                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 15-1090
                         ___________________________

           Harris News Agency, Inc., doing business as Jim’s Hobbies

                        lllllllllllllllllllllPlaintiff - Appellant

                                           v.

 William L. Bowers, Deputy Assistant Director of Industry Operations Bureau of
                 Alcohol, Tobacco, Firearms and Explosives

                        lllllllllllllllllllllDefendant - Appellee
                                       ____________

                     Appeal from United States District Court
                     for the District of Nebraska - North Platte
                                   ____________

                          Submitted: November 18, 2015
                            Filed: December 22, 2015
                                  ____________

Before RILEY, Chief Judge, BEAM and KELLY, Circuit Judges.
                              ____________

RILEY, Chief Judge.

       Harris News Agency, Inc. (Harris News) applied for a federal license to sell
guns. William Bowers, the Director of Industry Operations for the Kansas City Field
Division of the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF),
denied the application on the ground that the Harris News officers and co-owners
willfully allowed a felon to possess firearms. The district court agreed. Because the
ATF did not show the Harris News officers and owners did anything to further the
felon’s possession of firearms, we reverse.

I.    BACKGROUND
      James Harris Sr. sold guns under a federal license at his store, Jim’s Hobbies,
in North Platte, Nebraska. James’s wife, Lois Harris, and their two sons, James
Harris Jr. and Brian Harris, worked with James Sr. at the store. Brian continued
working there after he was convicted of a felony in Nebraska state court in 1992. His
work included gunsmithing, which naturally involved handling guns.

       In 2011, the ATF investigated a tip about Brian working with guns. The
investigation eventually resulted in James Sr. pleading guilty to lying to an ATF
investigator about Brian possessing guns at the store. See 18 U.S.C. § 1001(a)(2).
Part of James Sr.’s plea deal was surrendering his firearms license. To “keep the
family business going,” Lois and James Jr. applied for a new license on behalf of
Harris News, a corporation in which they are the president and vice president,
respectively, and the only shareholders. They hoped to continue operating Jim’s
Hobbies, through Harris News, without James Sr.’s or Brian’s involvement.

       An applicant for a license to sell guns must not have “willfully violated any of
the provisions of [18 U.S.C. ch. 44].” 18 U.S.C. § 923(d)(1)(C). The ATF, after an
informal hearing, concluded Harris News willfully violated 18 U.S.C. § 922(g)(1)
(part of the covered chapter) and denied the Harris News application. Section
922(g)(1) forbids felons to possess guns. The ATF’s theory was that by working at
Jim’s Hobbies and “allowing” Brian to work with firearms and ammunition, Lois and
James Jr. also had become liable for Brian’s illegal possession under 18 U.S.C. § 2(a),
which makes anyone who “aids, abets, counsels, commands, induces or procures” the
commission of a federal crime “punishable as a principal.” See also United States v.
Roan Eagle, 867 F.2d 436, 445 (8th Cir. 1989) (“To be guilty of aiding and abetting
is to be guilty as if one were a principal of the underlying offense.”).

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       Harris News petitioned for “de novo judicial review” under 18 U.S.C.
§ 923(f)(3). On cross-motions for summary judgment, the district court ruled for the
ATF, concluding “substantial evidence supports a finding that James Harris, Jr.,
violated [18 U.S.C. ch. 44] by allowing his brother, a convicted felon, to possess
firearms at Jim’s Hobbies” and “also establishes that James, Jr. was plainly indifferent
to the unlawfulness of the situation, which is all that is required for a finding of
willfulness.” Harris News appeals. See 28 U.S.C. § 1291 (appellate jurisdiction).

II.    DISCUSSION
       We review de novo the grant of summary judgment. See, e.g., On Target
Sporting Goods, Inc. v. Attorney Gen. of the U.S., 472 F.3d 572, 575 (8th Cir. 2007).
If no material facts are in dispute, summary judgment is proper for the party entitled
to judgment as a matter of law. See Fed. R. Civ. P. 56(a).

