In Rosemond v. United States, by a 7-2 vote (Justice Elena Kagan for the Court, Justices Samuel Alito and Clarence Thomas dissenting in part and J. Antonin Scalia dissenting on two footnotes), the US Supreme Court sent the case back to the 10th Circuit Court of Appeals.
The decision: to find a perp to a drug deal guilty of aiding and abetting the use of a gun, the government must prove:
… that the defendant actively participated in the underlying drug trafficking or violent crime with advance knowledge that a confederate would use or carry a gun during the crime’s commission.
Justus Rosemond and two accomplices tried to sell a pound of marijuana to a couple of buyers who inspected the stash, then fled into the night without paying. One of the sellers fired at the thieves as they ran away.
The facts were messy and inconclusive. The prosecution tried Rosemond under two theories: that he was the shooter or that he aided and abetted the drug crime knowing a gun was used. (The penalty is the same for the shooter as for an aid/abet accomplice.) The jury found Rosemond guilty but, as is typical in criminal cases, the jury delivered a "general verdict" that did not specify under which theory it convicted. The judge delivered the mandatory sentence prescribed by Federal law - ten years - in addition to four years for the aborted drug deal.
The law was uncertain, the Federal Circuit Courts of Appeal were divided and the oral arguments before SCOTUS were 50 minutes of some of the most articulate lawyers in the nation fumbling for something to grab onto:
Below the strange orange bullseye, what Justus Rosemond has to look forward to.
|Disclaimer. What follows is general information on a law topic. Nothing in this diary constitutes legal advice and it is not to be acted upon as legal advice. Criminal law and procedure is a law practice specialty. If you need advice, get it from a skilled professional.
The proof at trial was uncertain: which of the three drug dealers-to-be grabbed a 9mm handgun, got out of the car and fired seven shots at the departing thieves? The prosecution gave everyone else in the case besides Rosemond - the two other seller-perps and both buyers - immunity for testifying and got inconclusive and conflicting results from them. One perp took the stand and swore it was Rosemond who shot the gun, not him. The other perp, the driver of their car, testified her back was turned and she didn't see who fired. (She changed her testimony from an earlier statement.) Not even the bystander testimony was helpful. Another complication - was the shooting a continuation of the failed drug deal or a new crime altogether? The facts are covered in I Didn't Know the Gun.
While the facts were messy, the law is clear ... up to a point. Use of a deadly weapon traditionally makes virtually any crime a more "aggravated" offense with harsher penalties under most Federal and state laws. Under Sec. 924(c)(1)(a), if a weapon is used in furtherance of a drug crime, those who aid and abet it are as guilty as the one who had the gun (mandatory 5 years added sentence), brandished it (7 years added) or fired it (10 years).
The prosecutor proceeded as if he didn't have to prove whether the defendant fired the weapon. He argued that Rosemond was guilty because as an accomplice, he knew a firearm was used in furtherance of the crime of drug trafficking.
The jury found Rosemond guilty of possessing drugs with an intent to distribute, two other charges concerning possession of ammunition and the firearms charge. Accordingly, Rosemond was sentenced to 48 months plus a mandatory additional ten years under Federal law. He appealed only his firearms conviction. The Tenth Circuit Court of Appeals upheld it.
Is continued participation in a drug crime after learning a cohort has a gun - "simple knowledge" or, as it might be phrased, just hearing a gun go off - sufficient to convict an accomplice on a firearms offense?
The prosecution's answer was Yes. Chasing the thieves was a continuation of the drug deal and it constituted "facilitation" of it. "If a gun is drawn and the person continues to facilitate the drug crime or the violent crime, that is enough."
Rosemond's lawyer argued that Rosemond had to have "purposeful intent to facilitate or encourage the crime of conviction," meaning that he furthered the part of the crime involving use of the firearm and that "mere knowing assistance is insufficient."
The arguments before the Supreme Court were described in Is Justus Rosemond Done for or Will He Get a New Trail?
The bottom line: what is an acceptable instruction to the jury in an aiding-and-abetting gun case?
Justice Kagan (former dean of Harvard Law School) was in her professorial lecture mode.
