            United States Court of Appeals
                       For the First Circuit


No. 15-1303

                      UNITED STATES OF AMERICA,

                              Appellee,

                                 v.

                            DARLENE FORD,

                        Defendant, Appellant.


            APPEAL FROM THE UNITED STATES DISTRICT COURT
                      FOR THE DISTRICT OF MAINE

          [Hon. John A. Woodcock, Jr., U.S. District Judge]


                               Before

                Thompson and Kayatta, Circuit Judges,
                  and Mastroianni,* District Judge.



     Steven Alan Feldman, with whom Feldman and Feldman was on
brief, for appellant.
     Margaret D. McGaughey, Assistant United States Attorney, with
whom Thomas E. Delahanty II, United States Attorney, was on brief,
for appellee.


                           April 13, 2016




     *   Of the District of Massachusetts, sitting by designation.
             KAYATTA, Circuit Judge.       The four members of the Ford

family ran an illicit, indoor marijuana farm, for which they have

all   been   sentenced   to   prison.      This   appeal   by   Darlene   Ford

primarily concerns not the marijuana, but rather Darlene's semi-

automatic rifle, which she allowed her husband, James F. Ford, to

use for target practice.        James's possession of a firearm was a

crime because he had previously been convicted of a criminal

offense "punishable by imprisonment for a term exceeding one year."

18 U.S.C. §§ 922(g)(1), 924(a)(2).         Relying on the criminal code's

general aiding and abetting provision, 18 U.S.C. § 2 ("section

2"), the government indicted Darlene for, among other crimes,

letting James possess the rifle.           Over Darlene's objection, the

trial court instructed the jury that it could convict Darlene if

she "knew or had reason to know" that James had previously been

convicted of a crime punishable by more than one year in prison.

After the jury convicted her of the aiding and abetting charge,

and also of conspiring in the family's illicit marijuana growing

operation and of maintaining a drug-involved residence, Darlene

appealed.     In a case of first impression, we find that the jury

should not have been allowed to convict Darlene of aiding and

abetting James's unlawful possession of a firearm merely because

she "had reason to know" that James had previously been convicted




                                   - 2 -
of a crime punishable by more than a year in prison.      We otherwise

reject Darlene's challenges to her conviction and sentence.

                            I.   Background

            Maine drug enforcement officers executed a warrant to

search the Fords' home in Monroe, Maine, on November 15, 2011.         In

the home at the time were Darlene, her husband James, and their

adult sons Jim and Paul.1        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 semi-automatic rifles, various firearm parts,

and a video of James holding and firing one of the rifles at a

firing range as Darlene narrates.

            The United States subsequently indicted the four family

members on various drug and firearms charges.        Sons Paul and Jim

pled guilty of, among other crimes, conspiring with their parents

to manufacture 100 or more marijuana plants.         They are serving

prison sentences of 46 and 60 months, respectively.      United States

v. Ford, No. 14-1669, slip op. at 2 (1st Cir. Aug. 19, 2015)

(unpublished) (Paul); United States v. Ford, No. 1:12-cr-00163-



     1 In order to avoid confusion in referring to four people with
the same last name, we refer to the members of the Ford family by
their given names, see, e.g., United States v. Serunjogi, 767 F.3d
132, 135 n.1 (1st Cir. 2014), and we refer to Darlene's husband as
"James" and to her son as "Jim."

                                 - 3 -
JAW-2 (D. Me. June 03, 2013), ECF No. 143 (Jim).           After a jury

trial, husband James was convicted of conspiring with his sons and

wife to manufacture 100 or more marijuana plants; of manufacturing

100   or   more   marijuana   plants;   of   maintaining   drug-involved

residences; and of being a felon in possession of a firearm.

United States v. Ford, No. 1:12-cr-00163-JAW-1 (D. Me. Nov. 24,

2014), ECF No. 400.    That conviction is the subject of a separate

pending appeal before this court, United States v. Ford, No. 14-

2245 (1st Cir.).

            Darlene was tried separately from her husband. Her first

trial ended when the jury deadlocked.        A second trial resulted in

a jury verdict convicting Darlene of conspiring to manufacture 100

or more marijuana plants, in violation of 21 U.S.C. §§ 841(a)(1)

and 846; of maintaining a drug-involved residence, in violation of

21 U.S.C. § 856(a)(1) and 18 U.S.C. § 2; and of 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).      Darlene now appeals her conviction on

the aiding and abetting count, plus her sentence: seventy-eight

months in prison on each count, to run concurrently, followed by

three years of supervised release on each count, also to run

concurrently.

            Darlene concedes that she purchased two assault rifles

found by agents at her Monroe home, and that James used one of the



                                  - 4 -
rifles at least once in her presence.              In short, it is plain that

she aided his possession of a firearm.                  Also not disputed is the

government's proof that five to seven years before Darlene aided

him   in   possessing       the   firearm,2     James    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.                     What was

contested at trial on the aiding and abetting count was Darlene's

knowledge of those convictions.

               The evidence to which the government points us on the

details of James's 2004 convictions is skimpy.                   It does not reveal

how many times James appeared at the courthouse, whether he ever

served     a   day     in   custody,    or    what,     if     any,    conditions   or

probationary restrictions were imposed on him as a result of the

conviction.          Nor does that evidence reflect any involvement by

Darlene in any appearance, meeting, or communication concerning

the 2004 prosecution.

