United States v. Huet

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______

No. 10-4729
______

UNITED STATES OF AMERICA,
Appellant

v.

MELISSA A. HUET
______

On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 2-08-cr-00215-002)
District Judge: Honorable Arthur J. Schwab
______

Argued October 26, 2011
Before: FISHER, VANASKIE and ROTH, Circuit Judges.

(Filed: January 5, 2012)

Laura S. Irwin (Argued)
Office of the United States Attorney
700 Grant Street, Suite 4000
Pittsburgh, PA 15219
Counsel for Appellant
Patrick M. Livingston (Argued)
310 Grant Street, Suite 1430
Pittsburgh, PA 15219
Counsel for Appellee
______

OPINION OF THE COURT
______

FISHER, Circuit Judge.

The Government appeals from the order of the District
Court dismissing the indictment against Melissa Huet
(“Huet”) with prejudice. Huet was charged with aiding and
abetting possession of a firearm by a convicted felon, in
violation of 18 U.S.C. § 922(g)(1) and § 2. The District
Court dismissed the indictment on the basis that: (1) it failed
to state an offense for aiding and abetting under § 922(g)(1)
and § 2; and (2) even if it did state an offense, the charge
violated Huet‟s rights under the Second Amendment of the
U.S. Constitution. For the reasons set forth below, we will
reverse and remand.

I.

On June 5, 2008, a federal grand jury sitting in the
Western District of Pennsylvania returned a three-count
indictment against Huet and her paramour, Marvin Hall
(“Hall”). Counts One and Two, respectively, charged Hall
with possession of a firearm by a convicted felon, in violation
of 18 U.S.C. § 922(g)(1), and transfer of unregistered
firearms, in violation of 26 U.S.C. § 5861(e). Count Three
(“Count Three” or “the Indictment”) charged Huet with

2
knowingly aiding and abetting the possession of a firearm by
a convicted felon, in violation of 18 U.S.C. § 922(g)(1)1 and
§ 2(a)2. On January 29, 2010, Hall pled guilty to Count One,
and was sentenced to time served. On November 22, 2010,
the District Court issued an order dismissing Count Three
with prejudice. The Government filed a timely notice of
appeal.

The allegations in the Indictment stem from an
undercover FBI investigation into the activities of Morgan
Jones (“Jones”) in Clarion County, Pennsylvania. The
investigation focused on attempts to purchase illegal firearms
and explosive devices for criminal activities, as well as the
potential manufacturing and detonation of explosive devices.
During their probe, FBI agents met Hall and Huet, who lived
together. Over the next nine months, agents gathered

1
Section 922(g)(1) states:

It shall be unlawful for any person – who
has been convicted in any court of, a crime
punishable by imprisonment for a term
exceeding one year . . . to ship or transport in
interstate or foreign commerce, or 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.
2
Section 2(a) states: “Whoever commits an offense
against the United States or aids, abets, counsels, commands,
induces or procures its commission, is punishable as a
principal.”

3
evidence allegedly connecting Hall and Huet to various
criminal activities, and on June 6, 2008, a valid search
warrant (the “search warrant”) was executed on the couple‟s
Clarion County home. Agents seized an SKS, Interordnance
M59/66 rifle (“SKS rifle”) from an upstairs bedroom.

Although Huet is legally permitted to possess a
firearm, Hall was convicted in 1999 of possessing an
unregistered firearm, in violation of 26 U.S.C. § 5861(d), and
is therefore prohibited from owning or possessing a firearm.
After being informed of the raid, Huet allegedly told
investigators that the guns in the house belonged to her and
that it was not illegal for her to purchase weapons. Despite
Huet‟s assertions that she alone possessed the SKS rifle, the
Government sought and obtained an indictment charging Hall
with illegal possession of the weapon, and Huet with aiding
and abetting Hall‟s possession.

Huet moved to dismiss Count Three pursuant to Rule
12(b)(3)(B) of the Federal Rules of Criminal Procedure3 on
the basis that the Indictment failed to state an offense under
§ 922(g)(1) and § 2. Count Three states:

From on or about August 10, 2007, to on or
about January 11, 2008, in the Western District
of Pennsylvania, the defendant, Melissa A.
Huet, knowingly and unlawfully aided and
abetted the possession of a firearm, that is an
SKS assault rifle, in and affecting interstate

3
Rule 12(b)(3)(B) provides: “[A]t any time while the
case is pending, the court may hear a claim that the
indictment . . . fails to . . . state an offense.”

4
 commerce, by Marvin E. Hall, who had
previously been convicted on or about March
12, 1999, in the United States District Court for
the Western District of Pennsylvania . . . of the
crime of Possession of Unregistered Firearms,
an offense which is punishable by a term of
imprisonment in excess of one year. In
violation of Title 18, United States Code,
Sections 922(g)(1) and 2.

