Case 1:21-cv-11269-FDS Document 67 Filed 11/22/21 Page 29 of 58
65, 77 n.8 (2014). In Rosemond, the Court specifically questioned whether there are “any” facts that “would suffice to show” criminal “intent” in the case of a “gun store” that “sells a firearm . . . knowing but not caring” that the buyer will use it in a crime. Id. Whatever the answer to that may be, defendants in this case are even further removed from liability: Mexico does not allege that any defendant ever sold a firearm to any buyer that it knew would commit a crime. Fourth, Mexico tries to advance a similar theory, Compl. ¶ 208, based on Direct Sales Co. v. United States, 319 U.S. 703 (1943), but that case is entirely inapposite. In Direct Sales, the defendant company was convicted of criminal conspiracy for selling morphine to a specific private doctor “in such quantities, so frequently and over so long a period [that] it must have known he could not dispense the amounts received in lawful practice and was therefore distributing the drug illegally.” Id. at 705. The Court emphasized that the defendant violated federal law only because it had “more than knowledge, acquiescence, carelessness, indifference, [or] lack of concern” about the doctor’s unlawful distribution of morphine. Id. at 713. Here, by contrast, there is no allegation that defendants sold firearms to any particular buyer in such quantities that the buyer could only be reselling them in illegal transactions. After all, Mexico itself alleges that only 2.2% of firearms manufactured and sold in the United States are illegally trafficked in Mexico. Compl. ¶ 437. And even if defendants were aware that some of their firearms might be resold to dealers who might then unwittingly or illegally resell them to straw purchasers, that does not make the defendants guilty of conspiracy or aiding and abetting. That is why Budweiser is not liable just because it knows that some of its products will be unlawfully sold to minors or consumed by drunk drivers. This is precisely the type of situation where Direct Sales recognized that federal liability is lacking, because even if “the evidence of knowledge [about some future unlawful sales] is clear, yet the further step of finding the required intent cannot be taken.” 319 U.S. at 712.
20