               The    government's     evidence    trained,       instead,    on    the

circumstances that gave rise to the 2004 charges.                      Massachusetts

State Trooper James Bruce ("Bruce") testified that on October 11,


      2The Superseding Indictment alleged that Darlene had aided
and abetted James's possession of a firearm "[o]n [or] about
October 16, 2009 and November 15, 2011."

                                        - 5 -
2002, he conducted searches at what were then the Fords' two

residences in Wakefield, Massachusetts: 2 and 5 Fellsmere Avenue

("No.   2"   and    "No.     5,"    respectively).      No.    2   was     the   voter

registration address for Paul and Jim, and No. 5 was the voter

registration       address    for    Darlene    and   James.       Bruce    recalled

substantial marijuana growing operations in both No. 2 and No. 5.

He mentioned the "overpowering" smell of marijuana in both homes,

the presence of marijuana plants in various stages of growth, and

the discovery of other marijuana-related paraphernalia.

             While police were searching No. 2 in 2002, a car pulled

up to No. 5, and Bruce saw "[a] man, a woman, and a younger man"

emerge from the vehicle.             The woman and the younger man walked

into No. 5, while the older man, James, walked over to the officers

at No. 2.      Bruce testified that he "believed the woman to be"

Darlene because he had seen her driver's license photograph prior

to conducting the search.             Darlene's counsel questioned Bruce's

knowledge and whether he was certain in 2011 that the woman at the

scene he observed in 2002 was Darlene.

             Darlene took the stand in her own defense. She testified

that on October 11, 2002, she was at work from 12:00 to 9:00 PM

and that she had never seen Trooper Bruce before the trial in this

case.   At the beginning of her direct examination, she said that

she first heard about the search of her residence (No. 5) on the



                                        - 6 -
evening of the search.          She then recanted, claiming that she did

not learn about the search until nine years later, when the Maine

prosecution began.       She further claimed that she did not know that

her husband had been arrested in 2002 in connection with the

search, that she did not learn about his Massachusetts conviction

until "this [Maine] case started unfolding," and that she therefore

did not know at the time the video was taken that her husband had

a prior conviction or was prohibited from possessing a firearm.

Although she knew that she and her husband had transferred No. 2

to    the   Commonwealth       of   Massachusetts     pursuant    to    a   civil

forfeiture, she claimed to have believed that the reason was to

keep her son Paul out of jail, not because of any conviction or

charges related to her husband.

             Closing arguments at Darlene's trial highlighted the

parties' competing views of the state of mind the government needed

to prove to convict Darlene of aiding and abetting James's crime.

Defense counsel stressed that Darlene did not actually know about

her   husband's     prior   felony    conviction,     while    the     government

emphasized    the   ample      circumstantial   evidence       suggesting    that

Darlene     "knew   or   had    reason   to   know"    about     James's    prior

conviction.

             A good portion of the charge conference focused on the

state of mind instruction for the aiding and abetting count.                  In



                                      - 7 -
relevant part, the government argued that it need only prove that

Darlene "knew or had reason to know" that James had been convicted

of a crime classified as a felony under federal law.               Darlene's

counsel objected to inclusion of the phrase "or had reason to know"

in the jury instructions.    After a recess for research, the trial

court determined that there was no direct precedent on point in

this circuit.   It fairly noted, though, that decisions in other

circuits seemed to support the government.            Acknowledging that

"we're sort of flying without guidance," the trial court accepted

the government's position over objection, telling the jury that it

needed to find that Darlene:

          knew or had reason to know that James F. Ford
          had been convicted in any court of at least
          one crime classified as a felony under federal
          law; and, . . . , that Darlene Ford consciously
          shared James F. Ford's knowledge that he
          possessed one or more -- one or both of the
          firearms, intended to help him possess it, and
          took part in the endeavor, seeking to make it
          succeed.    The government does not have to
          prove that James F. Ford or Darlene Ford knew
          their conduct was illegal.


                            II.    Analysis

A.   Jury Instructions for        Aiding      and   Abetting   a     Felon's
     Possession of a Firearm

     1.   Standard of Review

          We review de novo Darlene's preserved argument that the

instructions omitted or materially altered the elements of an


                                  - 8 -
offense.    United States v. Godin, 534 F.3d 51, 56 (1st Cir. 2008).3

If we conclude that the district court instructed the jury in

error, we must then determine whether the error was harmless.             Id.

at 61.     If not, "we vacate the conviction and remand for a new

trial."    Id.     A jury instruction error is not harmless if "the

record contains evidence that could rationally lead to a contrary

finding" in the absence of the error.          Id. (quoting United States

v. Baldyga, 233 F.3d 674, 682 (1st. Cir. 2000)).

