Defense argued woman did not know about husband's prior felony convictions
By Tom Egan
The Daily Record Newswire
PROVIDENCE, RI — A defendant could not be convicted of aiding and abetting her husband’s unlawful possession of a firearm absent proof that she actually knew he previously had been convicted of a felony, the 1st U.S. Circuit Court of Appeals has ruled.
The defendant claimed that the trial judge erred by instructing the jurors that they could convict the defendant if she “knew or had reason to know” her husband previously had been convicted of a crime punishable by more than a year in prison.
“[T]he trial court erred in instructing the jury on the state of mind element of the aiding and abetting offense,” Judge William J. Kayatta Jr. wrote for the unanimous 1st Circuit panel. “In a case of first impression, we find that the jury should not have been allowed to convict [the defendant] of aiding and abetting [her husband]’s unlawful possession of a firearm merely because she ‘had reason to know’ that [he] had previously been convicted of a crime punishable by more than a year in prison.”
The 32-page decision is United States v. Ford.
Steven Alan Feldman of Uniondale, New York, argued the appeal on behalf of the defendant. The government’s case was argued by Assistant U.S. Attorney Margaret D. McGaughey.
Growing operation
Maine drug enforcement officers executed a warrant to search the defendant’s home. The search uncovered evidence of a substantial indoor marijuana growing operation, including 211 marijuana plants and financial records consistent with a significant marijuana distribution business.
The agents also found two dismantled semiautomatic rifles, various firearm parts, and a video of James F. Ford holding and firing one of the rifles at a firing range as his wife, defendant Darlene Ford, narrated.
The defendant was tried separately from her husband. She was charged with drug offenses as well as aiding and abetting a felon’s possession of a firearm, in violation of 18 U.S.C. §§2, 922(g)(1) and 924(a)(2).
The aiding and abetting charge was based on the defendant’s semiautomatic rifle, which she allowed her husband to use for target practice. Five to seven years before the defendant aided him in possessing the firearm, her husband had been convicted in Massachusetts of three felonies punishable by more than one year in prison: possessing marijuana with intent to cultivate and distribute; possessing a firearm without proper identification; and possessing ammunition without proper identification.
Defense counsel stressed that the defendant did not actually know about any of her husband’s prior felony convictions, while the government emphasized the ample circumstantial evidence suggesting that she “knew or had reason to know” about them.
The trial judge instructed the jury in accordance with the government’s requested language. The jury returned a verdict finding the defendant guilty.
Credibility issue
On appeal, Kayatta noted that a line of U.S. Supreme Court precedent established a “background presumption … in favor of a scienter requirement [that applies] to each of the statutory elements that criminalize otherwise innocent conduct.”
That scienter requirement, absent some indication to the contrary, requires that the government prove the existence of some mens rea.
“Proof of a mens rea, as conventionally understood, requires proof ‘that the defendant know the facts that make his conduct illegal,’” Kayatta said.
“[B]ut for James’s criminal history, there would have been no gun possession crime under section 922(g)(1),” Kayatta said.
“Hence, if Darlene was not aware of that history, she could not have acted with the requisite criminal purpose,” the judge stated. “To rule otherwise would be to say that we can put a person in prison for a crime, without congressional direction, merely because the person was negligent in failing to be aware of the fact that transformed innocent behavior into criminal behavior.”
The 1st Circuit decided to “adhere to our view that, in order to establish criminal liability under 18 U.S.C. §2 for aiding and abetting criminal behavior, … the government need prove beyond a reasonable doubt that the putative aider and abettor knew the facts that make the principal’s conduct criminal.”
Here, Kayatta said, that meant the government had to prove the defendant knew her husband previously had been convicted of a crime punishable by more than a year in prison.
The panel then turned to the government’s argument that the instructional error was harmless.
“Whether this argument is correct turns on our answer to the following question: Was the evidence so overwhelming that any rational jury would have been compelled to find beyond a reasonable doubt that Darlene knew (or willfully disregarded) either that James could not legally possess a gun or, at least, that he had been convicted of an offense punishable by more than a year in prison?,” Kayatta stated. “We think that the answer is plainly ‘no.’”
The panel found that the cumulative force of the circumstantial evidence would have been more than enough to allow a properly instructed jury to find beyond a reasonable doubt that the defendant had the required mens rea. That evidence would have allowed a jury to find that the defendant and her husband lived together for decades, during which time he shared with her the details of the family’s drug operations both in Massachusetts and Maine.
The defendant, however, testified that she did not even know that her husband had been convicted of anything.
“Issues of credibility are customarily for the jury,” Kayatta said.
The government conceded that the evidence on the defendant’s knowledge presented a “credibility choice [that] was the jury’s to make.”
The 1st Circuit agreed.
“The error, therefore, was not harmless,” Kayatta stated.