In granting Huet‟s Rule 12 motion, the District Court stated
that “notably absent from the Indictment . . . [were] any facts
setting forth how defendant Huet aided and abetted defendant
Hall in his unlawful possession of the SKS rifle.” United
States v. Huet, No. 08-0215, 2010 WL 4853847, at *5 (W.D.
Pa. Nov. 22, 2010). The District Court did not limit its
inquiry to the four corners of the Indictment, however, and
examined additional information to discern the Government‟s
theory of the case. The District Court looked to materials
produced pursuant to Rule 16 of the Federal Rules of
Criminal Procedure, as well as record evidence from Hall‟s
case. Specifically, the Court relied upon statements set forth
in the affidavit of probable cause supporting the search
warrant,4 and remarks made by the prosecutor during Hall‟s
4
The affidavit provides, in pertinent part:

Huet indicated that she was angry that
Hall had been showing off an SKS assault rifle.
Huet said that if it happened again, she would
take it “back” to Morgan. Huet further
elaborated that she was worried that if Hall “gets
in trouble with that, I get in trouble too. Cause
it‟s in my name, and he‟s got it.”

5
guilty plea hearing.5 Concluding that this evidence failed to
establish any connection between Huet‟s actions and Hall‟s
possession, the District Court granted Huet‟s Rule 12 motion
to dismiss for failure to state an offense under 18 U.S.C.
§ 922(g)(1) and § 2. Huet, 2010 WL 4853847, at *7.

The District Court‟s view of the Government‟s theory
of the case similarly guided its approach to Huet‟s Second
Amendment challenge. Huet argued that even if Count Three
did state an offense for aiding and abetting a felon in
possession, under the factual scenario presented in this case,
the charge violated her rights under the Second Amendment.
The District Court agreed, finding that “to permit [the]
Indictment to go forward . . . would be [to] countenanc[e] the
total elimination of the right of a sane, non-felonious citizen
to possess a firearm, in her home, simply because her
paramour is a felon.” Id. at *11. “[T]o punish Huet, who has
not been convicted of a felony . . . as a principal, violates the
core of the Second Amendment right to keep arms,” the Court
opined, because the conduct alleged to have aided and abetted
was “purely possessory.” Id. at *7; see id. at *11
(characterizing Government‟s case as an attempt to

5
At Hall‟s guilty plea hearing, the Assistant U.S.
Attorney stated:

Mr. Hall lived with . . . Melissa Huet, . . . [who]
had no prior record of which we are aware, but .
. . bought firearms in her name for Morgan
Jones, who on the side sold firearms. . . . Miss
Huet would allow Mr. Hall to have access to
those firearms. In essence, that‟s the very basis
of the charge against Mr. Hall.

6
“compound[] an inchoate offense upon another inchoate
offense”). Although the District Court did not explicitly
designate the Second Amendment violation as an alternative
basis for dismissal, it clearly viewed it as such. Accordingly,
we must address both the sufficiency of the Indictment and
the Second Amendment challenge.

II.

The District Court had jurisdiction pursuant to 18
U.S.C. § 3231. We have jurisdiction over the District Court‟s
order dismissing the Indictment under 18 U.S.C. § 3731.
“[W]hen reviewing a motion to dismiss an indictment, our
standard of review is mixed.” United States v. Shenandoah,
595 F.3d 151, 156 (3d Cir. 2010) (citations omitted). We
exercise plenary review over the District Court‟s legal
conclusions and review any challenges to its factual findings
for clear error. Id. Here, the primary question is not whether
the District Court‟s findings of fact were erroneous, but
whether the District Court was entitled to find and weigh
facts at all. This is a legal question, over which we exercise
plenary review. Id. We also exercise plenary review over a
constitutional challenge to the application of a statute. United
States v. Marzzarella, 614 F.3d 85, 88 n.2 (3d Cir. 2010)
(citing United States v. Fullmer, 584 F.3d 132, 151 (3d Cir.
2009)).

III.

A.

We first address the Government‟s contention that the
District Court erred in concluding that, under Federal Rule of
Criminal Procedure 12(b)(3)(B), Count Three failed to state

7
an offense for aiding and abetting a felon in possession of a
firearm under 18 U.S.C. § 922(g)(1) and § 2.

1.

Federal Rule of Criminal Procedure 7(c)(1) requires
only that an indictment “be a plain, concise, and definite
written statement of the essential facts constituting the
offense charged.” “[T]he Federal Rules „were designed to
eliminate technicalities in criminal pleadings and are to be
construed to secure simplicity in procedure.‟” United States
v. Resendiz-Ponce, 549 U.S. 102, 110 (2007) (quoting United
States v. Debrow, 346 U.S. 374, 376 (1953)). Although
detailed allegations may have been required under a common
law pleading regime, they “surely are not contemplated by
[the Federal Rules].” Id.

