Sixth Circuit Weighs in on Split Re Level of Knowledge Aider and Abetter Must Have under 18 U.S.C. § 922(g)(1)

Per U.S. v. Gardner, --- F.3d ----, 2007 WL 1518077 (6th Cir. May 25, 2007):

Gardner next argues that there was insufficient evidence that he aided and abetted a felon in possession of a firearm. Gardner was charged with being a felon in possession of a firearm, pursuant to 18 U.S.C. § 922(g)(1).

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[F]or Gardner's conviction to stand, there must . . . be sufficient evidence to show that Gardner aided and abetted McMillion in the commission of that crime. The elements that the government must show to prove aiding and abetting are: (1) an act by a defendant that contributes to the commission of a crime; and (2) the intent to aid in the commission of the crime. Lawson, 872 F.3d at 181. Because there is evidence that Gardner brought both weapons into the car, Gardner certainly committed an act that contributed to McMillion's commission of the offense. Thus, we now consider whether Gardner had the required intent to aid in McMillion's commission of the crime.

We have yet to decide whether this element requires proof that the aider and abetter knew or should have known that the principal, McMillion in this case, was a convicted felon. The circuits are split on this question. The Ninth Circuit has held that the government need not show that the defendant knew the principal was a felon. United States v. Canon, 993 F.2d 1439, 1442 (9th Cir.1993); United States v. Graves, 143 F.3d 1185, 1188 (9th Cir .1998) (“Canon decided the question of whether an aider and abettor is required to know of the principal's status as a felon.”). Also, while the Seventh Circuit has not directly confronted this particular question, that court has held that a defendant in this type of case need only share the principal's knowledge that the principal possessed a gun. United States v. Moore, 936 F.2d 1508, 1527-28 (7th Cir.1991) (“Moore was clearly aware of Miles' use of a gun in both armed robberies and, thus, satisfied this prong of the ‘aiding and abetting’ test.”). In contrast, the Third Circuit has held that the government must show that the defendant must know or have reasonable cause to know that the principal is a felon in order to sustain an aiding-and-abetting conviction under § 922(g). United States v. Xavier, 2 F.3d 1281, 1286 (3d Cir.1993).

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[W]e agree with the Third Circuit and hold that, in order for aiding-and-abetting liability to attach under § 922(g), the government must show that the defendant knew or had cause to know that the principal was a convicted felon. Xavier, 3 F.3d at 1286.