     2.     Scienter

            We begin with Congress's words:          "[w]hoever commits an

offense    against   the   United    States   or   aids,   abets,    counsels,

commands, induces or procures its commission, is punishable as a

principal."      18 U.S.C. § 2(a).    Nothing in this language expressly

addresses the state of mind that a person need possess in order to

be guilty of aiding and abetting the commission of a crime.                In

the presence of such silence, we turn to a line of Supreme Court

"cases     interpreting    criminal     statutes     to    include     broadly

applicable scienter requirements, even where the statute by its



     3 By contrast, we review properly preserved objections to "the
form and wording" of a district court instruction for abuse of
discretion. United States v. Gonzalez, 570 F.3d 16, 21 (1st Cir.
2009) (quoting United States v. McFarlane, 491 F.3d 53, 59 (1st
Cir. 2007)).    And we similarly review for abuse of discretion
(under a three-part test) a district court's determination that an
ancillary instruction requested by a defendant should have been
added to the otherwise generally required instructions. United
States v. González-Pérez, 778 F.3d 3, 15 (1st Cir. 2015).

                                     - 9 -
terms does not contain them."            United States v. X-Citement Video,

Inc., 513 U.S. 64, 70 (1994).           Beginning with Morissette v. United

States,    342    U.S.     246,   250   (1952),         these    cases    establish   a

"background presumption," X-Citement Video, Inc., 513 U.S. at 70,

"in favor of a scienter requirement [that applies] to each of the

statutory elements that criminalize otherwise innocent conduct,"

id. at 72.       That scienter requirement, absent some indication to

the contrary, requires that the government prove the existence of

some mens rea.       United States v. U.S. Gypsum Co., 438 U.S. 422,

436 (1978) (recognizing that "[t]he existence of a mens rea is the

rule of, rather than the exception to, the principles of Anglo-

American     criminal       jurisprudence")            (alteration       in   original)

(quoting Dennis v. United States, 341 U.S. 494, 500 (1951) (opinion

of   Vinson,     C.J.)).      Proof     of   a    mens    rea,    as   conventionally

understood, requires proof "that the defendant know the facts that

make his conduct illegal."              Staples v. United States, 511 U.S.

600, 605 (1994).         This requirement that "the defendant know the

facts     that    make     his    conduct        fit     the    definition     of   the

offense . . . is reflected in the maxim ignorantia facti excusat."

Id. at 608 n.3.          In this respect, the law seeks to align its




                                        - 10 -
punitive force with the "ability and duty of the normal individual

to choose between good and evil."       Morissette, 342 U.S. at 250.

           This long-standing rule of statutory interpretation may

be overborne by "some indication of congressional intent, express

or implied, . . . to dispense with mens rea as an element of a

crime."   Staples, 511 U.S. at 606 (italics omitted).        So, properly

framed, the question here is whether we find in the general aiding

and abetting statute any such indication, express or implied, that

Congress intended that we imprison a person even if that person

did not know all the facts that are necessary to classify the

principal's behavior as criminal.

           As   we   have   already   observed,   nothing   in   section   2

provides any such express indication. And when we look for implied

indications in Congress's words, we find that they point in favor

of the background presumption.        The words "aids, abets, counsels,

commands, induces or procures" all suggest that a person violates

section 2 only if the person has "chosen, with full knowledge, to

participate in the illegal scheme."         Rosemond v. United States,

134 S. Ct. 1240, 1250 (2014).         This choice, which the Rosemond

Court described as a "moral" choice, id. at 1249, can hardly be

presented as such if one does not know the very facts that




                                  - 11 -
distinguish the behavior in question from that which is perfectly

innocent.

            Our own circuit precedent in construing section 2 points

firmly in the same direction.           In United States v. Tarr, 589 F.2d

55 (1st Cir. 1978), we held that a person could not be held

criminally liable under section 2 for aiding and abetting persons

engaged in the business of dealing in firearms even though the

defendant sold the principals a gun illegally and even though the

principals    were   in    fact   engaged       in   the    business   of   dealing

firearms, id. at 58–60.           Rather, the defendant could only be

convicted if he "knew that [the principals] were engaged in the

business of dealing in firearms, which is one of the elements of

the [underlying] crime charged."           Id. at 60.

            More recently (and after the trial of this case), in

United States v. Encarnación-Ruiz, 787 F.3d 581 (1st Cir. 2015),

we considered whether a defendant could be liable under section 2

for aiding and abetting the production of child pornography if he

did   not   know   the    key   fact    that    turned      the   otherwise   legal

production of pornography into a crime, i.e., that the person

depicted was a minor, id. at 583–84.                       Applying Rosemond, we

reasoned that "to establish the mens rea required to aid and abet

a crime, the government must prove that the defendant participated

with advance knowledge of the elements that constitute the charged



                                       - 12 -
offense."    Id. at 588.    Therefore, because "[p]roducing child

pornography is illegal precisely because the person in the visual

depiction [is] a minor[,] [i]f an individual charged as an aider

and abettor is unaware that the victim was underage, he cannot

'wish[] to bring about' such criminal conduct and 'seek . . . to

make it succeed.'"    Id. at 588 (quoting Rosemond, 134 S. Ct. at

1248).   We emphasized that aiding and abetting is premised on a

finding of "fault," and that under general principles of accomplice

liability, there can be no liability without fault.     Id. at 589.

To be at "fault" in aiding and abetting a violation of the child

pornography statute, one must know the victim was a minor, even if

the principal does not also have to know.