“It is well-established that „[a]n indictment returned by
a legally constituted and unbiased grand jury, . . . if valid on
its face, is enough to call for trial of the charge on the
merits.‟” United States v. Vitillo, 490 F.3d 314, 320 (3d Cir.
2007) (quoting Costello v. United States, 350 U.S. 359, 363
(1956)). We have held that an indictment is facially sufficient
if it “(1) contains the elements of the offense intended to be
charged, (2) sufficiently apprises the defendant of what he
must be prepared to meet, and (3) allows the defendant to
show with accuracy to what extent he may plead a former
acquittal or conviction in the event of a subsequent
prosecution.” Id. at 321 (citation omitted). “[N]o greater
specificity than the statutory language is required so long as
there is sufficient factual orientation” to permit a defendant to
prepare his defense and invoke double jeopardy. United
States v. Kemp, 500 F.3d 257, 280 (3d Cir. 2007) (quoting
United States v. Rankin, 870 F.2d 109, 112 (3d. Cir. 1989)).

8
Generally, an indictment will satisfy these requirements
where it informs the defendant of the statute he is charged
with violating, lists the elements of a violation under the
statute, and specifies the time period during which the
violations occurred. United States v. Urban, 404 F.3d 754,
771 (3d Cir. 2005); see also United States v. McCarty, 862
F.2d 143, 144, 148 (7th Cir. 1988) (finding indictment under
18 U.S.C. § 922(g) sufficient where it tracked the statutory
language, stated the date and place of the alleged possession,
and specifically identified the type of firearm involved). In
contrast, if an indictment fails to charge an essential element
of the crime, it fails to state an offense. United States v.
Wander, 601 F.2d 1251, 1259 (3d Cir. 1979).

In determining whether an indictment validly states the
elements of the offense, we need not blindly accept a
recitation in general terms of the elements of the offense.
United States v. Panarella, 277 F.3d 678, 685 (3d Cir. 2002).
“Federal Rule of Criminal Procedure 12(b)(3)(B) allows a
district court to review the sufficiency of the government‟s
pleadings to . . . ensur[e] that legally deficient charges do not
go to a jury.” United States v. Bergrin, 650 F.3d 257, 268 (3d
Cir. 2011). Although the Government is not required to set
forth its entire case in the indictment, “if the specific facts”
that are alleged “fall beyond the scope of the relevant
criminal statute, as a matter of statutory interpretation,” the
indictment fails to state an offense. Panarella, 277 F.3d at
685; see United States v. Schiff, 602 F.3d 152, 162-66 (3d Cir.
2010) (finding that indictment alleging “failure to rectify
misstatements of others” did not, as a matter of statutory
interpretation, state an offense under 18 U.S.C. § 78j(b) and
SEC Rule 10b-5). However, the scope of a district court‟s
review at the Rule 12 stage is limited. “[A] pretrial motion to

9
dismiss an indictment is not a permissible vehicle for
addressing the sufficiency of the government‟s evidence.”
United States v. DeLaurentis, 230 F.3d 659, 660 (3d Cir.
2000) (citations omitted). “The government is entitled to
marshal and present its evidence at trial, and have its
sufficiency tested by a motion for acquittal pursuant to
Federal Rule of Criminal Procedure 29.” Id. at 661. There is
no criminal corollary to the civil summary judgment
mechanism. Id. In evaluating a Rule 12 motion to dismiss, a
district court must accept as true the factual allegations set
forth in the indictment. United States v. Sampson, 371 U.S.
75, 78-79 (1962); United States v. Besmajian, 910 F.2d 1153,
1154 (3d Cir. 1990). “Evidentiary questions – such as
credibility determinations and the weighing of proof – should
not be determined at this stage.” Bergrin, 650 F.3d at 265
(internal marks and citation omitted). Thus, a district court‟s
review of the facts set forth in the indictment is limited to
determining whether, assuming all of those facts as true, a
jury could find that the defendant committed the offense for
which he was charged. Panarella, 277 F.3d at 685;
DeLaurentis, 230 F.3d at 660.

2.

