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WATER PARK DEFENDANT LEFT HIGH AND DRY BY DEFENSE COUNSEL

Isaac Seabrooks and his confederate Nigel Butler were criminals, but not very good ones. They pulled into the public lot of Grapeland Water Park, a pretty cool-looking municipal park in Miami. But they weren’t swimmers. Instead, they had larceny on their minds.

While park ranger Qonsheka Smith watched them from her vantage point, Isaac sat in the car while Nigel broke into a pickup truck parked there. He scored some items of dubious value, including three rather cheap and throwaway handguns.

The two drove off while Qonsheka frantically called for backup, but the pair disappeared before the police arrived. Qonsheka wrote the whole thing off as a failed bust, but a few minutes after the police left, our bumbling anti-heroes returned to the lot. Qonsheka called the law again, and this time, the police blockaded the exit before Isaac and Nigel could leave.

Isaac ultimately was charged federally with being a felon-in-possession of guns and ammo, and possession of stolen firearms. He argued adamantly that he had not “possessed” anything, and that he told Nigel to not bring the guns and ammo into the car. The government argued that even if he had not possessed the firearms himself, the jury could find he aided and abetted Nigel.

Aiding and abetting is a pernicious statute. Ordinarily, any act a defendant can do may be done by directing someone else, or it may be done by acting with or under the direction of the someone else. The standard jury instruction says that a “defendant aids and abets another person if the defendant intentionally joins with a person to commit a crime.” In other words, Isaac was guilt of felon-in-possession if he aided and abetted Nigel.

Isacc’s lawyer objected generally to the instruction on the grounds that the evidence did not support it, but the district court overruled him. Not until appeal did Isaac advance a new and novel argument, that after Rosemond v. United States, in order to obtain an aiding and abetting instruction on the possession of stolen guns charge, the government must prove that he had “advance knowledge” that there were firearms in the victim’s truck and that Nigel intended to steal them.

If defense counsel does not properly preserve an objection to a mistake at trial, all is not lost. But mostly it is. Rule 52(b) of the Federal Rules of Criminal Procedure says that a “plain error that affects substantial rights may be considered even though it was not brought to the court’s attention.” That standard generally proves to be much more daunting that you might think.

This week, the 11th Circuit turned down Isaac’s appeal. Although Isaac’s lawyer objected to the aiding and abetting instruction at trial, the Court of Appeals said that “general objection to the sufficiency of the evidence did not preserve the more specific Rosemond claim he now raises.” To preserve an issue at trial for later consideration by an appellate court, a defendant must raise an objection that is sufficient to inform the trial court and government of the particular grounds upon which appellate relief will later be sought. A general objection or an objection on other grounds simply will not do.

Thus, the Court reviewed the Rosemond issue for “plain error” only. But why’s that such a big deal? Well, it’s like this. Regular appellate review of legal issues is de novo. Isaac argued that Rosemond requires that he have advance knowledge That is to say, ‘was the judge wrong?’ “Plain error” review, however, asks ‘was the judge really wrong?’ That is the difference, as Mark Twain once wrote, between ‘lightning’ and ‘lightning bug.’

Isaac argued that under Rosemond, the government had to prove both that he knew Nigel was going to possess a firearm and knew Nigel was a convicted felon. The government disagreed, arguing that all Isaac had to know was that Nigel was possessing a firearm.

The 11th Circuit admitted that neither it nor the Supreme Court had addressed the question of whether a defendant had to know the principal was a convicted felon was an essential element of the offense of aiding and abetting a § 922(g) violation. Other circuits that had addressed disagreed. The 9th says the “government need prove beyond a reasonable doubt that the putative aider and abettor knew the facts that make the principal’s conduct criminal.”  Four different circuits go the other way.

If Isaac’s lawyer had properly objected that the government had to prove Isaac knew Nigel was a felon, the 11th Circuit probably would have gone with the majority of the circuits. Isaac would not have been convicted of the felon-in-possession count, and he wouldn’t be doing 20 years. But because his lawyer did not object specifically on the Rosemond issue, the Circuit said “we need not decide this question because there can be no plain error when neither the Supreme Court nor this Court has resolved the issue and other circuits are split.”

United States v. Seabrooks, Case No. 15-10380 (11th Cir.   October 19, 2016)