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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.

So ...

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.8

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)

Now, 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?

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.

The Daily Kos Firearms Law and Policy group studies actions for reducing firearm deaths and injuries in a manner that is consistent with the current Supreme Court interpretation of the Second Amendment. If you would like to write about firearms law please send us a Kosmail.

To see our list of original and republished diaries, go to the Firearms Law and Policy diary list. Click on the ♥ or the word "Follow" next to our group name to add our posts to your stream, and use the link next to the heart to send a message to the group if you have a question or would like to join.

We have adopted Wee Mama's and akadjian's guidance on communicating.  But most important, be kind, for everyone you meet is fighting a battle.

Originally posted to Firearms Law and Policy on Wed Mar 05, 2014 at 03:05 PM PST.

Also republished by Shut Down the NRA and Repeal or Amend the Second Amendment (RASA).

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Comment Preferences

  •  Tip Jar (11+ / 0-)

    2014 is HERE. Build up the Senate. Win back the House : 17 seats. Plus!

    by TRPChicago on Wed Mar 05, 2014 at 03:05:14 PM PST

  •  I do not see the conflation (6+ / 0-)

    of gun ownership especially with an aggravation of the crime.  One would think that one does not haphazardly carry out a crime and just for the heck of it carry a gun because he or she had a permit and is concerned with self-defense. If you carry a gun while committing a crime then the one possessing the gun has some explaining to do.

    •  Agreed, and a perp with a permit may be the ... (2+ / 0-)
      Recommended by:
      Glen The Plumber, LilithGardener

      ... exception, I grant you. But in those cases, you can bet a lot that defense counsel will raise it - that a perp needs protection against dangerous fellow conspirators. Under that posture, a weapon will be for personal protection, not in furtherance of the crime. It's also not at all unreasonable to think that at least one juror will favor gun rights.

      Courtrooms are, after all, theater. Many months removed from the passions and tensions of the moments of a crime, reality may get displaced. Cases involving guns seem to be doing that these days.

      2014 is HERE. Build up the Senate. Win back the House : 17 seats. Plus!

      by TRPChicago on Wed Mar 05, 2014 at 07:08:44 PM PST

      [ Parent ]

      •  Juries decide fact (1+ / 0-)
        Recommended by:

        Whether the Second Amendment provides an affirmative defense to a crime is a legal question, which would be decided by a judge.  Assuming a judge concluded that there was no such defense (as she almost certainly would), evidence of whether the defendant had a license to carry a gun would be excluded as irrelevant.  An attorney or pro se dfendant's attempt to make such an argument during an opening or closing statement would be grounds for a mistrial.

        •  The issue could be whether the gun was used ... (1+ / 0-)
          Recommended by:

          ... in furtherance of the crime, I think, not whether there's a right to carry.

          I put the permit in my hypo so as to validate carrying the gun. (Under today's law, it would be a state statute giving a right to carry and whatever jurisdiction issued or approve permits. The Second Amendment wouldn't cover it, right?)

          As I see it, the defense wouldn't be against the underlying crime in a drug deal case, for example, but against allegations that the gun carrier had a higher degree of culpability. That charge would present a fact question, wouldn't it? (If it doesn't, I'd agree with you.)

          The Federal statute imposes five more years for just having the gun at the scene. That - without any use in furtherance of the crime - is what I'm thinking might be trumped by a statutory right to public carry.

          If a judge ruled that was not a good defense and took it away from a jury, it'd be a heckuva Supreme Court case!

          2014 is HERE. Build up the Senate. Win back the House : 17 seats. Plus!

          by TRPChicago on Fri Mar 07, 2014 at 06:56:39 AM PST

          [ Parent ]

          •  Your comment reminds me of Masciandaro (1+ / 0-)
            Recommended by:

            It was one of the first public carry cases to reach SCOTUS post Heller. (SCOTUS declined review in 2009).

            The facts are simple. Sean Masciandaro and his girlfriend pulled into a park, administered by the National Park Service, and fell asleep. The next morning when they were awakened by park police.

            On the western side of the Potomac, the park was within Virginia, where Sean had an expired license to carry concealed. He was charged for illegally carrying a firearm  in a National Park, but wasn't charged anything for carrying concealed without a valid license. He tried to claim that he sleeps in his car when he travels on business, so he should have the same rights as he would at home. The court was not persuaded (his legal residence was 20 miles away).

