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Rosemond v. United States, USSC No. 12-895, cert granted 5/28/13

Question presented:

Whether the offense of aiding and abetting the use of a firearm during and in relation to a crime of violence or drug trafficking crime, in violation of 18 U.S.C. §§ 924(c)(1)(A) and 2, requires proof of (i) intentional facilitation or encouragement of the use of the firearm, as held by the First, Second, Third, Fifth, Seventh, Eighth, Ninth, and Eleventh Circuits, or (ii) simple knowledge that the principal used a firearm during a crime of violence or drug trafficking crime in which the defendant also participated, as held by the Sixth, Tenth, and District of Columbia Circuits.

Lower court opinion: United States v. Rosemond, 695 F.3d 1151 (10th Cir. 2012)


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A case important to lawyers handling federal criminal cases, for as the Question Presented makes clear, it will resolve a split in the federal circuits as to the requirements of 18 U.S.C. §§ 924(c)(1)(A) and 2. Those provisions require a minimum 5 years of imprisonment for aiding or abetting a crime of violence or a drug trafficking crime while using or carrying a firearm (7 years if the gun is brandished, 10 years if discharged). The Seventh Circuit is among the majority of courts holding that the defendant must knowingly or intentionally facilitate or encourage the principal actor’s use of the firearm; facilitation or encouragement of the underlying crime is not 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 case under review comes from the Tenth Circuit, which takes the minority view that it is enough for the defendant to have participated in the underlying crime knowing his or her confederate used a firearm. The difference between the two rules may not mean much in practice in many cases; as Daniels notes:

We have stated that “‘[o]nce knowledge on the part of the aider and abettor is established, it does not take much to satisfy the facilitation element.'” Woods, 148 F.3d at 848 (quoting United States v. Bennett, 75 F.3d 40, 45 (1st Cir. 1996)). Woods provides several examples of conduct that will satisfy the facilitation element, including transporting the principal and firearm to the scene of the crime, encouraging others to use a gun in the commission of the underlying crime, and benefitting from the use of a gun.

Nonetheless, if the Supreme Court adopts the minority view, it will change the rule in this circuit.

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