14-3313 Darwin Montana v. James N. Cross

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7^th Circuit Court of Appeals

Case Name: Darwin Montana v. James N. Cross

Case No.: 14-3313

Officials: BAUER, RIPPLE, and ROVNER, Circuit Judges.

Because appellant was not precluded from arguing that he lacked knowledge of his confederate carrying a firearm in his direct appeal, he cannot proceed under §2241

“It was therefore open to Mr. Montana to argue, at the time of his appeal and at the time of his initial collateral attack un‐ der § 2255, that the statutory offense of aiding and abetting the carrying of a firearm during a crime of violence required that he have actual knowledge that his confederate was car‐ rying a firearm. Indeed, when we next revisited the elements of the offense in United States v. Taylor, 226 F.3d 593 (7th Cir. 2000), we made no mention of constructive knowledge being adequate to sustain such a conviction. The entire tenor of the court’s discussion makes it difficult to conclude that such con‐ structive knowledge would have sufficed. Rather, it is far more plausible to read Taylor as suggesting that constructive knowledge had no place in such an analysis because knowledge of the presence of a firearm was considered a nec‐ essary component of the defendant’s intent to foster the fire‐ arm’s use in the underlying crime. See id. at 597 (“If Wilson was physically distant or otherwise removed from Taylor’s vantage at the time Wilson brandished and used the firearm, we could not automatically presume Taylor’s observation and actual knowledge of weapon use.”). In any event, it certainly was not foreclosed to Mr. Montana to argue that the Govern‐ ment had to prove that he had actual knowledge of the pres‐ ence of the firearm to sustain his conviction. Mr. Montana was therefore entirely free to make his current argument that, by the time he had actual knowledge of the presence of the fire‐ arm, he was unable to cease the activity he had undertaken in support of his confederate.”

Affirmed

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