Court sheds light on aiding and abetting standard

By Kimberly Atkins
The Daily Record Newswire
WASHINGTON, DC — In its ruling in Rosemond v. U.S. that accomplice liability requires advance notice and the opportunity to withdraw, the U.S. Supreme Court tightened the standard the government must meet for a conviction under one of the most commonly used federal aiding and abetting statutes on the books.

But it also provided the most detailed analysis of aiding and abetting liability in decades, which will likely serve as guidance for judges and attorneys in cases involving other state and federal complicity laws.

“It’s the court’s clearest pronouncement of aiding and abetting liability in decades,” said John P. Elwood, a partner in the Washington office of Vinson & Elkins LLC and an instructor at the University of Virginia School of Law Supreme Court Litigation Clinic, which successfully represented the defendant. “The justices hadn’t really said anything about it since the 1930s.”

“It is always interesting when a Supreme Court decision refers to Judge Learned Hand,” added E. Brantley Webb, a litigation associate in the Washington office of Mayer Brown LLP who co-authored an amicus brief on behalf of the National Association of Criminal Defense Lawyers. “It’s been a long time since there has been a decision really defining what aiding and abetting really means.”

The case centered on the issue of intent. The defendant, Justus Rosemond, was charged with a number of drug offenses in addition to the federal crime of aiding and abetting the discharge of a firearm under 18 U.S.C. §924(c)(1)(A).

The offense is one of the most commonly charged federal crimes and can lead to the addition of a steep sentence that usually exceeds that for the underlying drug charge, because the statute carries a mandatory minimum sentence of five years if a firearm is carried during commission of a crime, seven years if the gun is brandished and 10 years if it is fired.

Rosemond was allegedly one of several people attempting to sell marijuana to two individuals.

That plan went awry when the buyers stole the drugs and fled, leading the alleged sellers to give chase. During the incident shots were fired toward the
fleeing thieves, although it is unclear who fired the shots.

At trial, jurors were instructed to find Rosemond guilty on the 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 received a 10-year minimum sentence to run concurrently with a two-year sentence for the underlying drug crime.

On appeal, he argued that the jury instruction was erroneous because it did not require a finding that he facilitated or encouraged the use of the gun. The 10th U.S. Circuit Court of Appeals affirmed the conviction, finding that encouragement or facilitation was not a necessary element for liability under §924(c).

With the circuits split on the issue, the Supreme Court took up the case, and in a 7-2 ruling found that the instruction was erroneous.

In a scholarly examination of aiding and abetting liability that would make most lawyers recall their first-year law school criminal law class, Justice Elena Kagan carefully walked through common law principles of accomplice liability in the court’s majority opinion.

Ultimately, the court held, the statute at issue requires proof that 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.

“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,” Kagan wrote. “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.”

In a partial dissent Justice Samuel A. Alito Jr., joined by Justice Clarence Thomas, objected to the majority’s requirement that the aider and abettor have “a realistic opportunity” to refrain from engaging in the prohibited conduct.

“This rule represents an important and, as far as I am aware, unprecedented alteration of the law of aiding and abetting and of the law of intentionality generally,” Alito wrote.

Though the court has rarely taken up the issue of accomplice liability, disagreement among the justices — including among those in the majority — on the specifics of the analysis could mean they will tackle it again to hammer out their differences.

For example, Justice Antonin Scalia declined to join Kagan’s comments in footnotes 7 and 8, in which she stated that the court was expressing no opinion on exceptions to the rule involving the “natural and probable consequence” of participating in a crime or incidental facilitation. That drew the attention of some attorneys watching the case, who point out that the justices rarely, if ever, decline to join a pronouncement of what the court was not ruling on.

“Perhaps Justice Scalia does have a strong opinion with respect the two issues expressed in those footnotes,” said John Malcolm, Director and Senior Legal Fellow at the Heritage Foundation in Washington. “We may never know the answer, however, since Justice Scalia declined to state why he would not join the two footnotes or what his opinion on those two issues might be.”

Webb said that the advance notice requirement adopted by the court is an “important safeguard.”

What is less clear, he said, “is how this will play out on the ground” when it comes to the requirement that the defendant have an opportunity to withdraw and decline to do so.

“The question of proof on that element will be tricky,” Webb said. “But it is clear that will be a very commonly asserted defense.”

For Elwood, the case represents the exact kind of issue the Supreme Court Clinic searches for.

“We are always looking for interesting cases where there is a clear split among the courts,” he said. “Often the [the students] locate them, but this one I found myself.”

Elwood said he reached out to Rosemond’s existing lawyers, and after reading the trial transcripts offered to spearhead the appeal, either with the law school clinic or on his own if the clinic didn’t take the case.

It’s “a great little saga,” he said.

Elwood said the trial record makes it clear that the defendant was not the shooter and therefore highlights the problem with a broadly-reaching definition for the aider and abettor intent requirement.

He added that Rosemond is still in prison awaiting remand of the case to the lower court. He has already served the sentence for the underlying drug crime, so he’s hoping to be released. But that outcome is not a certainty.

“Even if we win here, [the court must review] under the plain error standard, and then it is up to the government to decide whether to try him again,” Elwood said. “It’s frustrating to him.”


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