To survive Huet‟s motion to dismiss, the Government
was required to adequately set forth the elements of aiding
and abetting a felon in possession under 18 U.S.C.
§ 922(g)(1) and § 2. To establish a violation of 18 U.S.C. § 2,
the government must prove: “(1) that the substantive crime
has been committed; and (2) that the defendant charged with
aiding and abetting knew of the commission of the
substantive offense and acted with intent to facilitate it.”
United States v. Petersen, 622 F.3d 196, 208 (3d Cir. 2010)
(citation omitted). Section 922(g)(1), the statute setting forth

10
the substantive offense, requires proof that: (1) the defendant
has been convicted of a crime of imprisonment for a term in
excess of one year; (2) the defendant knowingly possessed the
firearm; and (3) the firearm traveled in interstate commerce.
United States v. Higdon, 638 F.3d 233, 239-40 (3d Cir. 2011).
Because § 922(g)(1) is not a specific intent statute, an
individual can be convicted as an aider and abettor under
§ 922(g)(1) and § 2 if she knew or had reason to know that
she was aiding and abetting possession of a firearm by a
convicted felon. See United States v. Xavier, 2 F.3d 1281,
1286-87 (3d Cir. 1993). Thus, a valid indictment under
§ 922(g)(1) based on an aiding and abetting theory must
allege that: (1) the principal, who had been convicted of a
crime carrying a term of imprisonment in excess of one year,
knowingly possessed a firearm that had traveled in interstate
commerce, Higdon, 638 F.3d at 239-40, and (2) the defendant
knew or had reason to know that the principal was prohibited
from possessing a firearm, Xavier, 2 F.3d at 1286-87, and
rendered actual aid or assistance to the principal in possessing
the firearm, United States v. Nolan, 718 F.2d 589, 592 (3d
Cir. 1983).

In this case, we conclude that the Indictment
adequately set forth the required elements under § 922(g)(1)
and § 2, with “sufficient factual orientation” to allow Huet to
prepare her defense and invoke double jeopardy. See Kemp,
500 F.3d at 280. Count Three lists all required elements of
the offense. It alleges that: (1) Hall, the principal, had
previously been convicted for Possession of Unregistered
Firearms, an offense punishable by a term of imprisonment in
excess of one year, and that he knowingly possessed a firearm
(the SKS rifle) which had traveled in interstate commerce, see
Higdon, 638 F.3d at 239-40; and (2) Huet knowingly aided

11
and abetted Hall‟s possession of that firearm, see Petersen,
622 F.3d at 208; Xavier, 2 F.3d at 1286-87. Count Three also
includes the required “factual orientation”: it specifies the
time period during which the violation occurred (“on or about
August 10, 2007, to on or about January 11, 2008”), see
Urban, 404 F.3d at 771, and identifies the specific weapon
involved, see McCarty, 862 F.2d at 144. No more was
required to allow Huet to prepare her defense and invoke
double jeopardy. See Kemp, 500 F.3d at 280. Accordingly,
we will reverse the order of the District Court granting Huet‟s
Rule 12(b)(3)(B) motion to dismiss for failure to state an
offense.6

We recognize that the District Court may have adopted
the novel procedure followed here to truncate what it
perceived as an incurably weak Government case. However,
in doing so, the District Court committed two errors: (1) it
impermissibly expanded the scope of its review at the Rule 12
stage and evaluated the sufficiency of the evidence; and (2) it
required the Government to meet a heightened pleading
standard. We will discuss each of these issues in turn.

First, although the District Court purported to make a
purely “legal” determination based on “undisputed” facts,
Huet, 2010 WL 4853847, at *2, the language of its
memorandum opinion makes clear that it engaged in fact-
finding and determined that, based on those facts, the
Government would not be able to prove its case. The District

6
Because we conclude that the Indictment should not
have been dismissed, we do not address whether the District
Court abused its discretion by dismissing the Indictment with
prejudice.

12
Court speculated as to the evidence the Government would
introduce at trial, and concluded that such evidence “[did]
nothing to advance the cause that defendant Huet knew, or
had reason to know that defendant Hall was a felon in
possession and that her owning a weapon somehow aided or
abetted him in his unlawful possession of the SKS rifle.” Id.
at *7. By doing this, the District Court failed to adhere to the
fundamental principle that in reviewing the sufficiency of an
indictment, a court must accept as true all of the facts alleged.
Panarella, 277 F.3d at 681; see United States v. Gallagher,
602 F.2d 1139, 1142-43 (3d Cir. 1979). “Evidentiary
questions – such as . . . the weighing of proof – should not be
determined at [the motion to dismiss] stage.” Bergrin, 650
F.3d at 265 (citation omitted).

Unlike other cases in which we have affirmed a district
court‟s dismissal of an indictment as insufficient, Huet‟s case
does not involve a question of whether the facts alleged in the
indictment fall beyond the scope of the relevant criminal
statute as a matter of statutory interpretation. See Panarella,
277 F.3d at 685; see also Schiff, 602 F.3d at 161, 167
(holding that failure to rectify the misstatements of others
does not state an offense under federal securities laws and
thus the government could not proceed on such a theory);
Gov’t of the Virgin Islands v. Greenidge, 600 F.2d 437, 438
(3d Cir. 1979) (finding indictment for assault with intent to
commit rape under 14 V.I.C. § 295(3) insufficient where the
facts alleged showed that the person the defendant assaulted

13
was not the same person he attempted to rape).7 Rather, the
District Court‟s determination that the Indictment failed to
state an offense was based solely on its assessment of the
strength of the Government‟s case.