            The kicker (to me) is that nothing would have happened if he had parked legally. He was ticketed for parking crossways in the parking area instead of pulling into a legal parking spot. That's the reason the cop woke them up and everything else fell out from Masciandaro's careless disregard for legal parking.

            "The pessimist complains about the wind; the optimist expects it to change; the realist adjusts the sails.” — William Arthur Ward

            by LilithGardener on Fri Mar 07, 2014 at 10:43:51 AM PST

            [ Parent ]

            •  I guess I'm getting old and tired, but ... (1+ / 0-)
              Recommended by:

              ... Masciandaro, in my view, should have gone away when Congress required the Park Service to relax its rule. I do not agree with that policy, mind you, but it's like Heller - it's the law. A lot of national pros are embedded in states with wide open spaces, liberal gun laws and, apparently, a compelling need to carry guns around.

              So the Masciandaro case being trivial in the first place, I'd let the guy off as a practical matter. Prosecutors, appellate counsel, the court docket and all the king's men should get on to important cases. (There's a good legal maxim for this. De minimus non curat lex: "The law does not concern itself with trifles.")

              Nevertheless, by holding that Masciandaro was not relieved by the subsequent change in the law (I agree with the principle on that; I'd just use it for more serious matters), the Circuit Court was required to deal with the Second Amendment question. Which they did - well in my view - by holding that as applied to the Masciandaro facts, the Second Amendment didn't bar prosecution.

              Interesting little - little - case.

              2014 is HERE. Build up the Senate. Win back the House : 17 seats. Plus!

              by TRPChicago on Fri Mar 07, 2014 at 03:01:27 PM PST

              [ Parent ]

              •  Agreed, but technically it was pre-Heller (1+ / 0-)
                Recommended by:

                and it's not a wide-open space National Park where you might need a gun. It's an urban park just across the river from Washington DC, can get really crowded in the summer.

                I thought he was lucky that he was given a pass re his expired carry permit. It's a little case, yes, but Alan Gura is the advocate on the petition, and it gets cited again and again on cases that adopt a similar 2 step analysis to 2A claims.

                The silly man would never have been bothered if he had bothered to park legally. The distinction, IMHO, is the general sloppiness and entitlement that does a man in.

                "The pessimist complains about the wind; the optimist expects it to change; the realist adjusts the sails.” — William Arthur Ward

                by LilithGardener on Fri Mar 07, 2014 at 03:14:42 PM PST

                [ Parent ]

                •  Excellent point. For gun rights, there are NO ... (1+ / 0-)
                  Recommended by:

                  ... "little" cases. I get that. If you're passionate about extending the law, you seize the brass ring when it comes around within reach.

                  But that sense of "entitlement" - the "because I can!" display of long and scary guns outside the Texas restaurant where a few women were meeting about Mothers Against Guns - will, I expect, deal some extra blows to gun rights advocacy as time goes on. As will intervening as amicus in criminal cases that are messy like Rosemond but on their facts don't raise serious gun rights issues.

                  In this environment, I'd pick my fights pretty carefully, to avoid depreciating the intellectual currency. I think the Brady group is better at that than the gun rights advocates who piled on to Rosemond. Heller wound up being a great case on the facts because Heller himself was an appealing plaintiff.

                  You've watched these cases develop over more time than I have. What do you think?

                  2014 is HERE. Build up the Senate. Win back the House : 17 seats. Plus!

                  by TRPChicago on Fri Mar 07, 2014 at 04:30:06 PM PST

                  [ Parent ]

                  •  It's interesting to see how Alan Gura's argument (1+ / 0-)
                    Recommended by:

                    has evolved from Masciandaro, Kachalsky, and Woollard...

                    In his petitions for those three cases, (available at SCOTUSBlog) Gura laid out a few different complaints about how the lower courts are ignoring SCOTUS directions in Heller and McDonald. He claimed:

                    1) They improperly invoke "presumptively lawful prohibitions" citing the examples in Heller.
                    2) They limit Heller to its facts.
                    3) They impose a threshold test and then punt.
                    4) They impose a threshold test and then perform a balancing test, which Gura believes was explicitly disallowed in Heller.
                    5) They perform a hybrid analysis (part historical).