       The crux of the ATF’s decision was that Lois and James Jr. violated 18 U.S.C.
§ 922(g)(1) by “allowing” Brian to possess guns at work. Yet allowing someone to
commit a crime—in the sense of simply not stopping it—is not the same as
committing it. See, e.g., Johnson v. United States, 195 F.2d 673, 675 (8th Cir. 1952)
(“[M]ere negative acquiescence is not sufficient [under 18 U.S.C. § 2(a)].”). To the
contrary, liability as a principal for aiding and abetting requires “some conduct of an
affirmative nature.” Id. “‘[A]iding and abetting’ . . . assumes some participation in
the criminal act in furtherance of the common design.” Id. The ATF failed to find
any such affirmative conduct. Nothing in the record suggests Lois or James Jr. gave
Brian guns, told customers to give him guns, directed him to work with guns, or did
anything else to further his possession of guns.1

      1
       At oral argument, the ATF claimed substantial evidence showed James Jr.
directed customers to Brian to have gunsmithing work done. In fact, the evidence
was that while both James Sr. and Brian were out of the store, James Jr. told an
undercover investigator who asked to have a scope mounted on his rifle that “the guy
who would [do the gunsmithing] would be back shortly.” According to the record,

                                          -3-
       The district court, for its part, recognized “[t]he [ATF] failed to explain how
Lois and James, Jr. actually ‘allowed’ Brian to possess firearms.” Nonetheless, the
district court found a “sufficient basis for concluding that James, Jr. aided and abetted
his brother in the unlawful possession of firearms” in the fact James Jr. was a
“manager” at Jim’s Hobbies. As a manager, the district court reasoned, James Jr.
presumably had supervisory authority over gun sales and services. Perhaps, but even
that would imply, at most, that James Jr. knew Brian handled guns and could have
stopped him, but did not, which is still no more than negative acquiescence.

       Absent a showing Lois and James Jr. affirmatively helped Brian possess guns
illegally, the aiding-and-abetting statute does not make them liable for Brian’s alleged
violations of 18 U.S.C. § 922(g)(1).2 We therefore do not reach the question of
whether Lois or James Jr. acted willfully. Nor do we consider Harris News’ appeal
from the denial of its motion to compel discovery.




that was the extent of James Jr.’s involvement. When James Sr. and Brian returned,
James Sr. approached the investigator, took his rifle, confirmed he wanted a scope
mounted, and gave the rifle to Brian to work on. In context, James Jr.’s telling a
purported customer to wait for another, unidentified worker, who obviously could
have been James Sr., does not rise to the level of affirmative participation required
for aiding-and-abetting liability. See Johnson, 195 F.2d at 675 (“As the term ‘aiding
and abetting’ implies, it assumes some participation in the criminal act in furtherance
of the common design.”).
      2
       Though Harris News does not raise the issue, we also note the record does not
show the guns Brian worked with were in or affecting interstate commerce—an
essential element of a violation of § 922(g)(1). See, e.g., United States v. Garcia-
Hernandez, 803 F.3d 994, 996 (8th Cir. 2015). If the ATF failed to establish Brian’s
possession violated § 922(g)(1) in the first place, it could not have treated Lois and
James Jr. as having broken the law by helping him, even if the ATF had shown some
affirmative assistance. Cf. Roan Eagle, 867 F.2d at 445.

                                          -4-
       We do reject the proposition—advanced by the ATF at oral argument and
perhaps implicit in its brief and also proposed by the district court’s
memorandum—that Lois and James Jr. willfully violated § 922(g)(1) as long as they
knew Brian was working with guns, knew it was illegal, and exhibited “plain
indifference to the unlawfulness going on.”3 That reasoning ignores the clear
requirement under 18 U.S.C. § 923(d)(1)(C) that “the applicant”—that is, Harris
News, through Lois or James Jr.—“willfully violated [§ 922(g)(1)].” (Emphasis
added). Section 923(d)(1)(C) does not target willfulness in the abstract; it requires
a specific act be done willfully, namely the violation of a federal gun law by a license
applicant. Brian possessing guns, by itself, was not a violation by Lois or James Jr.;
thus, Lois and James Jr. supposedly turning blind eyes to Brian’s illegal gun
possession cannot alone justify denying the Harris News application.

III.  CONCLUSION
      The ATF had no authority to deny the Harris News license application under
18 U.S.C. § 923(d)(1)(C). We reverse the entry of summary judgment in favor of the
ATF and remand the case to the district court with directions to enter summary
judgment in favor of Harris News.
                      ______________________________




       3
      Plain indifference to a known legal obligation constitutes willfulness for
purposes of § 923(d)(1)(C). See On Target Sporting Goods, 472 F.3d at 575.

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