Local
11 November 2009, 13:08
My final project for Legal Research and Writing was an argument brief in support of the Derivative intent approach for determining what mens rea prosecutors are required to prove in aiding and abetting cases.
Considering the subject matter, the lack of a cohesive nation wide rule, and the fact that a large number of members here own firearms, I thought I'd write a quick brief on the subject for the good of the forum. Quick is a bit of misnomer, I'll be condensing a 25 page brief I just wrote as much as possible, but I'll also be explaining a lot of legal theory and jargon that I otherwise wouldn't have to in order for it to make sense to as many SOCNET'ers as possible.
Next Tuesday I'll go before Suffolk Superior court house to argue my side in a mock trial in front of a real judge. Practicing condensing the important facts and strongest arguments will be a great help to me, so please feel free to ask questions or offer feedback about areas I could be more clear.
The case is a made up fact pattern, but the law and legal analysis is real (and hopefully correct!).
This is not meant to be legal advice to anyone. Persons unsure of the legality of actions involving firearms should speak to a knowlegeable local lawyer. Local makes no guarantee's about the accuracy of his work (but I work pretty hard ;)) and this should not be construed as creating an attorney client relationship with any reader or responder.
The Question: Can a Defendant can be convicted under 18 U.S.C. § 922(g)(1), via 18 U.S.C. § 2(a) aiding and abetting, for helping someone come into possession of a firearm if he did not know that the person whom he provided the firearm to had been convicted of a felony.
The Facts: Defendant Nick Hume is charged with aiding and abetting a felon in possession of a firearm. Defendant encountered a friend of his, Bones Darley, he hadn't seen since High School.
(dialog was written by my professor, I'm condensing it, but her idea of what two gangsters sound like is hilarious)
Defendant Hume: You look strung out man, whats wrong?
Mr. Darley: I made war on the wrong dog.
Defendant Hume: you should carry a gun man
Mr. Darley: I don't know if thats such a good idea, I just got out of a three month stint for hitting a bitch down at the post office. Besides, I don't got any money man.
Defendant Hume: Don't worry about it man, I'll get you a gun, just don't go doing nothing stupid with it you know?
Six days later Mr. Darley walks into a post office and after a verbal altercation with a post office employee, kills 4 employee's and two customers with the gun Defendant provided him.
Though Mr. Darley had only served three months - he had been sentenced to 14 months, making him a felon for the purposes of 18 U.S.C. § 922(g)(1). Mr. Hume did not, and had no reason to know that Mr. Darley was a felon when he provided the Gun to Mr. Darley.
The Laws in Question:
18 U.S.C. § 922(g)(1): Makes it unlawful for: Any person who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year . . . [to] to 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.
In plain language: It is illegal to knowingly possess a gun, either actually or constructively, if you are a felon (or fall within any of the other subsections of 922(g). The elements would read like (1) be a felon (2) Knowingly possess a gun (3) the gun has moved in interstate commerce.
Elements (1) and (3) are strict liability elements. This means it is not required that the felon be aware of his own felonious status, or the fact that gun moved in interstate commerce. (that last part is there simply because congress only has the power legistlate over that which the constitution explictly gives it power. Congress has the power to regulate interstate commerce and things which directly affect it, not the power to police the states. Element (3) is what we call a shoe-horn element, its inclusion allows congress to regulate that which they would otherwise not be able to. Moving from the plant it was produced in, across state lines to the store that sold it, is enough to satisfy this element).
Element (2) requires "knowing possession." Our system of criminal code splits crimes into two parts. these are the:
Actus Rea: This is the actual act. Transferring the gun. Pointing a gun and pulling the trigger, driving over the speed limit, etc.
Mens Rea : This is the mental component. In American and British law most crimes require the state to prove a "guilty mind." The difference between murder and manslaughter frequently boils down to the intentions of the defendant when he commited the Actus Rea. A common example would be: (scenario 1) Johnny lives on a farm and frequently shoots at targets he places on piles of hay. Johnny points his gun at the target, intending to shoot the target and pulls the trigger. Unfortunately, Sarah, a neighborhood kid playing a game of hide and seek is hiding in that pile of hay. Johnny shoot Sarah and kills her. (Scenario 2) Johnny is shooting at his targets, when he see's Sara trampling his flower patch. Angry, Johnny points the gun at Sarah and pulls the trigger shooting and killing her. In Scenario 1, though regrettable, Johnny would not be guilty of any crime (assuming its legal for him to shoot targets in his back yard). In Scenario 2 Johnny would probably be guilty of Murder. In both scenario's Johnny committed the same actus rea, but his mens rea was different. In scenario 1 Johnny had no knowledge of Sara hiding in the pile of hay. He intended to shoot the target reasonably believing there not to be anyone in the pile of hay. In scenario 2, Johnny intended the consequences of his actions. He pointed the gun at Sara and pulled the trigger, knowing what would happen, and intending to for it to happen.
