A shot at mens rea in aiding and abetting illegal firearms possession under 18 U.S.C. [section] 922(g).

• Author: Klein, Stephen R.

INTRODUCTION

Whether the term used is "sensible" gun laws, "reasonable" gun laws, or "common-sense gun laws," the message is always the same: No one in his right mind could possibly oppose such laws; law-abiding gun owners have nothing to fear from them; they will not infringe on anyone's legitimate gun rights ....

... [But] do they, in fact, represent a real and present danger to the gun rights of Americans? (1)

--Richard Poe

In the Southwest, a neighbor of twenty years asks a fellow homemaker if she may borrow a firearm for protection. Unbeknownst to the homemaker, who loans the gun, the neighbor is an illegal alien. In the Midwest, as hunting season opens, a sportsman wants to try his friend's new rifle. The friend does not know that this hunter, whom he has known for many years, was once convicted of misdemeanor domestic violence, and lets him take the rifle hunting. In an inner city on the East Coast, a man gives a gun to his accomplice before they proceed to hold up a service station, knowing she is a convicted felon.

While the frequency of these occurrences is difficult to measure, guns are frequently borrowed and loaned in the United States. (2) Many would be surprised to learn that all three borrowers in the above situations committed a federal felony the moment they took possession of the gun. (3) But even more surprising is that all three lenders could be convicted of the same felony as the borrowers because of a disparity in the current federal gun laws and the convoluted application of the federal aiding and abetting statute.

Title 18, [section] 922(g) of the U.S. Code restricts persons in any one of nine categories--including convicted felons, illegal aliens, and drug addicts--from knowingly possessing firearms or ammunition. (4) Title 18, [section] 922(d), restricts the sale or disposal of firearms or ammunition to an individual that one knows or has reason to know is in one of the nine restricted categories. (5) However, if one is charged with aiding and abetting illegal firearm possession--that is, charged under [section] 922(g) via the federal aiding and abetting statute (6)--innocent people could be held strictly liable because of two distinct flaws.

The first flaw is in the construction of [section] 922(g). The mens rea requirement in the statute is that the principal--the one actually possessing the gun--knowingly possess a firearm. All other elements involve strict liability, meaning that the prosecution need prove only that the defendant falls into one of the nine restricted categories (for example, convicted felon, illegal alien, or drug addict). The prosecutor need not prove that the defendant knows she falls into a restricted category. The strict liability standard makes sense in a prosecution against a principal. But automatically applying the same (strict liability) mens rea standard to the aider and abettor (the one loaning or selling the gun)--which is precisely what the federal aiding and abetting statute requires (7)--clashes with the congressional intent behind [section] 922(d). When Congress enacted [section] 922(d), it decided to punish a person who sold or disposed of a firearm or ammunition to, for instance, a convicted felon or a drug addict only if the person knew or should have known of the person's restricted status. But if the prosecution must prove only that the principal is in a restricted class and that the alleged aider and abettor knowingly facilitated his possession, then it becomes a de facto strict liability offense for the aider and abettor, and a person could be convicted without regard to whether she knew or should have known of a buyer or borrower's restricted status. In other words, while [section] 922(d) requires the defendant to know or have reason to know of the principal's restricted status, aider and abettor charges under [section] 922(g) via the federal aiding and abetting statute possess no such requirement.

The second flaw is the jumbled application of aiding and abetting under 18 U.S.C. [section] 2(a). The statute requires placing the mens rea of the principal upon the aider and abettor. (8) But some federal circuit courts skirt this requirement and simply apply [section] 922(d)'s specific intent for aiding and abetting, or apply a specific intent for aiding and abetting while also applying the intent of the principal offender. The results, which are far from uniform, create a circuit split that could, given one interpretation, lead to a strict liability felony for aiding and abetting illegal firearms possession.

This Note explains the current circuit split regarding aiding and abetting illegal firearm possession and argues that the split should be resolved legislatively by restricting [section] 922(g) charges via [section] 2(a). Possible judicial remedies are also discussed. Considerations include how the U.S. Supreme Court would resolve the current circuit split: the Court could either apply its reasoning in Staples v. United States (9) to [section] 922(g), or adopt its formulation of aiding and abetting in Nye & Nissen v. United States, (10) or it could do both. Ultimately, the current disparity is best resolved by Congress, for it does not appear that aiding and abetting will ever find uniform judicial application within criminal law.

