by Kimberly Atkins
Dolan Media Newswires
WASHINGTON, DC -- Criminal attorneys are closely watching an upcoming U.S. Supreme Court case that could drastically affect the number of convictions and guilty pleas under one of the most commonly charged federal crimes on the books: aiding and abetting the use of a firearm during a violent or drug crime.
On Nov. 12, the justices will hear the case of Rosemond v. U.S. and then consider whether the government must prove that an alleged conspirator encouraged or facilitated the use of a firearm during a crime, or merely that he or she was aware that a participant in the conspiracy had a gun during the venture. The difference is a big one: A firearm charge under 18 U.S.C. §924(c)(1)(A) carries a mandatory minimum sentence of five years if the firearm is carried, seven years if it is brandished, and 10 years if it is fired. Those sentences often exceed the penalty for the underlying felony itself.
“In many cases, the [firearm] charge is the tail wagging the dog,” said John P. Elwood, a partner in the Washington office of Vinson & Elkins and an instructor at the University of Virginia School of Law Supreme Court Litigation Clinic, which is representing the defendant in the case before the court.
Rosemond comes out of the 10th U.S. Circuit Court of Appeals, but the circuits have split over the proper standard.
Hefty sentence enhancement
The defendant, Justus Rosemond, was convicted of a number of charges, including aiding and abetting the discharge of a firearm.
Police alleged that Rosemond and two associates attempted to sell marijuana to two people, but the alleged buyers tried to steal the drugs and fled. Shots were fired (it is disputed by whom) at the buyers as they ran away. The police did not recover a gun from the scene or on any of the alleged drug dealers.
As requested by the prosecution, the jury was instructed to find Rosemond guilty on the firearm use aiding and abetting charge if “(1) the defendant knew his cohort used a firearm in the drug trafficking crime, and (2) the defendant knowingly and actively participated in the drug trafficking crime.”
Rosemond was convicted and sentenced to 48 months for the underlying drug offense, plus a consecutive 10-year minimum sentence for the aiding and abetting firearm charge.
He appealed, arguing that the instruction was erroneous because it required only knowledge of the gun’s use, not the intent or facilitation of its use. But the 10th Circuit affirmed, holding that a defendant need not take “some action to facilitate or encourage his cohort’s use of the firearm” to be liable under §924(c).
The decision widened the split among the circuits over the mens rea standard for aiding and abetting the use of a firearm under §924(c).
The 6th Circuit held in the 1998 case of Rattigan v. U.S. that aiding and abetting liability is established “if the accomplice knows that the principal is armed and acts with the intent to assist or influence the commission of the underlying predicate crime.” The D.C. Circuit has held similarly.
However, a majority of federal appellate courts, including the 1st, 2nd, 5th, 7th and 8th Circuits, have required the government to prove more than knowledge of the firearm and intent to commit the underlying felony. In those jurisdictions, a jury must find that a defendant intentionally facilitated or encouraged the use of the firearm.
Several courts that require only knowledge have cited the 1st Circuit’s 1996 decision in U.S. v. Bennett to suggest that the difference has little effect, because in most cases, when a conspirator knows that a co-conspirator is carrying a gun, it is a tiny step to prove that he intended for it to be carried, brandished or fired.
The government made the same argument in its brief opposing certiorari.
“Even in those circuits requiring proof of facilitation, ‘once knowledge on the part of the aider and abettor is established, it does not take much to satisfy the facilitation element,’” Solicitor General Donald B. Verrilli Jr. wrote, citing Bennett.
Moreover, the government claims that the defendant’s argument would undercut a key purpose of establishing aiding and abetting liability: prevention.
“Given that the chief legislative objective of principal liability under Section 924(c) is ‘to persuade the man who is tempted to commit a Federal felony to leave his gun at home,’… it only makes sense that his accomplices in the commission of the felony should also be deterred from participating in the criminal enterprise when they know of their confederate’s use or carrying of a firearm,” the government’s brief stated.
Is knowledge enough?
Defense attorneys argue that allowing liability without a showing of the accomplice’s intent that a firearm be used eviscerates the connection between culpability and punishment, which is a basic tenet of criminal law.
On a practical level, the government’s position would lead to stiff sentences for defendants who had no idea that a gun would be involved, because advance knowledge is not necessary, they say.
“So essentially, if a defendant didn’t know about the gun until the gun went off, he could be found guilty,” said E. Brantley Webb, a litigation associate in the Supreme Court and appellate practice in Mayer Brown’s Washington office.
Webb, who co-authored an amicus brief in the case on behalf of the National Association of Criminal Defense Lawyers, used the example of a defendant who finds out that another perpetrator has a gun and discourages him or her from using it. Under the standard advanced by the defense in Rosemond, there would be no finding that the defendant encouraged the gun’s use, so there would be no aiding and abetting liability.
“But under the government’s rule, this guy would still be guilty as an aider and abettor,” Webb said.
Elwood said the potential impact of the court’s ruling is immense, because thousands of 924(c) charges are brought each year.
“This is important not only for trials — Rosemond’s own case is a great example — [but] it’s also important for the vastly larger number of cases involving guilty pleas,” Elwood said. “The negligible showing required under the minority rule encourages guilty pleas because the defendants realize the government has to prove next to nothing.”
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