                    SCOTUS passed on all three. I read in one of the gun rights forums a post by Gray Peterson, the plaintiff in Peterson v Martinez, that Gura did not appeal his case to SCOTUS because SCOTUS had rejected Kachalsky. If that's true, I take that to mean that Gura didn't want to risk SCOTUS taking that case and upholding the right of states to limit their concealed carry licenses to state residents. That would be a major blow to advocates of National Right-to-Carry Reciprocity.

                    Now with the Drake petition, Gura has changed his argument. He's added a complaint that lower courts are not requiring states to backup their policies with evidence.

                    The plaintiffs in Drake are more sympathetic, but there are still 2 concealed carry cases pending in the 9th Circuit, that were heard the same day as Peruta. IMO, Peruta was the first Circuit Court decision to undertake a historical analysis starting with the cases cited in Heller.

                    IMO, SCOTUS will wait for another Circuit court to undertake a historical analysis, (perhaps the 7th Circuit or the 10th Circuit).

                    They might wait to rule on concealed carry until they get a petition from a plaintiff that has no right to public carry, such as DC, California, or Hawaii. The most advanced case in a jurisdiction with no public carry for self defense is Heller II from Washington DC.

                    "The pessimist complains about the wind; the optimist expects it to change; the realist adjusts the sails.” — William Arthur Ward

                    by LilithGardener on Fri Mar 07, 2014 at 05:43:48 PM PST

                    [ Parent ]

                    •  Why isn't Drake a good case? (1+ / 0-)
                      Recommended by:

                      It's already at SCOTUS on a petition for cert, awaiting New Jersey's response.

                      New Jersey is a carry state, true, but it has set an arguably high standard - "justifiable need" - for granting carry permits. In Drake, Gura raises Second Amendment challenges to both the pure carry issue (confrontation, for self-defense) and the restrictive standard for granting carry permits.

                      True, the San Diego cases might be as good or better, but they're still back in the Ninth Circuit. Advocacy groups on both sides have glommed on to that case and the rhetoric - if you can call it that - is pretty strong. I doubt very much that even the winners of that case want it to stay in the Ninth Circuit. They ought to be delighted - just as Gura was about DC's decision to appeal Heller - to have the San Diego sheriff or a lawyer speaking for him file an appeal.

                      (I'm wondering why the AG couldn't just take over for the San Diego municipal counsel by simply substituting lawyers. I'm thinking Gura, Clements & Co. wouldn't object.)

                      2014 is HERE. Build up the Senate. Win back the House : 17 seats. Plus!

                      by TRPChicago on Fri Mar 07, 2014 at 06:03:09 PM PST

                      [ Parent ]

                      •  It might turn out to be a good case (1+ / 0-)
                        Recommended by:

                        But it is representative of a bunch of circuits whose 2-step analysis is well established now. The restriction of public carry is well supported by evidence of crime and public safety in the eastern circuits that have upheld good cause permitting laws so far. (Laid out in Masciandaro and cited in Woollard - maybe I should diary that?)

                        During the development of that analysis there have been no SCOTUS petitions arguing from a different starting point, none from the 7th Circuit, and none from the 9th Circuit. If SCOTUS wanted to allow time for the states to experiment, and for the lower courts to develop legal arguments then the question is not yet ripe, IMHO....  (IANAL and wouldn't put any money on my opinion here)

                        "The pessimist complains about the wind; the optimist expects it to change; the realist adjusts the sails.” — William Arthur Ward

                        by LilithGardener on Sat Mar 08, 2014 at 06:44:53 PM PST

                        [ Parent ]

        •  Hundreds of criminal defendents have (0+ / 0-)

          asserted violation of their 2A rights, and the vast majority of lower courts to review post-Heller decisions, have upheld their convictions.

          "The pessimist complains about the wind; the optimist expects it to change; the realist adjusts the sails.” — William Arthur Ward

          by LilithGardener on Fri Mar 07, 2014 at 10:32:23 AM PST

          [ Parent ]

          •  Then there remains hope for a civilized society! (1+ / 0-)
            Recommended by:

            2014 is HERE. Build up the Senate. Win back the House : 17 seats. Plus!

            by TRPChicago on Fri Mar 07, 2014 at 04:54:31 PM PST

            [ Parent ]

            •  The cases include a range of questions (0+ / 0-)

              and a range of analytical approaches to both criminal defendants and non-criminal plantiffs.