            Similarly, but for James's criminal history, there would

have been no gun possession crime under section 922(g)(1).   Hence,

if Darlene was not aware of that history, she could not have acted

with the requisite criminal purpose.     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 breadth of section 2 reinforces our conclusion.

While certain crimes that the Supreme Court has termed "public

welfare" or "regulatory" offenses can be construed as implicitly



                               - 13 -
eschewing a mens rea as an element, see generally Staples, 511

U.S. at 606–07 (discussing examples of such), section 2 applies

uniformly to the aiding and abetting of all federal crimes, very

many of which indisputably are not public welfare or regulatory

offenses.   Section 2 also expressly tracks the penalties available

for the underlying crimes, in this instance a prison sentence of

up to 10 years.    18 U.S.C. § 924(a)(2).   The exposure to such a

sentence buttresses the case for reading into section 2 the

traditional background presumption of scienter as a necessary

element of the offense.    See Staples, 511 U.S. at 618 (eschewing

a mens rea requirement "hardly seems apt . . . for a crime that is

a felony . . . .    After all, 'felony' is . . . 'as bad a word as

you can give to man or thing.'" (quoting Morissette, 342 U.S. at

260)).

            A simple way to illustrate the common sense in finding

section 2 to contain as an element the ordinary form of a mens rea

is to consider the firearm element of the underlying crime here at

issue. Suppose "Joe," a convicted felon, asks his neighbor "Sally"

whether he may borrow her suitcase for a trip, and Sally agrees,

forgetting that she left in the suitcase a handgun that Joe then

finds and uses.    Few would think that Sally would be guilty of

aiding and abetting the possession of a firearm by a felon merely

because she "had reason to know" that the handgun was in the



                               - 14 -
suitcase.         Instead,     we     would   expect    Sally--as       an    aider    and

abettor--actually to know the essential circumstance that makes

Joe's conduct criminal.               See Rosemond, 134 S. Ct. at 1248-49

(noting that the intent requirement of section 2 is "satisfied

when a person actively participates in a criminal venture with

full   knowledge     of    the      circumstances      constituting         the   charged

offense").        And if she need know that there was a gun in her

suitcase in order to be convicted of aiding and abetting, one would

think that she would also need to know the other fact essential to

labeling Joe's conduct criminal; i.e., that he had been convicted

of a crime punishable by more than a year in prison.

            This is not to say that a conviction under section 2

requires that the aider and abettor know that the principal's

conduct   is      unlawful.         Customarily,       the    mens    rea    element    is

satisfied if the defendant "know[s] the facts that make his conduct

fit the definition of the offense."                  Staples, 511 U.S. at 607 n.3

(citing     the    maxim       ignorantia     facti     excusat).            Conversely,

ignorance that the known facts constitute a crime provides no

defense, except perhaps in extremely rare cases in which the

defendant has "such insufficient notice [of the law] that it

[falls] outside the bounds of due process,"                          United States v.

Denis,    297     F.3d   25,     29   (1st    Cir.    2002)    (citing       Lambert    v.

California, 355 U.S. 225, 229–30 (1957)), or when Congress has



                                         - 15 -
dictated otherwise, Ratzlaf v. United States, 510 U.S. 135, 149

(1994) (noting an exception to the "venerable principle that

ignorance of the law generally is no defense" when Congress has

"decree[d] otherwise");   Cheek v. United States, 498 U.S. 192,

201–02 (1991) (holding that, for the purposes of complex criminal

tax laws requiring specific intent and willfulness, the government

must prove that the defendant knew of his legal duty).    Thus, if

Darlene knew that James had previously been convicted of a crime

punishable by more than a year, she would be liable for knowingly

giving him a firearm even if she did not know that the law declared

his possession to be criminal.

          We are aware that the Ninth Circuit ruled in 1993 that

a person may be liable for aiding and abetting the possession of

a firearm in violation of section 922(g)(1) without any knowledge

at all that the principal was previously convicted of a crime

punishable by more than a year.   United States v. Canon, 993 F.2d

1439, 1442 (9th Cir. 1993).   Canon opined that the government need

not show that the principal knew he had been convicted of such a

crime, hence there should be no need to show that the aider and

abettor was aware of the conviction. Id. The Ninth Circuit itself

has since expressed "serious reservations regarding the soundness"




                               - 16 -
of that reasoning.     United States v. Graves, 143 F.3d 1185, 1188

n.3 (9th Cir. 1998).

          We share such reservations regarding the first part of

Canon's reasoning, and disagree with the second part. First, while

those circuits to have addressed the question of the required state

of mind for the principal have affirmed Canon's assumption that

the government need not show that the principal knew that he had

been convicted of a crime punishable by more than a year,4 a good

argument can be made that the government actually does need to

prove, in a case against the principal under section 922(g)(1),

the principal's knowledge of his prior conviction.      See 18 U.S.C.