An active participant in a drug transaction has the intent needed to aid and abet a §924(c) violation when he knows that one of his confederates will carry a gun. In such a case, the accomplice has decided to join in the criminal venture, and share in its benefits, with full awareness of its scope — that the plan calls not just for a drug sale, but for an armed one.And here's the rationale:
A final, metaphorical way of making the point: By virtue of §924(c), using a firearm at a drug deal ups the ante. A would-be accomplice might decide to play at those perilous stakes. Or he might grasp that the better course is to fold his hand. What he should not expect is the capacity to hedge his bets, joining in a dangerous criminal scheme but evading its penalties by leaving use of the gun to someone else. Aiding and abetting law prevents that outcome, so long as the player knew the heightened stakes when he decided to stay in the game.But there was trouble in a generally clear statement of what the law is. Essentially, the question was the Watergate question: What did the perp know and when did he know it? To summarize this point, J. Kagan used the term "advance knowledge." It was that language which energized a partial dissent from Justice Samuel Alito (J. Thomas concurring).
J. Alito (who tried drug trafficking crimes as a former Assistant US attorney in New Jersey) said the Court was confusing intent and motive, two different things. What troubled him is that Kagan’s opinion for the majority seemed to make the government prove something that is uniquely within the mind of the defendant. In effect, he said her explanation moved the burden of an aider/abetter’s defense ("I knew but could not reasonably withdraw from the crime") to the prosecution, with all the difficulty of proving what a defendant knew and thought.
The trial court's instructions to the jury did not include the requirement of advance knowledge. Indeed, the government conceded in its argument before SCOTUS that the instructions were squishy and "it would be a sensible result" to send the case back to the Tenth Circuit. Perhaps there were errors, but still ... (1) Had Rosemond's trial counsel objected to the instruction? Fairness doesn't require a flawless trial; was the error so serious that the case must be retried? And (2) what if the jury decided Rosemond was the shooter, and not just a bystanding but knowing accomplice? In that case, was the aid-and-abet instruction "harmless error?" In those instances, maybe the error in instructing the jury could be overlooked, depending on the Tenth Circuit's more thorough review of the matter.
We send this case back to the Tenth Circuit to consider the appropriate consequence, if any, of the District Court’s error.
1. AGGRAVATION ... BY CARRYING? It has long been the law that many crimes are "aggravated" if a firearm is present, certainly if it is used by being displayed ("brandished") or fired. Most Federal and state laws increase the penalties for armed offenses, if not the class of crime itself (robbery to armed robbery, for example). But all 50 states now allow open or concealed carry of firearms. And raising that even higher, to a Federal Constitutional right, is a touchstone of gun rights advocacy. So, what of cases where a perp is carrying a firearm in compliance with whatever permit the jurisdiction requires? Perhaps he or she has the holstered weapon. Or has it and pulls it in self-defense to ward off further violence by an accomplice who is also carrying? Or even fires it as, say, an Angela Corey/Florida warning shot? Yes, a criminal defendant can explain all this as an affirmative defense, but that requires taking the stand and opening oneself up to testimony about the underlying crime. Is that a fair result where a person with a gun has a permit to carry for self-defense?
2. MANDATORY SENTENCING. In the Rosemond case, we see the multiplier effect of threatening much longer sentences. It gives prosecution considerable leverage to extract plea deals and helpful testimony. (Well, sometimes helpful.)
Mandatory sentences for nonviolent drug crimes are under pressure. A surprising coalition of Democrats and Republicans recently announced support for changing Federal law. This accords with AG Eric Holder's directions to Federal prosectors several months ago.
3. ANOTHER SHOE DROPS. Justice Scalia voted with the majority. However, he registered a dissent - are you ready for this! - to a couple of footnotes, both clarifications of what this case does not decide. Here is J. Kagan's text and footnote 8:
So for purposes of aiding and abetting law, a person who actively participates in a criminal scheme knowing its extent and character intends that scheme’s commission.8Now, why would a nice little footnote like that draw a dissent? Yet, for that matter ... why put an example of a gun dealer "not caring" how a gun will be used in this footnote in the first place?
8. We did not deal in these cases, nor do we here, with defendants who
incidentally facilitate a criminal venture rather than actively participate
in it. A hypothetical case is the owner of a gun store who sells a
firearm to a criminal, knowing but not caring how the gun will be used.
We express no view about what sort of facts, if any, would suffice to
show that such a third party has the intent necessary to be convicted of
aiding and abetting. (underscoring added)
Just idle speculation, but ... readers of FLAP may recall the straw purchase gun case of Abramski v. US. A diary on the case is here. Abramski said he had asked several gun dealers if what he was planning to do was OK under the law and, reassured by them, he lied on an ATF form, bought a gun for his uncle and was convicted. (Getting that advice was an odd little factoid in the case, but not an issue as such.) Abramski is the other SCOTUS case now awaiting decision in this term of Court.
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