March 7, 2014
That case is Rosemond v. U.S., and it is the first major ruling by the Supreme Court in the field of aiding and abetting law since 1980’s Standefer v. U.S. (which held that a person may be convicted of aiding and abetting where the crime’s principal (that is, the primary person or persons behind the criminal act) was acquitted).
The aiding and abetting statute in question here is 18 U.S.C. § 2, which states that “a person who furthers – more specifically, who ‘aids, abets, counsels, commands, induces or procures’ – the commission of a federal offense ‘is punishable as a principal.’”
Instead of increasing potential aiding and abetting liability as Standefer did, Rosemond decreased it.
In the seven to two decision (Justices Alito and Thomas dissenting), the Court resolved a circuit split over the question of whether the offense of aiding and abetting in the use of a firearm during and in relation to a drug trafficking crime requires proof of the defendant’s “intentional facilitation or encouragement of the use of the firearm,” or “if simple knowledge that the principal used a firearm during a drug trafficking crime in which the defendant also participated is sufficient.”
The facts of Rosemond are as follows:
In August 2007, Justus Rosemond and Ronald Joseph met Ricardo Gonzalez in a park to sell marijuana. Gonzalez tried to steal the marijuana, whereupon he was fired on while fleeing (though it is disputed who it was that fired the shots). Rosemond was captured and charged with multiple drug- and firearm-related offenses.
After a trial, the jury convicted Rosemond on all charges. Rosemond appealed, arguing that the trial court’s jury instructions pertaining to the aiding and abetting theory – that it was enough for them to find that Rosemond knew it was a drug trafficking crime and that Joseph had used a gun – were incorrect, and instead that the jury must find that Rosemond “intentionally took some action to facilitate or encourage the use of a firearm” to reach a conviction.
The Tenth Circuit disagreed with Rosemond, affirming his conviction.
The Supreme Court, however, reversed the court of appeals, siding with Rosemond.
Specifically, the Court ruled that although a defendant need only act to further only one element of a crime to be convicted of aiding and abetting, that same defendant must also have foreknowledge that of the entire crime that is intended. Broken down into law school terms, the “act” part of aiding and abetting can be satisfied as to only one part of the crime’s element, but the “mens rea” part of the crime can only be satisfied if the defendant has knowledge that every element of the crime is intended.
This foreknowledge must be sufficient such that the defendant “can do something about” the crime – specifically, either to continue participating or to stop.
In regards to this case, Justice Kagan, the author of the majority opinion wrote, “if a defendant continues to participate…after a gun is displayed…, the jury can permissibly infer” that he had the requisite knowledge. “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.”
Justice Alito’s dissent, indicative of his tendency to side with law enforcement and the state in criminal cases, labeled the majority’s “realistic opportunity” rule a “unprecedented alteration of the law of aiding and abetting and of the law of intentionality generally,” further bemoaning that the ruling will place “a strange and difficult burden on the prosecution” in that it holds the state to a higher burden while potentially allowing aiding and abetting defendants far more leverage to defeat criminal charges for lack of sufficient mens rea.
It remains to be seen whether Justice Alito’s dissenting grievances will come to pass, but, considering the significance of the ruling, we likely won’t have long to wait before we can see its impact on criminal law.