§   924(a)(2)   (providing   penalties   for   "knowingly"   violating




     4 United States v. Games-Perez, 667 F.3d 1136, 1140 (10th Cir.
2012); United States v. Olender, 338 F.3d 629, 637 (6th Cir. 2003);
United States v. Kind, 194 F.3d 900, 907 (8th Cir. 1999); United
States v. Jackson, 120 F.3d 1226, 1229 (11th Cir. 1997) (per
curiam); United States v. Langley, 62 F.3d 602, 605–06 (4th Cir.
1995)(per curiam); United States v. Burke, 888 F.2d 862, 867 n.7
(D.C. Cir. 1989); United States v. Dancy, 861 F.2d 77, 81–82 (5th
Cir. 1988)(per curiam). Although this circuit's decision in United
States v. Smith, 940 F.2d 710 (1st Cir. 1991), has been cited as
standing for the proposition that the government need not prove
the principal knew he was a felon, Smith's holding actually held
it was unnecessary for the government to prove the defendant's
knowledge of the law itself, i.e., ignorance of the law is no
excuse.   Id. at 717 ("The government need only prove that [the
defendant] knew he possessed the firearms, not that he understood
that such possession was illegal."). The principal's knowledge of
his felony status was not at issue.           Id. at 713 ("Smith
argues . . . that a jury might find that he had mistakenly believed
he could legally possess firearms, notwithstanding the fact that
he was a convicted felon.").

                                - 17 -
section 922(g)).         See generally United States v. Langley, 62 F.3d

602, 608–19 (4th Cir. 1995)(en banc)(Phillips, J., concurring and

dissenting) (disagreeing with the majority and concluding that the

"knowingly" requirement of 18 U.S.C. § 924(a)(2), applicable to

§ 922(g)(1), requires "proof that the accused knew at the critical

time charged that he 'ha[d] been convicted in any court of a crime

punishable    by    imprisonment        for   a   term   exceeding    one   year.'"

(alteration in original) (quoting 18 U.S.C. § 922(g)(1)).

             Second--and this is the point on which we rely--as in

Encarnación,       we    reject   the    notion     that   the   state      of   mind

requirement of section 2 is a chameleon, simply taking on the state

of mind requirements of whatever underlying crime is aided and

abetted.     See Encarnación, 787 F.3d at 589.               We read the words

"punishable as a principal" to refer to the penalties available to

one who is guilty of aiding and abetting a crime, not to define by

incorporation a reduced scienter requirement for determining guilt

in the first instance.         In too many instances, the principal will

be in a superior position both to know the facts and to know

whether his or her conduct is regulated for the protection of the

public welfare.         With the principal's crime here, for example, the

felon presumably knows that he was convicted of some crime, and

that the conviction has continuing ramifications.                    Indeed, given

modern rules of criminal procedure, such as guilty plea and



                                        - 18 -
sentencing procedures, James was presumably told that he was

convicted of a crime punishable by a year or more in prison.                   See,

e.g., Fed. R. Crim. P. 11(b)(1)(H) (requiring federal courts,

before accepting a guilty plea, to inform the defendant and

determine that he understands "any maximum possible penalty" of

the   offense);       Mass.   R.    Crim.     P.     12(c)(3)(A)(ii)      (same).

Conversely, if another person has no idea that the principal has

been convicted of a serious crime, there is no reason that other

person can be presumed to know that possession of a firearm may be

problematic.       Staples, in turn, tells us that this country's "long

tradition    of      widespread     lawful     gun     ownership    by    private

individuals" precludes any rejection of the background scienter

presumption merely because the defendant knows that a firearm is

involved.    511 U.S. at 610.

            In any event, the government in this case does not need

to rely on Canon's strict liability interpretation.                 Rather, the

government need only defend the district court's "know or had

reason to know" formulation.          To do so, the government turns to

another 1993 opinion, United States v. Xavier, 2 F.3d 1281 (3d

Cir. 1993), stating that the government need prove that the aider

and abettor "knew or had cause to believe" that the principal had

been convicted of a crime punishable by more than a year in prison,

id.   at   1287.      Two   other   circuits    have    arrived    at    the   same



                                     - 19 -
conclusion as Xavier without adding to its analysis. United States

v. Samuels, 521 F.3d 804, 812 (7th Cir. 2008) ("[T]o aid and abet

a felon in possession of a firearm, the defendant must know or

have reason to know that the individual is a felon at the time of

the aiding and abetting . . . ."); United States v. Gardner, 488

F.3d 700, 715 (6th Cir. 2007) (agreeing with the Third Circuit's

"well-reasoned"     decision   in   Xavier).   We   reject   Xavier's

formulation of the scienter requirement for three reasons.

          First, Xavier and its progeny were not presented with

the precise question now before us: whether the government must

prove knowledge or whether proof of "reason to know" is sufficient.

In Xavier and Gardner,5 for example, the courts grappled with the

choice between a combined "know or reason to know" standard and

strict liability.    Gardner, 488 F.3d at 714 (noting that the Sixth

Circuit had "yet to decide" whether there must be proof that the

aider and abettor knew or should have known that the principal was


     5 In Samuels, the defendant did not contest his knowledge of
the principal's prior conviction, but rather he claimed there was
insufficient evidence proving that he was actually the individual
who transferred the firearm to the principal. In its discussion,
however, the Seventh Circuit simply stated, without further
analysis, that the aider and abettor "must know or have reason to
know that the individual is a felon at the time of the aiding and
abetting." Samuels, 521 F.3d at 812 (noting that the defendant
did "not challenge the sufficiency of the evidence as it relates
to [the principal] being a prior convicted felon who possessed a
firearm that traveled in interstate commerce," but rather only
challenged a witness's "testimony about whether [the witness] saw
[the defendant] hand [the principal] the gun").