To satisfy element 2, the state has to prove the actus rea, that defendant possessed the gun, and the mens rea - that defendant knew he possessed it and what it was. For instance, if someone hid the gun in his backpack without him knowing and the gun was later found during a traffic stop, if defendant could prove he had no knowledge he possessed the gun, he would not be guilty.
18 U.S.C. § 2 (A) Aiding and abetting : Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.
The original statute was created to do away with the common law distinctions between aiders and abettors and principals. Section 2(a) is not a separate crime with its own distinct elements. Defendant is charged with assisting the principal in violating the principal offense. The language "punishable as a principal" means that a defendant who aids in the principals offense, steps into the shoes of the principal in the eyes of the law and is just as guilty, and may be punished the same as the principal. Defendant does not become the principal however, Defendant in our fact pattern is not a felon and therefor could not be guilty of being a felon in possession. By assisting the principal and providing the gun however, if found guilty, Defendant will be sentenced as if he was a felon and he possessed the gun.
Other laws I will mention in the argument:
18 USC 922(d): It shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person (is a felon for the purpose of 18 USC 922).
Section 922(d) was added as part of the FOPA (firearm owners protection act). Section 922(d) was created to protect people like gunshop owners who sell firearms from reasonable mistakes. 922(d) is noteably different than 922(g) because (d) includes the language "knowing or having reasonable cause to believe." This is called the "knew or should have known" standard for mens rea. In order to find the gunshop owner guilty, the prosecutor would have to prove that the gun shop owner knew or should have known that the person he was selling to was a felon, as opposed to the felon under 922(g) being guilty without the prosecutor having to prove he knew or should have known he was a felon. Though I use the example of a gun shop owner, the statute is not limited to gun store owners. Theoretically any individual who transfers a firearm to another could be charged under 922(d).
18 USC 2(b): Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.
2(b) is known as the "causer" statute. If you take a mentally handicapped person, and for the purpose of doing harm to a bank that stiffed you, convince this handicapped person that the bank is full of devils that must be killed and believing you they take a sharp stick, walks into the bank and stab someone - while you didn't provide the stick, you didn't 'tell' him to do it, and didn't yourself 'do' anything illegal - you still caused the attack to occur. The main difference between 2(b) and 2(a) is 2(b) includes the term willfully - again - a term requiring prosecutors to prove a higher standard of mens rea - that the person acted willfully to bring about the resulting crime.
wow. That was a lot. I wonder if anyone actually read this far?
The Derivative vs. Purposeful intent Standards
Interestingly, there is no nation wide rule for determining what mens rea is required of the aider and abettor to be guilty. Since the Supreme Court hasn't ruled on the matter and Congress hasn't modified the aiding and abetting statute to make clear which theory they intended, the various state and federal circuits have made their own decisions. Only decisions made by the Supreme court are "controlling" for all circuits. While courts in one circuit will examine how courts in other circuits have ruled on an issue, they are not required to rule the same way, decisions in one circuit are not controlling over the other.
The Derivative Intent: The mens rea required of the aider and abettor is that of the principal. If the crime of the principal does not require a guilty mens rea than the prosecutor should not be required to prove a guilty mens rea for the aider and abettor. The purpose of 2(a) was to remove distinctions and punish the aider and abettor as the principal. By requiring the same mens rea as the principal, the Derivative intent approach does not create distinctions which are not included in the statute and punishes the aider and abettor as the principal.
The Purposive intent Standard: Under the Purposive intent standard, in order to be guilty of aiding and abetting, the defendant must always have intended to aid in the crime. The Purposeful intent approach distinguishes the “intent to facilitate the commission of a crime” from the “requisite intent of the underlying substantive offense.” Under the purposive intent standard, aiding and abetting is always a specific intent crime, even if the underlying offense (like in this case) is a general intent crime.
After reading all this, understanding that the duty of the courts is to interpret law - not create law, Where do you stand?
Clearly the Defendant wants the court to adopt the purposive intent standard, doing so would require the prosecutor to prove that Defendant Hume knew or should have known that Bones Darley was a felon. On the facts, the prosecutor concedes the state can not do this. (for the purpose of the exercise we weren't allowed to argue that Defendant should have known, or should have found out about bones darleys felony status before providing him a gun)
The prosecutor wants the state to adopt the derivative intent standard. Not being required to prove a guilty mens rea makes their case much easier.