Moreover, although we have left open the possibility
that, in limited circumstances, a district court may be able to
address the sufficiency of the government‟s evidence in a
pretrial motion to dismiss, this case does not present such a
scenario. See DeLaurentis, 230 F.3d at 660 (acknowledging
that district courts may be able to address sufficiency of the
evidence if there is a stipulated record or if immunity issues
are implicated).8 The District Court erred in concluding that

7
The only potential question of statutory interpretation
– whether the SKS rifle was a “dangerous” or “unusual”
firearm – was determined by the District Court when it took
judicial notice of the fact that the SKS rifle was not an
“assault weapon,” but instead had been designated as a
“curio” by the Bureau of Alcohol, Tobacco, and Firearms,
and was used primarily by hunters and collectors. See United
States v. Huet, No. 08-0215, 2010 WL 4853847, at *4-5
(W.D. Pa. Nov. 22, 2010). That finding is not at issue on
appeal.
8
Although DeLaurentis indicated that there is an
exception to the general rule barring district courts from
considering the sufficiency of the evidence at the Rule 12
stage, we have never explicitly held that such an exception
exists, much less defined its contours. We decline to do so
now. We simply hold that, assuming an exception exists for
cases involving a stipulated record or immunity issues, the
circumstances of this case do not trigger it.

14
the facts here are undisputed. The Government maintains that
it will introduce testimony to prove the elements of aiding
and abetting. At no point during the proceedings before the
District Court did the Government concede that the facts were
undisputed or were complete. In its reply to Huet‟s motion to
dismiss, the Government explicitly stated that it was
“prepared to present testimony” at trial that would establish
that Huet aided and abetted Hall‟s possession. The
Government maintains this position on appeal. Thus, the
District Court‟s finding that the Government lacked evidence
beyond mere possession was premature.9

9
We note that there is a split among our sister circuits
as to whether a district court is ever permitted to rule on a
motion to dismiss based on the sufficiency of the evidence.
Some courts have indicated that in “rare” and “unusual”
cases, it may be appropriate for a court to look to the
sufficiency of the evidence. See, e.g., United States v. Levin,
973 F.2d 463, 466-67 (6th Cir. 1992) (affirming district
court‟s dismissal of an indictment under Rule 12 where the
prosecutor conceded that the facts were undisputed, and based
on the undisputed facts, the defendant could not have formed
the requisite intent to commit the crime). Other circuits have
rejected this approach. See, e.g., United States v. Salman, 378
F.3d 1266, 1268 (11th Cir. 2004) (holding that “there is no
explicit authority to grant a pre-trial judgment as a matter of
law on the merits under the Federal Rules of Criminal
Procedure” and thus, the government should be allowed to
present its evidence at trial, subject to the defendant‟s moving
for a judgment of acquittal under Federal Rule of Criminal
Procedure 29).

15
 Second, the District Court erred to the extent that it
imposed a heightened pleading standard for offenses under 18
U.S.C. § 922(g)(1) and § 2. The District Court dismissed
Count Three based on its determination that “[t]he facts in the
Indictment fail[ed] to set forth any allegations to support the
conclusion that . . . Huet aided and abetted . . . Hall in his
unlawful possession of the SKS rifle.” Huet, 2010 WL
4853847, at *7. The District Court faulted the Government
for failing to include “any specifics” as to how Huet aided
Hall, and determined that the Government simply “charge[d]
its conclusion.” Id. at *4. Although some offenses must be
pled with greater specificity than the “plain, concise, and
definite written statement” contemplated by Rule 7(c)(1), we
have never held aiding and abetting a felon in possession
under 18 U.S.C. § 922(g)(1) and § 2 to be such an offense,
and we decline to do so now.