              The questions have included simple ones, such as:

              1) Can lying on a form be sufficient to deny renewal of a concealed carry permit? Answer: Yes, it is.

              2) Does a person convicted of a domestic violence retain their right to bear arms for hunting? Answer: No, they don't.

              3) Can juvenile crimes bar issuance of a concealed carry license? Answer: Yes, they can.

              3) Do states have a right to require permanent residence in the state before issuing a concealed carry permit? Answer: Yes, they do.

              Under Heller, what states cannot do:
              Impose blank bans on handgun possession in the home.
              Administer laws in an arbitrary and capricious manner.

              "The pessimist complains about the wind; the optimist expects it to change; the realist adjusts the sails.” — William Arthur Ward

              by LilithGardener on Fri Mar 07, 2014 at 05:21:20 PM PST

              [ Parent ]

  •  Moral of the story - don't bring a gun to a drug (6+ / 0-)

    deal if you don't want to be charged with a gun crime.

    "Looking back over a lifetime, you see that love was the answer to everything." — Ray Bradbury

    by We Shall Overcome on Wed Mar 05, 2014 at 04:43:01 PM PST

    •  Along with: becareful who you chose as friends (1+ / 0-)
      Recommended by:

      Because you will be judged by their actions.

      "It's not surveillance, it's data collection to keep you safe"

      by blackhand on Thu Mar 06, 2014 at 11:20:40 AM PST

      [ Parent ]

      •  Not really (1+ / 0-)
        Recommended by:

        The SCOTUS decision is clear on this point. You can be driving around in a car with your friends totally unawares to their plans to do a drug deal, and totally unawares to the fact that one of them has a gun.

        You are not a party to the deal or to the gun if you didn't know about it. And one way you can prove that is by removing yourself from the group as soon as you do know about either one.

        "The pessimist complains about the wind; the optimist expects it to change; the realist adjusts the sails.” — William Arthur Ward

        by LilithGardener on Fri Mar 07, 2014 at 10:47:39 AM PST

        [ Parent ]

  •  Thanks for covering this petition (2+ / 0-)
    Recommended by:
    Glen The Plumber, Sharon Wraight

    and it's resolution.

    Somehow I had missed the first time around that everyone else had been granted immunity for testifying against Rosemond.

    And yes, that footnote dissent is bizarre. Makes me want to read her whole opinion. Is it a veiled reference to Abramski?  

    How do they decide who writes for the majority?

    "The pessimist complains about the wind; the optimist expects it to change; the realist adjusts the sails.” — William Arthur Ward

    by LilithGardener on Wed Mar 05, 2014 at 06:00:02 PM PST

  •  I don't want to read the case to confirm this, (3+ / 0-)

    but it sounds like the problem in the district court was both weak instructions, and weak evidence.  Some kind of half assed instruction and strong evidence of guilt on the part of  Mr. Rosemond would likely have gotten a "harmless error" decision now, or probaly even earlier. Strong instructions (meaning that one, or both sides below did not do good work, because the instructions could have been strong for the defense, or strong for the prosecution, and obviously were neither) and this puppy would have gone one way or the other much sooner than this. But, split Circuits, so someone was going to get the spotlight, sometime.

    As far as meaning anything, the SCOTUS pretty much had to take this issue sometime, and the result affects pretty much no one.

    (My takeaway? I thought that drug deals this stupid were long since a thing of a far distant innocent past. Some fool chumps you by getting your stuff far enough away to jump in a car and run, without getting physically tackeled by you, and that's on the seller. Trying to throw some lead into the picture is pretty much stupidity squared.)

    There can be no protection locally if we're content to ignore the fact that there are no controls globally.

    by oldpotsmuggler on Wed Mar 05, 2014 at 08:28:23 PM PST

    •  Messy! I'm speculating that the prosecutor... (3+ / 0-)

      ... got surprised when the driver-perp changed her testimony from her post-arrest statement (which implicated Rosemond). That would explain why he tried both theories - Rosemond as the shooter, but also that it didn't make any difference. (Another factor: the jury did not know the sentences associated with finding Rosemond guilty of the armed crime.)