Where do you stand?
Next post I'll detail the arguments made by both sides.
- Local
Considering the subject matter, the lack of a cohesive nation wide rule, and the fact that a large number of members here own firearms, I thought I'd write a quick brief on the subject for the good of the forum. Quick is a bit of misnomer, I'll be condensing a 25 page brief I just wrote as much as possible, but I'll also be explaining a lot of legal theory and jargon that I otherwise wouldn't have to in order for it to make sense to as many SOCNET'ers as possible.
Next Tuesday I'll go before Suffolk Superior court house to argue my side in a mock trial in front of a real judge. Practicing condensing the important facts and strongest arguments will be a great help to me, so please feel free to ask questions or offer feedback about areas I could be more clear.
The case is a made up fact pattern, but the law and legal analysis is real (and hopefully correct!).
This is not meant to be legal advice to anyone. Persons unsure of the legality of actions involving firearms should speak to a knowlegeable local lawyer. Local makes no guarantee's about the accuracy of his work (but I work pretty hard ;)) and this should not be construed as creating an attorney client relationship with any reader or responder.
The Question: Can a Defendant can be convicted under 18 U.S.C. § 922(g)(1), via 18 U.S.C. § 2(a) aiding and abetting, for helping someone come into possession of a firearm if he did not know that the person whom he provided the firearm to had been convicted of a felony.
The Facts: Defendant Nick Hume is charged with aiding and abetting a felon in possession of a firearm. Defendant encountered a friend of his, Bones Darley, he hadn't seen since High School.
(dialog was written by my professor, I'm condensing it, but her idea of what two gangsters sound like is hilarious)
Defendant Hume: You look strung out man, whats wrong?
Mr. Darley: I made war on the wrong dog.
Defendant Hume: you should carry a gun man
Mr. Darley: I don't know if thats such a good idea, I just got out of a three month stint for hitting a bitch down at the post office. Besides, I don't got any money man.
Defendant Hume: Don't worry about it man, I'll get you a gun, just don't go doing nothing stupid with it you know?
Six days later Mr. Darley walks into a post office and after a verbal altercation with a post office employee, kills 4 employee's and two customers with the gun Defendant provided him.
Though Mr. Darley had only served three months - he had been sentenced to 14 months, making him a felon for the purposes of 18 U.S.C. § 922(g)(1). Mr. Hume did not, and had no reason to know that Mr. Darley was a felon when he provided the Gun to Mr. Darley.
The Laws in Question:
18 U.S.C. § 922(g)(1): Makes it unlawful for: Any person who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year . . . [to] to 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.
In plain language: It is illegal to knowingly possess a gun, either actually or constructively, if you are a felon (or fall within any of the other subsections of 922(g). The elements would read like (1) be a felon (2) Knowingly possess a gun (3) the gun has moved in interstate commerce.
Elements (1) and (3) are strict liability elements. This means it is not required that the felon be aware of his own felonious status, or the fact that gun moved in interstate commerce. (that last part is there simply because congress only has the power legistlate over that which the constitution explictly gives it power. Congress has the power to regulate interstate commerce and things which directly affect it, not the power to police the states. Element (3) is what we call a shoe-horn element, its inclusion allows congress to regulate that which they would otherwise not be able to. Moving from the plant it was produced in, across state lines to the store that sold it, is enough to satisfy this element).
Element (2) requires "knowing possession." Our system of criminal code splits crimes into two parts. these are the:
Actus Rea: This is the actual act. Transferring the gun. Pointing a gun and pulling the trigger, driving over the speed limit, etc.
Mens Rea : This is the mental component. In American and British law most crimes require the state to prove a "guilty mind." The difference between murder and manslaughter frequently boils down to the intentions of the defendant when he commited the Actus Rea. A common example would be: (scenario 1) Johnny lives on a farm and frequently shoots at targets he places on piles of hay. Johnny points his gun at the target, intending to shoot the target and pulls the trigger. Unfortunately, Sarah, a neighborhood kid playing a game of hide and seek is hiding in that pile of hay. Johnny shoot Sarah and kills her. (Scenario 2) Johnny is shooting at his targets, when he see's Sara trampling his flower patch. Angry, Johnny points the gun at Sarah and pulls the trigger shooting and killing her. In Scenario 1, though regrettable, Johnny would not be guilty of any crime (assuming its legal for him to shoot targets in his back yard). In Scenario 2 Johnny would probably be guilty of Murder. In both scenario's Johnny committed the same actus rea, but his mens rea was different. In scenario 1 Johnny had no knowledge of Sara hiding in the pile of hay. He intended to shoot the target reasonably believing there not to be anyone in the pile of hay. In scenario 2, Johnny intended the consequences of his actions. He pointed the gun at Sara and pulled the trigger, knowing what would happen, and intending to for it to happen.