                                - 20 -
a convicted felon or whether strict liability was proper); Xavier,

2 F.3d at 1286 (rejecting the notion that a conviction for aiding

and abetting a violation of § 922(g)(1) can stand without requiring

proof of the aider and abettor's knowledge or reason to know of

the principal's status).   It appears that no court has squarely

decided the question we now answer,6 and the "circuit split"

referenced by the district court and the parties refers only to a

disagreement between whether the government "ha[s] to prove knew

or had reason to know or nothing at all in terms of knowledge."

          Second, having "reason to know" suggests a negligence

standard. Cf. Restatement (Third) of Torts: Liability for Physical



     6 There are two unpublished cases, one from the Fourth Circuit
and one from the Eleventh Circuit, finding no plain error in a
court's refusal to require that the jury find that the aider and
abettor had actual knowledge of the prior conviction. While these
cases are informative, they are not directly on point given the
deferential standard of review applied by these two courts. United
States   v.   Cox,   591   F.   App'x   181,   185–86   (4th   Cir.
2014)(unpublished); United States v. Lesure, 262 F. App'x 135,
141–43 (11th Cir. 2008)(unpublished per curiam).       Both courts
concluded that given the lack of controlling precedent on this
issue, it was not plain error for the court to deny the defendant's
request for a jury instruction requiring the aider and abettor's
actual knowledge of the principal's past conviction. Cox, 591 F.
App'x at 186 ("In the absence of controlling precedent and in view
of the inconsistent holdings of other circuits, we cannot conclude
that any error in failing to grant Cox's requested instruction was
plain."); Lesure, 262 F. App'x at 142 ("Given the applicable
standard of review, it is notable to observe at the outset that
'[w]hen neither the Supreme Court nor [we have] resolved an issue,
and other circuits are split on it, there can be no plain error in
regard to that issue.'" (alterations in original) (quoting United
States v. Evans, 478 F.3d 1332, 1338 (11th Cir.), cert. denied,
552 U.S. 910 (2007)).

                              - 21 -
and Emotional Harm § 3 cmt. g (2010) (negligence concerns "what

the actor 'should have known'").                 That formulation therefore

materially deviates from the traditional mens rea formulation

"that the defendant know the facts that make his conduct illegal."

Staples, 511 U.S. at 605.       Or, as we said in Tarr, for a "defendant

to be an aider and abettor [she] must know that the activity

condemned by the law is actually occurring."                   589 F.2d at 59

(quoting United States v. McDaniel, 545 F.2d 642, 644 (9th Cir.

1976)).    Under the "have reason to know" alternative, a jury might

well convict one who was merely negligent in failing to know.

              Third, we reject Xavier's formulation because it rests

on the faulty and unstated assumption that the absence of any

express scienter requirement in section 2 or in section 922(g)(1)

suggests that scienter is not generally an element of a section 2

offense.      Perhaps because Xavier was decided before X-Citement

Video   and    Staples,   the   Xavier     court    entirely   overlooked   the

background scienter presumption that must inform our reading of

section 2.      That oversight then led the Xavier court to perceive

an   anomaly,    which    we   summarize    as     follows:    (1)   18   U.S.C.

§ 922(d)(1) directly addresses the sale or disposing of a firearm

to a felon, imposing criminal liability on the purveyor if he or

she "know[s] or ha[s] reasonable cause to believe" that the

recipient "has been convicted in any court of, a crime punishable



                                    - 22 -
by imprisonment for a term exceeding one year"; (2) every sale or

disposing of a firearm to a felon can be described as aiding and

abetting     a   felon's   possession    of   the   firearm;    therefore,

(3) "[a]llowing aider and abettor liability under § 922(g)(1),

without requiring proof of knowledge or reason to know of the

possessor's status, would effectively circumvent the knowledge

element in § 922(d)(1)."       Xavier, 2 F.3d at 1286.         In order to

prevent such a circumvention, the court read into section 2 a

knowledge    requirement   paralleling    the   requirement    of   section

922(d)(1).

             In sum, by overlooking the background presumption of

scienter that should inform any reading of section 2, the Xavier

court perceived a problem that did not exist, and then adopted for

aiders and abettors a watered-down scienter requirement applicable

when the government chooses to allege that the person violated

section 922(d)(1) by selling or "otherwise dispos[ing] of any

firearm" to a felon, which the Xavier court did not appear to

realize actually reduced the requirement that was already in the

statute implicitly.7

             Notwithstanding Xavier and its progeny, we therefore

adhere to our view that, in order to establish criminal liability


     7 Here, the government did not charge Darlene with violating
section 922(d)(1).     It instead pursued aiding and abetting
liability via section 2 and section 922(g)(1).

                                 - 23 -
under 18 U.S.C. § 2 for aiding and abetting criminal behavior, and

subject to several caveats we will next address, the government

need prove beyond a reasonable doubt that the putative aider and

abettor knew the facts that make the principal's conduct criminal.

In this case, that means that the government must prove that

Darlene knew that James had previously been convicted of a crime

punishable by more than a year in prison.     Having so concluded,

and before turning to consider the effect of this holding on this

appeal, we add several important caveats.