      But don't you also have to wonder why the prosecution needed to give all four of the other perps immunity? And, why the buyers? How would they know who was shooting at them? After all, it was night and ostensibly, they were fleeing away from the shots.

      In an earlier diary on the facts, Lilith and I challenged the original investigation.
      - Why wasn't the gun found during the investigation at the scene? (The cops searched the car with the driver's permission but missed the gun.)
      - Is it reasonable that Rosemond would have the ammunition if he didn't have the gun? (He was found guilty on two ammunition-possession counts as a previously convicted felon, and did not challenge these on appeal!)
      - Why was no gunshot residue test done on the hands of the perps? (Current learning is that GSR is somewhat unreliable but you'd think it would have distinguished the perp who fired the gun from the one who didn't.)

      RE instructions, there were extended colloquies on them. It sounds like the trial judge only grudgingly accepted the prosecutor's absolutist view of the law. I'm thinking that was what led to SCOTUS bouncing the case back to the Tenth Circuit instead of reversing it out of hand on erroneous instructions.

      2014 is HERE. Build up the Senate. Win back the House : 17 seats. Plus!

      by TRPChicago on Wed Mar 05, 2014 at 09:09:44 PM PST

      [ Parent ]

      •  And it is the SCOTUS, so, by definition, it's not (0+ / 0-)

        chopped liver.

        It's just that I'm so used to "The Law" becoming just another casuality in The War on Drugs that I'm almost not even curious any more about the ways that it becomes perverted. But more importantly, from my point of view, the case nothing for the NRA, nor against the NRA and that's why I said that it's not really going to touch very many people.

        There can be no protection locally if we're content to ignore the fact that there are no controls globally.

        by oldpotsmuggler on Thu Mar 06, 2014 at 10:16:36 AM PST

        [ Parent ]

  •  Serious can of worms... (1+ / 0-)
    Recommended by:

    Mix our nation's inconsistent, often draconian and racially imbalanced drug laws, add in the amazingly polarizing gun issue and sprinkle with contradictory testimony and questionable prosecutor conduct.

    I don't see any way this is going to end well. I'm personally concerned about it from the larger civil rights standpoint of "if you are convicted of X and I happen to be with you at the time, I am also guilty of X". And I mean in the sense of additional circumstances. Your friend has some drugs in his car and gets pulled over while you are a passenger? Your drunken buddy gets into a fistfight and has a knife in his pocket? Your roommate turns out to be using his laptop to deal in stolen credit card numbers? Or, perhaps more innocently, you are in something like an Occupy or Keystone XL protest and the stranger next to you has an "aggravating" item on them (or uses it) when you are both arrested? Would you have "simple knowledge" of it and thus count as an accessory to their conduct?

    Rosemond as a case involves a gun, but the law and thus any precedent set merely deals with the notion of "deadly weapon", and law enforcement has used that term so broadly as to call ordinary ballpoint pens, the cane of an 85-year old man, carpal tunnel wrist braces and the fists of average (non-boxer, non-martial artist) people "deadly weapons". So, if that protester next to you has a stick with some nails in it (holding a placard), you might want to quietly move away from them...

    There is some sort of line where you know you are involved in a criminal enterprise (which could be civil disobedience) and are thus culpable directly or as an accessory. So if you and your buddies are planning an armed robbery, it's an armed robbery and clearly you knew that going into it. But I do not think that in ambiguous situations that the law should default to requiring you to be a mind-reader or doing a strip search of everyone you are with to avoid being penalized for their conduct or their possessions.

    •  Welcome! The line may be easier to draw ... (2+ / 0-)
      Recommended by:
      Shamash, LilithGardener

      ... than you think.

      The incidents you mention (drugs in car, drunk buddy with knife, roommate with 'top, stranger in a protest) probably would not result in criminal prosecution of you for anything, much less an aggravated offense. Then again, prosecutors can pull out the stops, but I think a judge would cut through the haze. And actually, the law in this case (Sec. 924) does say firearm. But Yes, even a high heeled shoe can be a deadly weapon. (After all, they do call it a "stiletto".)

      Your last para is right on. That is this case and why it was troublesome. The oral arguments before the Court sloshed all through this territory, one non-clarifying hypothetical after another. And it's why the defense argued that Rosemond had to participate in some way in the gun aspect of the drug deal. He lost that one.:

      Rosemond argues that a participant in a drug deal intends to assist a §924(c) violation only if he affirmatively desires one of his confederates to use a gun. ...