Part I of this Note summarizes the legislative history of [section] 922(d) and [section] 922(g). Part II summarizes the legislative and judicial history of aiding and abetting. Part III outlines the current circuit split regarding aiding and abetting illegal firearms possession. Part IV discusses possible judicial and legislative remedies to resolve the current circuit split and argues that because [section] 922(g) remains an available charge via the federal aiding and abetting statute and because the application of aiding and abetting remains fickle despite numerous modifications by both Congress and the judiciary, the best solution is for Congress to amend [section] 922(g) by definitively eliminating the option of bringing a [section] 922(g) charge via the federal aiding and abetting statute.

1. A BRIEF OVERVIEW OF 18 U.S.C. [section] 922(D) AND [section] 922(G)

   While [section] 922(d) and [section] 922(g) originally applied separately to gun merchants and restricted classes, respectively, after 1986 they overlapped and ultimately contradicted one another regarding aiding and abetting. Before further discussing this contradiction, this Note takes a brief look at the history of these two statutes to provide insight into how this flaw originated.

   1. The History of [section] 922(g)

      Congress first enacted 18 U.S.C. [section] 922 in the Gun Control Act of 1968, (11) and it first appeared in the U.S. Code in 1970. (12) What is now [section] 922(g) was originally two separate subsections, [section] 922(g) and (h). (13) These two subsections were nearly identical and only differed in restricting "ship[ment] or transport" of firearms and "rece[ption]" of firearms, respectively. (14) Congress consolidated these subsections in the Firearms Owners' Protection Act, which was enacted in 1986, (15) and first appeared in the U.S. Code in 1988. (16)

      Originally, [section] 922(g) and [section] 922(h) restricted four classes of persons from shipping, transporting, or receiving any firearm or ammunition in interstate or foreign commerce:

      (1) [any person] who is under indictment for, or who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;

      (2) [any person] who is a fugitive from justice;

      (3) [any person] who is an unlawful user of or addicted to [drugs] ...; or

      (4) [any person] who has been adjudicated as a mental defective or who has been committed to a mental institution .... (17)

      When Congress consolidated [section] 922(g) and [section] 922(h) into [section] 922(g), it added three classes:

      (5) [any person] who, being an alien, is illegally or unlawfully in the United States;

      (6) [any person] who has been discharged from the Armed Forces under dishonorable conditions; or

      (7) [any person] who, having been a citizen of the United States, has renounced his citizenship .... (18)

      Another notable change in 1986 was the removal from [section] 922(g)(1) of restrictions against those under a felony indictment. (19) In the 1994 Code, Congress also added a restriction against persons subject to certain restraining orders. (20) Finally, in 1996, Congress added [section] 922(g)(9), prohibiting firearm transportation, possession, or reception (in interstate or foreign commerce) by anyone "who has been convicted in any court of a misdemeanor crime of domestic violence." (21)

   2. Mens Rea in [section] 922(g)

      There is no explicit mens rea requirement in any version of [section] 922(g). (22) Based on the wording of the statute, the prosecution merely has to prove that the defendant belongs to one of the nine restricted classes and that the defendant transported a firearm in interstate or foreign commerce, possessed a firearm in or affecting commerce, or received any firearm which has been shipped or transported in interstate or foreign commerce. (23) Thus, on its face, [section] 922(g) appears to be a strict liability statute. Every federal circuit, however, holds otherwise. (24) The federal circuits have drawn this conclusion based on 18 U.S.C. [section] 924(a)(2) (25)--the penalty statute for [section] 922(g)--reasoning that because [section] 924(a)(2) requires a knowing violation of [section] 922(g), the government must prove that the defendant knowingly possessed a firearm. (26) "Knowingly" possessing is the only mens rea requirement in [section] 922(g), and regarding attendant circumstances, the prosecution need prove only that the offender is in one of the restricted classes, not that the offender knew of this fact. While this does no injustice to the principal offender, applying the same mens rea requirement to a person charged with aiding and abetting a [section] 922(g)...