Rosemond v. United States, Case No. 12-895 (March 5, 2014)

Federal law (18 U.S.C. § 2) provides that people who help other people commit crimes can be convicted of those crimes just as if they had committed them  themselves.  This is called “aiding and abetting” liability.  If one aids or abets (that generally means “helps”) someone else commit a crime, the aider or abettor can be found guilty of a crime he or she did not physically commit.  Thus if you loan money to someone to buy a kilo of cocaine, and they then buy it and resell it in small lots, you can still be convicted of distribution although you never saw the cocaine, let alone handled it.

(This is different from conspiracy – 18 U.S.C. § 846 – in which one is much more easily ensnared than aiding or abetting).

In a case decided March 5^th by the Supreme Court of the United States, Rosemond v. United States, (Case No. 12-895), defendant Rosemond joined with two other people to sell drugs – but he claimed he didn’t know his companions would use a gun.  Federal law makes it a separate crime to commit a drug trafficking offense while using a gun (18 U.S.C. § 942(c)), a crime that carries a mandatory additional sentence of five years or more extra years in prison.  In Rosemond, the Supreme Court ruled that to convict a defendant of a § 924(c) offense on an “aiding or abetting” theory, the government must prove that the defendant knew in advance that someone else would use a gun, and at least far enough in advance so that he could, if he chose to, quit the crime.  If the defendant only learned about the gun when there was “no realistic opportunity” to quit, then he can’t be convicted.  In the words of law, he would lack the “mens rea” – the mental state – required, about the gun to convict.

The Justices agreed that because § 924(c) has two basic elements – drug trafficking plus a firearm — a criminal § 924(c) aider or abettor must have “foreknowledge” that someone will use a gun, and not just foreknowledge that a drug deal is planned.  The trial court instructed the jury that it was enough for them to find that Rosemond knew it was a drug trafficking crime and that “his cohort used a gun” – not that Rosemond also knew that his companion would use a gun.  The trial court’s error was that the requirement that there be “foreknowledge” regarding the gun was not well conveyed to the jury.

The Justices unanimously rejected the idea that a defendant must be proven to have “desired” the use of a gun in order to be convicted.  That he “knowingly elected to aid” even after learning that a gun was involved is enough – “[t]he law does not, nor should it, care whether he participates with a happy heart or a sense of foreboding.”

The majority further subdivided the ques-tion of “foreknow-ledge,” deciding that the standard requires advance knowledge of a gun “at a time the accomplice can do something” about it.   Such advance know-ledge “enables [the accomplice] to make [a] legal (and indeed moral) choice” – either to continue participating even with the risks that presence of a firearm can bring ­– or stop.  “[I]f a defendant continues to participate … after a gun is displayed …, the jury can permissibly infer” that he had the requisite foreknowledge.”  “But when an accomplice knows nothing of a gun until it appears at the scene, … he may at that point have no realistic opportunity to quit the crime.”  When this is so, the majority rules, he lacks the required intent to aid the gun-use, as aiding and abetting doctrine requires.

Trial courts frequently punish what otherwise might be aiding or abetting liability under 18 U.S.C. § 924(c) by upward adjustments of two levels for possession of a firearm during a drug offense under § 2D1.1(b)(1).  The standard of proof is much lower, in where a large quantity of drugs was involved, the additional two levels often can add five years or more to the advisory Guidelines sentence.  Whether the Rosemond “aiding or abetting” liability analysis will be employed in assessing § 2D1.1(b)(1) liability is a fertile ground for argument.