In arguing for a heightened pleading standard, Huet
attempts to distinguish the Supreme Court‟s decision in
United States v. Resendiz-Ponce, 549 U.S. 102 (2007). In
that case, the issue was whether an indictment alleging
attempted illegal reentry into the United States under 8 U.S.C.
§ 1326(a) had to allege a specific overt act. Id. at 103-04.
The Court held that the government did not have to include
such an allegation because the use of the word “attempt,”
coupled with the specification of the time and place of the
defendant‟s attempted reentry, was sufficient to put the
defendant on notice of the charges against him. Id. at 108.
The Court distinguished the heightened pleading
requirements under 2 U.S.C. § 192, which makes it illegal for
a witness summoned before a congressional committee to
refuse to answer any question “pertinent to the question under
inquiry.” Id. at 109. Because the “relevant hearing‟s subject

16
[is] frequently uncertain but invariably „central to every
prosecution under the statute,‟” the Court explained that an
indictment under § 192 must go beyond the language of the
statute and “allege the subject of the congressional hearing in
order to determine whether the defendant‟s refusal was
„pertinent.‟” Id. (citing Russell v. United States, 369 U.S.
749, 764 (1962)). In contrast, because the term “attempt,” as
used in “common parlance,” connotes action and intent, it
was deemed unnecessary to specify an overt act in an
indictment under 8 U.S.C. § 1326(a). Id. at 107. Huet argues
that because “a single affirmative act” may establish an aider
and abettor‟s culpability, a “concise statement as to [the]
means and/or manner the aider/abetter (sic) used to facilitate
the offense is required.” We find Huet‟s attempt to
distinguish “aid and abet” from “attempt” unpersuasive. Like
the term “attempt,” the terms “aid” and “abet,” as used in
common parlance, sufficiently connote action and intent. See
Resendiz-Ponce, 549 U.S. at 107. Thus, unlike 2 U.S.C.
§ 192, no more than the elements of the statute and the time
and place of the alleged violation are required to inform the
defendant of the charge against which she must defend and
enable her to invoke double jeopardy. See Kemp, 500 F.3d at
280.

Moreover, the District Court‟s suggestion that
Abuelhawa v. United States, 129 S. Ct. 2102 (2009), altered
the pleading requirements for offenses involving accomplice
liability is a mischaracterization of the Supreme Court‟s
holding in that case. In Abuelhawa, the Court held that
making a misdemeanor drug purchase over the telephone
does not constitute “facilitation” of drug distribution under 21
U.S.C. § 843(b). Id. at 2104. Nowhere in the Abuelhawa
opinion did the Court address the pleading requirements

17
under Federal Rule of Criminal Procedure 7. Nor did the
decision modify the law of accomplice liability under 18
U.S.C. § 2. The elements of aiding and abetting under § 2
remain the same. The Abuelhawa Court simply addressed a
narrow question regarding the scope of the term “facilitate”
under § 843(b). 129 S. Ct. at 2104. We decline to extend its
holding any further.

18
 B.

1.

We turn now to Huet‟s Second Amendment challenge.
The Second Amendment provides: “A well regulated Militia,
being necessary to the security of a free State, the right of the
people to keep and bear Arms, shall not be infringed.” U.S.
CONST. amend. II. In District of Columbia v. Heller, 554
U.S. 570, 595 (2008), the Supreme Court held for the first
time that the Second Amendment confers an individual right
to keep and bear arms.10 The right, however, is not unlimited.
Id. The Second Amendment does not guarantee a “right to
keep and carry any weapon whatsoever in any manner
whatsoever and for whatever purpose.” Id. at 626. The Court
cautioned that, “nothing in our opinion should be taken to cast
doubt on longstanding prohibitions on the possession of
firearms by felons and the mentally ill, or laws forbidding the
carrying of firearms in sensitive places such as schools and
government buildings, or laws imposing conditions and
qualifications on the commercial sale of arms.” Id. at 626-27.
Laws prohibiting the possession of “dangerous and unusual
weapons” were left similarly intact. Id. at 627. The Court
made clear that it was “identify[ing] these presumptively

10
In McDonald v. City of Chi., 130 S. Ct. 3020, 3050
(2010), a splintered plurality of the Supreme Court held that
the Second Amendment is applicable to the states, through
the Fourteenth Amendment.

19
lawful regulatory measures only as examples”; the list was
not intended to be exhaustive.11 Id. at 627 n.26.

Applying these principles, the Court invalidated a
District of Columbia law that completely banned handgun
possession in the home and required any lawful firearm to be
kept disassembled and bound by a trigger lock at all times,
rendering it inoperable. Id. at 628-35. The Court explained
that “the inherent right of self-defense [is] central to the
Second Amendment[,]” and the challenged law impermissibly
extended to the home, “where the need for defense of self,
family, and property is most acute.” Id. at 628. Although the
Court did not decide on a level of scrutiny to be applied in
cases involving Second Amendment challenges, it rejected
rational basis review. Id. at 628 n.27. The Court explained
that the Second Amendment “elevates above all other
interests the right of law-abiding, responsible citizens to use
arms in defense of hearth and home.” Id. at 635.