          First, the element of the principal's crime at issue in

this case--his prior conviction--is an element that is essential

to labeling as criminal, even wrongful, the principal's behavior.

Were we confronted, instead, with an element of the crime that was

required, for example, only to establish federal jurisdiction to

punish behavior that was in any event unlawful, we might well reach

a different answer.   Cf. United States v. Feola, 420 U.S. 671,

694–96 (1975) (one who conspires to assault a person who turns out

to be a federal officer may, in the case of an actual assault, be

convicted without proof that he knew the federal status of the

victim); see also United States v. Gendron, 18 F.3d 955, 958 (1st

Cir. 1994) (noting that "courts normally hold that the prosecutor




                              - 24 -
need       not   prove   the   defendant's   state   of   mind   in   respect   to

'jurisdictional facts'").

                 Second, when the government is required to prove that a

defendant knew a fact, the court may give a "willful blindness"

instruction, which is warranted if "(1) the defendant claims lack

of knowledge; (2) the evidence would support an inference that the

defendant consciously engaged in a course of deliberate ignorance;

and (3) the proposed instruction, as a whole, could not lead the

jury to conclude that an inference of knowledge [is] mandatory."

United States v. Gabriele, 63 F.3d 61, 66 (1st Cir. 1995).8

Evidence sufficient to meet requirement (2) can include evidence

that the defendant was confronted with "red flags" but nevertheless

said, "I don't want to know what they mean."               Id.

                 Third, if the government does prove what it need not

prove--that Darlene knew that the law barred James from possessing

a gun--then it need not also prove that she was aware that he had




       8
       In fact, the court gave a "willful blindness" instruction
on the knowledge required for Count 3 of Darlene's conviction,
which involved 21 U.S.C. § 856(a)(1), which prohibits a person
from "knowingly" maintaining a place "for the purpose of
manufacturing, distributing, or using any controlled substance."
Because the statute itself includes the term "knowingly," the court
instructed the jury that "[f]or the purposes of Count 3 only, the
law allows the government to prove knowledge by proving that
Darlene Ford was willfully blind to a fact." It explicitly stated,
however, that "[t]his means of proving Ms. Ford's knowledge is
applicable only to Count 3 and must not be applied to either Count
1 or Count 6."

                                      - 25 -
been previously convicted of a crime punishable by more than a

year in prison.    When a person actually knows that the conduct she

proceeds to aid and abet is unlawful, she acts with specific intent

to aid or abet a crime.      Cf. Cheek, 498 U.S. at 199–200 (discussing

the requirement, under certain tax laws, that the government prove

the defendant's specific intent to violate the law, which requires

showing the defendant's knowledge of the legal duty).                "[I]f the

Government proves actual knowledge of the pertinent legal duty,

the   prosecution,   without     more,    has     satisfied    the   knowledge

component" and has shown that the defendant acted willfully.               Id.

at 202.   Thus, if the government proves the defendant's knowledge

of the legal duty itself, it need not also prove the lesser degree

of culpability that would otherwise need to be shown in the absence

of such knowledge.       See Model Penal Code § 2.02(5) and explanatory

note (stating that § 2.02(5) "makes it unnecessary to state in the

definition of an offense that the defendant can be convicted if it

is proved that he was more culpable than the definition of the

offense requires").        This conclusion is logical, because when a

defendant knows her conduct is unlawful, "[t]here is . . . no risk

of    unfairness   [or    criminalizing     the    innocent]    because    the

defendant 'knows from the very outset that his planned course of




                                   - 26 -
conduct is wrongful.'"            United States v. Burwell, 690 F.3d 500,

507 (D.C. Cir. 2012) (en banc) (quoting Feola, 420 U.S. at 685).

             Fourth,     direct    proof   of    knowledge   is   not     required.

"[T]he   government's      proof     may   lay   entirely    in   circumstantial

evidence."     United States v. Valerio, 48 F.3d 58, 63 (1st Cir.

1995)(emphasis in original).          Here, for example, viewed in a light

favorable     to   the    government,      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

Darlene had the required mens rea.                 That evidence would have

allowed a jury to find that:          James and Darlene lived together for

decades, during which time James shared with Darlene the details

of the family's drug operations both in Massachusetts and Maine

(indeed, she was actively involved in the Maine operation at

least); James was arrested and thereafter accused and convicted of

a serious crime while they lived together in Massachusetts; Darlene

lost her house in Massachusetts without any good reason to think

that the forfeiture was a product of her son's but not her

husband's criminal activity; James was interested in guns, kept

and adapted gun parts, and used the guns, yet Darlene alone bought

the gun that James used in the video; she was familiar with the

background check requirements, which included inquiry concerning

prior convictions; and her denials of various of these facts



                                      - 27 -
impeached her own credibility.      All of this is more than enough to

support a finding that Darlene had the requisite mens rea to be

guilty of aiding and abetting the firearms offense.9

      3.    Harmless Error

            Having concluded both that the trial court erred in

instructing the jury on the state of mind element of the aiding

and abetting offense, and that the evidence, when viewed favorably

to   the   government,   would   have   been   sufficient   to   support   a

conviction had a proper instruction been given, we turn now to

consider 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?        See Neder v. United States, 527 U.S. 1, 19

(1999); Baldyga, 233 F.3d at 682 (reviewing for plain error but

analyzing harmlessness in the same way as Neder).