To satisfy element 2, the state has to prove the actus rea, that defendant possessed the gun, and the mens rea - that defendant knew he possessed it and what it was. For instance, if someone hid the gun in his backpack without him knowing and the gun was later found during a traffic stop, if defendant could prove he had no knowledge he possessed the gun, he would not be guilty.
18 U.S.C. § 2 (A) Aiding and abetting : Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.
The original statute was created to do away with the common law distinctions between aiders and abettors and principals. Section 2(a) is not a separate crime with its own distinct elements. Defendant is charged with assisting the principal in violating the principal offense. The language "punishable as a principal" means that a defendant who aids in the principals offense, steps into the shoes of the principal in the eyes of the law and is just as guilty, and may be punished the same as the principal. Defendant does not become the principal however, Defendant in our fact pattern is not a felon and therefor could not be guilty of being a felon in possession. By assisting the principal and providing the gun however, if found guilty, Defendant will be sentenced as if he was a felon and he possessed the gun.
Other laws I will mention in the argument:
18 USC 922(d): It shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person (is a felon for the purpose of 18 USC 922).
Section 922(d) was added as part of the FOPA (firearm owners protection act). Section 922(d) was created to protect people like gunshop owners who sell firearms from reasonable mistakes. 922(d) is noteably different than 922(g) because (d) includes the language "knowing or having reasonable cause to believe." This is called the "knew or should have known" standard for mens rea. In order to find the gunshop owner guilty, the prosecutor would have to prove that the gun shop owner knew or should have known that the person he was selling to was a felon, as opposed to the felon under 922(g) being guilty without the prosecutor having to prove he knew or should have known he was a felon. Though I use the example of a gun shop owner, the statute is not limited to gun store owners. Theoretically any individual who transfers a firearm to another could be charged under 922(d).
18 USC 2(b): Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.
2(b) is known as the "causer" statute. If you take a mentally handicapped person, and for the purpose of doing harm to a bank that stiffed you, convince this handicapped person that the bank is full of devils that must be killed and believing you they take a sharp stick, walks into the bank and stab someone - while you didn't provide the stick, you didn't 'tell' him to do it, and didn't yourself 'do' anything illegal - you still caused the attack to occur. The main difference between 2(b) and 2(a) is 2(b) includes the term willfully - again - a term requiring prosecutors to prove a higher standard of mens rea - that the person acted willfully to bring about the resulting crime.
wow. That was a lot. I wonder if anyone actually read this far?
The Derivative vs. Purposeful intent Standards
Interestingly, there is no nation wide rule for determining what mens rea is required of the aider and abettor to be guilty. Since the Supreme Court hasn't ruled on the matter and Congress hasn't modified the aiding and abetting statute to make clear which theory they intended, the various state and federal circuits have made their own decisions. Only decisions made by the Supreme court are "controlling" for all circuits. While courts in one circuit will examine how courts in other circuits have ruled on an issue, they are not required to rule the same way, decisions in one circuit are not controlling over the other.
The Derivative Intent: The mens rea required of the aider and abettor is that of the principal. If the crime of the principal does not require a guilty mens rea than the prosecutor should not be required to prove a guilty mens rea for the aider and abettor. The purpose of 2(a) was to remove distinctions and punish the aider and abettor as the principal. By requiring the same mens rea as the principal, the Derivative intent approach does not create distinctions which are not included in the statute and punishes the aider and abettor as the principal.
The Purposive intent Standard: Under the Purposive intent standard, in order to be guilty of aiding and abetting, the defendant must always have intended to aid in the crime. The Purposeful intent approach distinguishes the “intent to facilitate the commission of a crime” from the “requisite intent of the underlying substantive offense.” Under the purposive intent standard, aiding and abetting is always a specific intent crime, even if the underlying offense (like in this case) is a general intent crime.
After reading all this, understanding that the duty of the courts is to interpret law - not create law, Where do you stand?
Clearly the Defendant wants the court to adopt the purposive intent standard, doing so would require the prosecutor to prove that Defendant Hume knew or should have known that Bones Darley was a felon. On the facts, the prosecutor concedes the state can not do this. (for the purpose of the exercise we weren't allowed to argue that Defendant should have known, or should have found out about bones darleys felony status before providing him a gun)
The prosecutor wants the state to adopt the derivative intent standard. Not being required to prove a guilty mens rea makes their case much easier.
Where do you stand?
Next post I'll detail the arguments made by both sides.
- Local