11
Although some of our sister circuits have classified
the “presumptively lawful” language in Heller as dicta, see
United States v. Scroggins, 599 F.3d 433, 451 (5th Cir. 2010);
United States v. McCane, 573 F.3d 1037, 1047 (10th Cir.
2009) (Tymkovich, J., concurring), we disagree. In United
States v. Barton, 633 F.3d 168, 171 (3d Cir. 2011), we
explicitly held that Heller‟s list of “presumptively lawful”
regulations was not dicta, and thus we are bound by it. See
also United States v. Rozier, 598 F.3d 768, 771 n.6 (11th Cir.
2010); United States v. Vongxay, 594 F.3d 1111, 1115 (9th
Cir. 2010) (explaining that Heller Court‟s “presumptively
lawful” list was a limitation on the scope of its holding).

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 In United States v. Marzzarella, we articulated a two-
step analysis for Second Amendment claims under Heller:

First, we ask whether the challenged law
imposes a burden on conduct falling within the
scope of the Second Amendment‟s guarantee.
. . . If it does not, our inquiry is complete. If it
does, we evaluate the law under some form of
means-end scrutiny. If the law passes muster
under that standard, it is constitutional. If it
fails, it is invalid.

614 F.3d 85, 89 (3d Cir. 2010) (internal citations
omitted).

Under the Marzzarella framework, the “presumptively
lawful” regulatory measures identified by the Supreme Court
in Heller carry the presumption of validity because they
regulate conduct “falling outside the scope of the Second
Amendment‟s guarantee.” United States v. Barton, 633 F.3d
168, 172 (3d Cir. 2011) (citing Marzzarella, 614 F.3d at 91)
(explaining that this is a better reading of Heller than one that
would require “presumptively lawful” regulations to satisfy
every level of constitutional scrutiny). In other words, the
longstanding limitations mentioned by the Court in Heller are
exceptions to the right to bear arms. Marzzarella, 614 F.3d at
91.

2.

The constitutional question here is presented in an
unusual way due to the procedural posture of the case. The
District Court‟s characterization of Huet‟s challenge as an as-
applied attack is somewhat misleading. In contrast to a facial

21
attack, an as-applied challenge “does not contend that a law is
unconstitutional as written but that its application to a
particular person under particular circumstances deprived that
person of a constitutional right.” United States v. Marcavage,
609 F.3d 264, 273 (3d Cir. 2010) (citation omitted).
However, because we do not have the benefit of a fully
developed evidentiary record, the “particular circumstances”
of this case remain unclear. As in its analysis regarding the
sufficiency of the Indictment, the District Court‟s error on the
constitutional issue stems from its failure to accept as true the
allegations in the Indictment. Because, as we explained
above, the charges against Huet were properly brought under
Federal Rules of Criminal Procedure 7 and 12, in assessing
Huet‟s constitutional challenge on appeal, we are limited to
determining whether, based on the allegations in the
Indictment – and only the allegations in the Indictment – her
Second Amendment rights have been violated. For the
reasons set forth below, we conclude that a charge properly
brought under § 922(g)(1) and § 2 does not violate the Second
Amendment.

Huet argues that based on the circumstances of her
case, she cannot constitutionally be charged with aiding and
abetting a felon to possess a firearm. Specifically, she
contends that the Government‟s only evidence is that she
possessed the SKS rifle in her home while living with a
convicted felon. The District Court agreed, finding that “to
permit [the] Indictment to go forward” would be to
“countenance[e] the total elimination of the right of a sane,
non-felonious citizen to possess a firearm, in her home,
simply because her paramour is a felon.” Huet, 2010 WL
4853847, at *11.

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 We disagree. We cannot say that an indictment which
properly alleges aiding and abetting a felon in possession
under 18 U.S.C. § 922(g)(1) and § 2 violates the Second
Amendment under Heller. Applying Marzzarella, a properly-
brought aiding and abetting charge does not burden conduct
protected by the Second Amendment. See 614 F.3d at 89.
The District Court‟s characterization of the Indictment as
seeking to criminalize the otherwise legal possession of a
firearm by a non-felon simply because she lives with a felon
is misleading. The Indictment does not allege that Huet‟s
possession of the SKS rifle violated the law; rather, it alleges
that Huet aided and abetted Hall to possess the firearm. We
are mindful of the risk that felon dispossession statutes, when
combined with laws regarding accomplice liability, may be
misused to subject law-abiding cohabitants to liability simply
for possessing a weapon in the home. However, in this case,
the District Court‟s determination that the Government
overreached was premature. Huet‟s arguments regarding the
circumstances of her possession must await further
development of the evidentiary record.

