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
2

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 
3

knowingly aiding and abetting the possession of a firearm by 

a convicted felon, in violation of 18 U.S.C. § 922(g)(1)1and 

§ 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.”
4

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 Procedure3on 

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.”
5

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,4and 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.”
6

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.
7

“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 
8

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)). 
9

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 
10

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 
11

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 
12

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 factfinding 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.
13

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 
14

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.
15

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).
16

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 
17

[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 
18

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.
19

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.
20

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).
21

In United States v. Marzzarella, we articulated a twostep 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 asapplied attack is somewhat misleading. In contrast to a facial 
22

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.
23

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 properlybrought 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 
24

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 
25

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 linedrawing, 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 
26

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.