            We think that the answer is plainly "no."              Darlene

testified, point blank, that she did not even know that James had


      9For this reason, we reject out-of-hand Darlene's contention
that the evidence was insufficient to support a conviction on the
aiding and abetting charge.

                                  - 28 -
been convicted of anything.        Issues of credibility are customarily

for the jury.    United States v. Cruz-Kuilan, 75 F.3d 59, 62 (1st

Cir. 1996).   Furthermore, the absence of evidence about the prior

criminal proceeding cuts against the government, as such evidence

presumably would have shown much about James's activities in

connection with the prior conviction and sentence that would have

shed light on the likelihood that his wife was unaware of the

conviction.    Did he spend any time in jail?            How often did he go

to court?    What exactly was the sentence?          What were the terms of

any probation?    All of these unanswered questions, cumulatively,

might well have caused a rational jury to have some reasonable

doubt about the government's case on this element.               Indeed, the

government    itself    concedes     that    the    evidence    on   Darlene's

knowledge presented a "credibility choice [that] was the jury's to

make."   We agree.     The error, therefore, was not harmless.

B.   Substantive Reasonableness of Darlene's Sentence

            We now turn to Darlene's challenge to the substantive

reasonableness of her sentence.

            At sentencing, the district court found a base offense

level of 22 and that three 2-level enhancements applied, for a

total offense level of 28: (1) a 2-level enhancement under U.S.S.G.

§ 2D1.1(b)(1) (possession of a dangerous weapon); (2) a 2-level

enhancement   because    Darlene     was    found   to   have   maintained   a



                                    - 29 -
residence     for    the     purposes      of   manufacturing      a   controlled

substance; and (3) a 2-level enhancement under U.S.S.G. § 3C1.1

for obstruction of justice.                The district court found that a

Guidelines range of 78 to 97 months applied and sentenced Darlene

to concurrent prison terms of 78 months for each of the three

counts on which she was convicted.                   Our decision to vacate the

conviction on one of those counts leaves untouched the district

court's sentence of 78 months on each of the other two counts, to

run concurrently.       Darlene challenges that remaining part of her

sentence as substantively unreasonable because the district court

said, at the sentencing hearing, that

            [I]f you had been smarter about this, in my
            view, and you had either not testified falsely
            or alternatively looked at yourself hard in
            the mirror and said, I am going to follow my
            sons and not my husband, I won't go to trial
            on this, you would have been looking at a much
            lower guideline range.

            "We     employ    the    abuse      of    discretion   standard"   in

considering challenges to the substantive reasonableness of a

sentence.     United States v. Ayala-Vazquez, 751 F.3d 1, 29 (1st

Cir. 2014).

            Darlene     argues      that     the     district   court's   remarks

constituted an improper and indefensible rationale for selecting

the bottom of the Guidelines range sentence, rather than an even

lower sentence like those her sons received when they pled guilty.


                                      - 30 -
As support for this argument, Darlene says that she could not have

avoided a trial because the government never offered her a plea

deal.   Therefore, reasons Darlene, she was "punish[ed] . . . for

going to trial, when, in fact, she had no other option."

          Darlene plainly had another option:      she could have

entered a straight plea of guilty under Federal Rule of Criminal

Procedure 11(a).    See also United States v. Pulido, 566 F.3d 52,

55 (1st Cir. 2009) (referring to a "straight up plea" as one in

which the defendant pleads guilty on his own initiative rather

than "pleading with a plea agreement with the government").    Had

she done so, she might have had a shot at a reduction in her

Guidelines sentencing range for acceptance of responsibility,

U.S.S.G. § 3E1.1, and she would have had no occasion to appall the

trial judge with testimony that he found to contain repeated lying,

which resulted in an enhancement for obstruction of justice under

U.S.S.G. § 3C1.1.    Given that she did not pursue that available

option, she has no basis to complain that she did not benefit from

the court's discretion to incarcerate for shorter periods those

who do accept responsibility and demonstrate truthfulness.    See,

e.g., United States v. García-Pagán, 804 F.3d 121, 125 (1st Cir.

2015), petition for cert. filed, 15-8711 (U.S. filed Mar. 18,

2016); United States v. Alejandro-Montañez, 778 F.3d 352, 360-61

(1st Cir. 2015); United States v. Castro-Caicedo, 775 F.3d 93, 103



                               - 31 -
(1st Cir. 2014); United States v. Brum, 948 F.2d 817, 819–20 (1st

Cir. 1991).    Accordingly, the district court's observation that

Darlene was unwise to have foregone any possibility of such

dispensation was a fair comment, and certainly did not fall within

haling distance of an abuse of discretion that would sustain

Darlene's substantive challenge to her sentence.                See Ayala-

Vazquez, 751 F.3d at 29.

                          III.    Conclusion

           For the reasons set forth above, we vacate Darlene's

conviction on the aiding and abetting count (Count 6), and we

affirm   her   sentence   for   the   remaining   counts   of   conviction

(Counts 1 and 3).    The case is remanded to the district court for

further proceedings in light of this opinion.




                                  - 32 -