      We think not. What matters for purposes of gauging intent, and so what jury instructions should convey, is that the defendant has chosen, with full knowledge, to participate in the illegal scheme ...

      It has long been the law that - in general - if aiding and abetting accomplices are in for the dime, they're in for the whole dollar. It may take knowledge to trigger culpability and according to this case, when and how there is an opportunity to opt out (those are jury questions), but not more.

      2014 is HERE. Build up the Senate. Win back the House : 17 seats. Plus!

      by TRPChicago on Thu Mar 06, 2014 at 06:35:08 AM PST

      [ Parent ]

      •  Thank you for the correction (2+ / 0-)
        Recommended by:
        TRPChicago, LilithGardener

        I had thought that most of the "deadly weapon" aggravations on felonies were general "deadly weapon" statutes rather than being specific to guns and I was simply following your lead in the diary when you used the term. Reading through the sec 924 link you provided, I see the government has indeed tacked on a gun-specific addition to the normal "deadly weapon" penalties. I stand corrected (and more informed). Thanks.

        As far as the incidents I mention, note that I provided links to a few of them in which people were charged with deadly weapon violations for trivial items. I did not provide a link for the "fists as deadly weapon" item because that was thrown out by the judge, but it was nonetheless attempted by the prosecutor, and I think we have far too many examples of overreach by prosecutors (especially conservative ones) to give them any new excuses.

        What concerns me overall is not the "willing accessory" part (which I agree with), but the "the guy with me stepped over the line" part, the "I would not have gotten involved if I knew he was bringing a gun" aspect.

        Plus of course the whole "reselling a pound of pipe tobacco is a misdemeanor (if you do not have a license) but a pound of weed is a felony" thing. The gun thing simply adds insult to an already bad law. If marijuana was legal and licensed this case and the aggravating circumstances would not even exist.

        •  Yes, "deadly weapon" is a common term in ... (2+ / 0-)
          Recommended by:
          LilithGardener, Shamash

          ... aggravation statutes. It can get stretched thin, but it's always going to include a gun. Possibly even if it's not loaded. Why? Because of the apprehension that showing a gun produces.

          We're still a society leery of guns, particularly the display of guns. In Illinois, we're just now adjusting to a new concealed carry law. A lot of training hours are being put into getting police officers up to speed to defuse situations where guns become evident.

          As for the marijuana in this case, this was a pound, said to be worth about $800. I'm not for unlicensed sale of it, but in this case, it was a heckuva Gotcha for law enforcement. Think of the resources poured into getting Justus Rosemond and hitting him with 14 years in prison. I'm all for penalizing the participants in a crime, especially an armed crime, but this case seems over the top to me, especially since the initial investigation was so inept. On the other hand, Rosemond was a felon coming into this caper ...

          2014 is HERE. Build up the Senate. Win back the House : 17 seats. Plus!

          by TRPChicago on Thu Mar 06, 2014 at 07:36:26 AM PST

          [ Parent ]

          •  People are leery of what they don't understand (0+ / 0-)

            as a general case, not just limited to guns or we as Americans. But that's a larger matter for a different diary.

            Reading some of the details of the Supreme Court case, the government looks like it was pushing sand uphill. A 7-2 liberal-heavy decision saying the defendant had to know about the gun in advance (enough in advance to decline to participate in the crime), with Scalia signing on to most of it and the Gun Owners Foundation filing an amicus curiae on behalf of the defendant?

            Whoever was pushing the prosecution side of the case got no love from conservatives or liberals and went home seriously butthurt that day.

            See the SCOTUSblog analysis here.

            •  Good cite to Prof. Little's SCOTUSBlog analysis. (1+ / 0-)
              Recommended by:

              Did it surprise you that the Gun Owners Fndn. and four other advocacy groups filed briefs in Rosemond's favor?

              It surprised me. Mostly, I think those groups tend to stay out of bad guy criminal cases unless the case, like Abramski coming up in a while, more clearly raises gun rights as such. (Abramski drew crazy Steve Stockman (TX-36), a slew of states and many more gun rights groups.)

