearm. Specifically, she

contends that the Government‟s only evidence is that she

possessed the SKS rifle in her home while living with a

convicted felon. The District Court agreed, finding that “to

permit [the] Indictment to go forward” would be to

“countenance[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.” Huet, 2010 WL

4853847, at *11.

22

We disagree. We cannot say that an indictment which

properly alleges aiding and abetting a felon in possession

under 18 U.S.C. § 922(g)(1) and § 2 violates the Second

Amendment under Heller. Applying Marzzarella, a properly-

brought aiding and abetting charge does not burden conduct

protected by the Second Amendment. See 614 F.3d at 89.

The District Court‟s characterization of the Indictment as

seeking to criminalize the otherwise legal possession of a

firearm by a non-felon simply because she lives with a felon

is misleading. The Indictment does not allege that Huet‟s

possession of the SKS rifle violated the law; rather, it alleges

that Huet aided and abetted Hall to possess the firearm. We

are mindful of the risk that felon dispossession statutes, when

combined with laws regarding accomplice liability, may be

misused to subject law-abiding cohabitants to liability simply

for possessing a weapon in the home. However, in this case,

the District Court‟s determination that the Government

overreached was premature. Huet‟s arguments regarding the

circumstances of her possession must await further

development of the evidentiary record.

Huet‟s argument that her status as a non-felon brings

her case within the scope of Second Amendment protection is

unavailing. Relying on our decision in United States v.

Barton, 633 F.3d 168 (3d Cir. 2011), Huet argues that, as a

person legally entitled to own a firearm, she is categorically

different than a felon, and thus cannot be charged under

§ 922(g)(1) for possessing a firearm. This argument is

flawed. Huet‟s status in relation to prohibited persons is

irrelevant. She is correct that her circumstances distinguish

her from “persons historically barred from Second

Amendment protections”; she is not barred from Second

Amendment protection at all. The Government readily

23

concedes that Huet would not violate § 922(g)(1) simply by

possessing a firearm. She would, however, violate

§ 922(g)(1) and § 2 by aiding and abetting a felon to possess

a firearm. Count Three charges her with the latter. Thus, the

fact that she is not within the class of persons prohibited from

possessing a firearm is irrelevant; her right to possess a

firearm is not implicated by the charges against her.

Moreover, even if part of the conduct that allegedly aided and

abetted Hall‟s possession involved possession of the firearm

by Huet, the Second Amendment does not afford citizens a

right to carry arms for “any purpose.” Heller, 554 U.S. at

595. Huet‟s right to keep the SKS rifle in her home did not

give her the right to facilitate Hall‟s possession of the

weapon. Otherwise illegal conduct does not somehow

become immunized because possession of a firearm is

involved in the offense. See, e.g., United States v. Potter, 630

F.3d 1260, 1261 (9th Cir. 2011) (per curiam) (rejecting a

defendant‟s challenge to his conviction for possession of a

firearm in furtherance of drug trafficking and concluding that

“[e]ven if [the defendant] kept the firearm also to protect

himself and his home,” it could not “seriously be contended

that the Second Amendment guarantees a right to use a

firearm in furtherance of drug trafficking”).

Because the conduct alleged in Count Three is beyond

the scope of Second Amendment protection, our inquiry

under Marzzarella is complete. See 614 F.3d at 89. We need

not conduct a means-end inquiry. See id. However, in

Marzzarella, we cautioned that because Second Amendment

jurisprudence is “in its nascency,” we must tread carefully

when deciding whether to find conduct not explicitly

identified by the Heller Court as subject to “presumptively

lawful” restrictions as unprotected by the Second

24

Amendment. Id. at 101. In other words, prong one of

Marzzarella (whether conduct is protected by the Second

Amendment) should be applied with caution. Because we

could not be certain that the provision at issue in Marzzarella,

18 U.S.C. § 922(k), which prohibits possession of a firearm

with an obliterated serial number, regulated conduct not

protected by the Second Amendment, we declined to decide

the case on prong one. Id. at 94-95. However, because it is

clear to us that the allegations in Count Three fall outside the

scope of Second Amendment protection, we do not hesitate to

base our decision on prong one of Marzzarella in this case.

Our primary concern in Marzzarella was one of line-

drawing, specifically, whether a firearm with an obliterated

serial number was a “dangerous and unusual weapon.” 614

F.3d at 87, 94-95. Although the Court in Heller stated that

possession of “dangerous” firearms is not protected, it did not

define what constitutes a “dangerous” firearm. See 554 U.S.

at 627. In Marzzarella, we noted the difficulty in determining

whether a gun with an obliterated serial number was

“dangerous” or “unusual.” 614 F.3d at 101. On the one

hand, because an unmarked firearm is equally effective as a

marked firearm, thus giving law-abiding citizens no reason to

prefer the former over the latter, unmarked firearms “have

value primarily for persons seeking to use them for illicit

purposes.” Id. at 95 (citations omitted). On the other hand,

the absence of a serial number seems categorically different

than other “dangerous” characteristics, such as a sawed-off

barrel on a shotgun. Id. Although a sawed-off shotgun “is

dangerous and unusual in that its concealability fosters its use

in illicit activity, it is also dangerous and unusual because of

its heightened capability to cause damage.” Id. (citing United

25

States v. Amos, 501 F.3d 524, 532 (6th Cir. 2007)

(McKeague, J., dissenting)).

Huet‟s case presents no line-drawing problem.

Because § 922(g)(1) and § 2 do not restrict the right of

possession of the aider and abettor, Count Three simply does

not implicate Huet‟s rights under the Second Amendment.

Thus, unlike the restriction at issue in Marzzarella, we do not

have to broaden any of Heller‟s presumptively valid

categories to find that the conduct alleged in Count Three is

outside the scope of Second Amendment protection. See

Marzzarella, 614 F.3d at 101.

IV.

For the foregoing reasons, we will reverse the order of

the District Court granting Huet‟s motion to dismiss and

remand for further proceedings. We hold that: (1) Count

Three was sufficient to state an offense for aiding and

abetting a felon in possession under 18 U.S.C. § 922(g)(1)

and § 2; and (2) Count Three does not violate the Second

Amendment.

26