Huet‟s argument that her status as a non-felon brings
her case within the scope of Second Amendment protection is
unavailing. Relying on our decision in United States v.
Barton, 633 F.3d 168 (3d Cir. 2011), Huet argues that, as a
person legally entitled to own a firearm, she is categorically
different than a felon, and thus cannot be charged under
§ 922(g)(1) for possessing a firearm. This argument is
flawed. Huet‟s status in relation to prohibited persons is
irrelevant. She is correct that her circumstances distinguish
her from “persons historically barred from Second
Amendment protections”; she is not barred from Second
Amendment protection at all. The Government readily

23
concedes that Huet would not violate § 922(g)(1) simply by
possessing a firearm. She would, however, violate
§ 922(g)(1) and § 2 by aiding and abetting a felon to possess
a firearm. Count Three charges her with the latter. Thus, the
fact that she is not within the class of persons prohibited from
possessing a firearm is irrelevant; her right to possess a
firearm is not implicated by the charges against her.
Moreover, even if part of the conduct that allegedly aided and
abetted Hall‟s possession involved possession of the firearm
by Huet, the Second Amendment does not afford citizens a
right to carry arms for “any purpose.” Heller, 554 U.S. at
595. Huet‟s right to keep the SKS rifle in her home did not
give her the right to facilitate Hall‟s possession of the
weapon. Otherwise illegal conduct does not somehow
become immunized because possession of a firearm is
involved in the offense. See, e.g., United States v. Potter, 630
F.3d 1260, 1261 (9th Cir. 2011) (per curiam) (rejecting a
defendant‟s challenge to his conviction for possession of a
firearm in furtherance of drug trafficking and concluding that
“[e]ven if [the defendant] kept the firearm also to protect
himself and his home,” it could not “seriously be contended
that the Second Amendment guarantees a right to use a
firearm in furtherance of drug trafficking”).

Because the conduct alleged in Count Three is beyond
the scope of Second Amendment protection, our inquiry
under Marzzarella is complete. See 614 F.3d at 89. We need
not conduct a means-end inquiry. See id. However, in
Marzzarella, we cautioned that because Second Amendment
jurisprudence is “in its nascency,” we must tread carefully
when deciding whether to find conduct not explicitly
identified by the Heller Court as subject to “presumptively
lawful” restrictions as unprotected by the Second

24
Amendment. Id. at 101. In other words, prong one of
Marzzarella (whether conduct is protected by the Second
Amendment) should be applied with caution. Because we
could not be certain that the provision at issue in Marzzarella,
18 U.S.C. § 922(k), which prohibits possession of a firearm
with an obliterated serial number, regulated conduct not
protected by the Second Amendment, we declined to decide
the case on prong one. Id. at 94-95. However, because it is
clear to us that the allegations in Count Three fall outside the
scope of Second Amendment protection, we do not hesitate to
base our decision on prong one of Marzzarella in this case.

Our primary concern in Marzzarella was one of line-
drawing, specifically, whether a firearm with an obliterated
serial number was a “dangerous and unusual weapon.” 614
F.3d at 87, 94-95. Although the Court in Heller stated that
possession of “dangerous” firearms is not protected, it did not
define what constitutes a “dangerous” firearm. See 554 U.S.
at 627. In Marzzarella, we noted the difficulty in determining
whether a gun with an obliterated serial number was
“dangerous” or “unusual.” 614 F.3d at 101. On the one
hand, because an unmarked firearm is equally effective as a
marked firearm, thus giving law-abiding citizens no reason to
prefer the former over the latter, unmarked firearms “have
value primarily for persons seeking to use them for illicit
purposes.” Id. at 95 (citations omitted). On the other hand,
the absence of a serial number seems categorically different
than other “dangerous” characteristics, such as a sawed-off
barrel on a shotgun. Id. Although a sawed-off shotgun “is
dangerous and unusual in that its concealability fosters its use
in illicit activity, it is also dangerous and unusual because of
its heightened capability to cause damage.” Id. (citing United

25
States v. Amos, 501 F.3d 524, 532 (6th Cir. 2007)
(McKeague, J., dissenting)).

Huet‟s case presents no line-drawing problem.
Because § 922(g)(1) and § 2 do not restrict the right of
possession of the aider and abettor, Count Three simply does
not implicate Huet‟s rights under the Second Amendment.
Thus, unlike the restriction at issue in Marzzarella, we do not
have to broaden any of Heller‟s presumptively valid
categories to find that the conduct alleged in Count Three is
outside the scope of Second Amendment protection. See
Marzzarella, 614 F.3d at 101.

IV.

For the foregoing reasons, we will reverse the order of
the District Court granting Huet‟s motion to dismiss and
remand for further proceedings. We hold that: (1) Count
Three was sufficient to state an offense for aiding and
abetting a felon in possession under 18 U.S.C. § 922(g)(1)
and § 2; and (2) Count Three does not violate the Second
Amendment.

26