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To aid and abet violation of 18 USC § 924(c), defendant must have advance knowledge about use a firearm during the offense

Rosemond v. United States, USSC 12-895, 3/5/14, vacating and remanding United States v. Rosemond, 695 F.3d 1151 (10th Cir. 2012); Scotusblog page (includes links to the Court’s docket, the briefs, and commentary on the case)

Resolving an issue that had split the federal circuit courts, the Supreme Court holds that in a prosecution for aiding and abetting a violation of 18 U.S.C. § 924(c)–which prohibits the use or carrying of a firearm during a crime of violence or drug trafficking crime–the government must prove 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.” (Slip op. at 1).

Some circuits had held the government must prove the defendant intentionally undertook some act “to facilitate or encourage his cohort’s use of the firearm.” (Slip op. at 4). The Court disagrees and instead applies the common law principle of aider and abettor liability, which requires only that person facilitate any part–even though not every part–of a criminal venture. (Slip op. at 7-9). “The division of labor between two (or more) confederates thus has no significance: A strategy of you take that element, I’ll take this one would free neither party from liability.” (Slip op. at 8-9). Accordingly, it is not necessary for an aider and abettor of a § 924(c) violation to take any act to advance the use or carrying of the firearm.

As to the intent needed to be an aider and abettor, the Court, relying on the well-known formulation of Learned Hand in United States v. Peoni, 100 F.2d 401 (2nd Cir. 1938), says that “[t]o aid and abet a crime, a defendant must not just ‘in some sort associate himself with the venture,’ but also ‘participate in it as in something that he wishes to bring about’ and ‘seek by his action to make it succeed.’” (Slip op. at 11). The Court has previously found that intent requirement is satisfied “when a person actively participates in a criminal venture with full knowledge of the circumstances constituting the charged offense,” and it concludes the same principle applies here:

…. 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. In so doing, he has chosen … to align himself with the illegal scheme in its entirety–including the use of a firearm. And he has determined … to do what he can to “make [that scheme] succeed.”… (Slip op. at 12-13).

But for this to be true, the defendant’s knowledge must be advance knowledge:

When an accomplice knows beforehand of a confederate’s design to carry a gun, he can attempt to alter that plan or, if unsuccessful, withdraw from the enterprise; it is deciding instead to go ahead with his role in the venture that shows his intent to aid an armed offense. But when an accomplice knows nothing of a gun until it appears at the scene, he may already have completed his acts of assistance; or even if not, he may at that late point have no realistic opportunity to quit the crime. And when that is so, the defendant has not shown the requisite intent to assist a crime involving a gun. (Slip op. at 13).

Given this requirement, the jury instruction in this case was inadequate. It told the jury Rosemond was aiding and abetting if he “knew his cohort used a firearm in the drug trafficking crime,” but did not direct the jury to determine when Rosemond obtained the requisite knowledge. (Slip op. at 3, 17). Because the instruction did not correctly explain that Rosemond needed advance knowledge of a firearm’s presence, the Court remands the case for consideration of whether the error was waived due to a lack of objection and that the error was harmless. (Slip op. at 18).

Justices Alito and Thomas concur in the majority’s general conclusions, but dissent from the majority’s acknowledgement (slip op. at 15-16) that an accomplice who first learns of the firearm well into the commission of the offense may be unable to withdraw. The dissent views this as a “radical step” that “fundamentally alters the prior understanding of mental states” underlying substantive criminal law and places “a strange and difficult burden on the prosecution.” (Concur/dissent at 3). The majority disputes this reading of its opinion. (Slip op. at 16 n.10).

As noted in our post on the cert grant, Seventh Circuit precedent held that a defendant charged with aiding or abetting a violation of § 924(c) must knowingly or intentionally facilitate or encourage the use use of a firearm, and that aiding the under underlying crime knowing that gun would be used wasn’t enough. United States v. Daniels, 370 F.3d 689, 691 (7th Cir. 2004) (per curiam); United States v. Woods, 148 F.3d 843, 848 (7th Cir. 1998). The Court’s contrary holding undoes the Seventh Circuit rule.

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