              As for the law of crimes involving use of deadly weapons, firearms are darned near universally regarded as aggravating any offense. I don't agree that is just because we don't understand guns. Those laws - along with aid-and-abet and felony murder - have been on the statute books of legislatures and law enforcement for, I'm thinking, probably at least a century.

              In the arguments before SCOTUS, even the Solicitor General for the government invited the Court to send Rosemond back to Tenth Circuit to see if the errors in the instructions justified reversing. In effect, he gave up the case if the justices were so inclined, and they took him up on it!

              2014 is HERE. Build up the Senate. Win back the House : 17 seats. Plus!

              by TRPChicago on Thu Mar 06, 2014 at 01:50:26 PM PST

              [ Parent ]

    •  You might enjoy reading the first two diaries (3+ / 0-)
      Recommended by:
      TRPChicago, Sharon Wraight, WakeUpNeo

      TRP wrote about this case. The first covered the petition and the second covered the oral arguments.

      Many of us thought the prosecution had done a shitty job. They only thing they had to go on were witnesses in a park at night who had heard the shot and saw the car drive away.  They never even found the gun in their initial search of the car. So they empty shells from the park and Rosemund had some ammo in his pocket.

      The oral arguments were hilarious, as the Justices interrupted each other, spoke over each other, and posed various hypothetical scenarios to try to define what aid & abet mean. The full transcript diary is here.

      "The pessimist complains about the wind; the optimist expects it to change; the realist adjusts the sails.” — William Arthur Ward

      by LilithGardener on Thu Mar 06, 2014 at 10:07:27 AM PST

      [ Parent ]

  •  The Prosecution (4+ / 0-)

    So, there are five criminals (three selling pot and two buying it), and the prosecution gives immunity to four to gain a conviction for the fifth.  

    Final score: one bad guy in prison, and four on the streets.

    Throw in a review by the Supreme Court and two reviews by the Circuit Court of Appeals, and you have a very expensive prosecution for a minor prize.

    Was any crime committed?  I point out no pot was actually sold; no money changed hands.  At most, it appears the perpetrators were involved in an effort to distribute a controlled substance, but one party did not want the distribution to be done.  Perhaps the defense should have argued the gun was used to stop a crime of distribution of a controlled substance from being completed.  Mr. Rosemund is actually a CRIME-FIGHTER - just like all the other people who carry guns with them.

    WE HAVE FOUND THE DEFENSIVE GUN USE!!!!  Brave citizens uses his gun to defend himself from thieves taking his property!! (yes - I'm being snarky here).

    Thanks for reviewing this complicated case.  Nice job of explaining some difficult ideas - and nice graphic as well!

    "The fool doth think he is wise: the wise man knows himself to be a fool" - W. Shakespeare

    by Hugh Jim Bissell on Thu Mar 06, 2014 at 06:46:24 AM PST

    •  You're welcome ... But I have to come clean, (1+ / 0-)
      Recommended by:

      ... and confess something I should have said before.

      That graphic, like much else that is good about FLAP, is by Lilith. I haven't mastered tagxedo yet.

      2014 is HERE. Build up the Senate. Win back the House : 17 seats. Plus!

      by TRPChicago on Thu Mar 06, 2014 at 09:10:45 AM PST

      [ Parent ]

      •  You can too!! (2+ / 0-)
        Recommended by:
        LilithGardener, Sharon Wraight

        LG did tagexdos for many of my diaries as well (Thank You, LG!!).

        And then she told me about  Go to the web-site, and in two shakes of a lamb's tails, you'll be making your own.  It's actually very easy to do (done routinely by people with much less brain power that you or I).  Now I put them in all my FLAP diaries.

        The hardest part for me was figuring out how to get the image into my dk diaries.

        Everything I know about html, I learned from LG.

        "The fool doth think he is wise: the wise man knows himself to be a fool" - W. Shakespeare

        by Hugh Jim Bissell on Thu Mar 06, 2014 at 09:27:21 AM PST

        [ Parent ]

      •  Actually, the credit goes to JekylNHyde (1+ / 0-)
        Recommended by:
        Sharon Wraight

        who taught me.

        Careful though, it can be addicting.

        "The pessimist complains about the wind; the optimist expects it to change; the realist adjusts the sails.” — William Arthur Ward

        by LilithGardener on Thu Mar 06, 2014 at 09:38:41 AM PST

        [ Parent ]

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