6th Circuit Discusses Split Re Intent Element to Prove Crime of Aiding and Abetting a Felon in Possession of a Firearm

Per U.S. v. Gardner , 488 F.3d 700 (6th Cir.(Tenn.) May 25, 2007) (NO. 05-6272)

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.2d 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).

The Ninth and Seventh Circuits offer little reasoning for their conclusions. In Canon, 993 F.2d at 1442 (citations omitted), the Ninth Circuit provides almost no support for its holding, writing that, because the government did not have to show that the principal knew his own felonious status, the government only had to show that the aider and abettor "associated himself with [the principal's crime], that he participated in it as in something that he wished to bring about, [and] that he *715 [sought] by his action to make it succeed." The Seventh Circuit followed similar reasoning, holding in passing that, because the "required state of mind" for a principal's § 922(g) violation is that the principal "knowingly possessed the gun," the government must only show that the aider and abettor knew the principal possessed the gun. Moore, 936 F.2d at 1526-28 (citations omitted).

The Third Circuit decision, in contrast, is well-reasoned and we concur with it.