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Argument preview: Law school hypos about criminal law mens rea

At 10:00 a.m. on Tuesday, November 12, the Court will consider a philosophical question that has troubled the criminal law for centuries: what mens rea (mental state) is required to prove “aiding and abetting” liability?   The question in Rosemond v. United States arises under 18 U.S.C. § 924(c), the federal law that provides significant mandatory minimum imprisonment terms for carrying, using, brandishing, or discharging a firearm during and in relation to a narcotics offense.  Arguing for petitioner Justus Rosemond, seeking to overturn his conviction, will be John P. Elwood, a former Assistant to the Solicitor General who is now a partner in the Washington, D.C., office of Vinson & Elkins.  Arguing for the federal government will be Assistant to the Solicitor General John F. Bash.


It has long been the law that an “aider and abetter” – one who helps a principal actor commit a crime – is “punishable as a principal.”  Congress incorporated this common law principle into federal law in 1909, and it is commonly alleged as an alternative theory for conviction in every substantive count in a federal criminal indictment.  Tuesday’s arguments about the mens rea necessary to prove aiding and abetting liability are likely to revive memories, pleasant or otherwise, of the abstractions and hypotheticals of your first-year criminal law class.

In this case, the government charged Rosemond with (among other things) a substantive violation of 18 U.S.C. § 924(c), on the theory that he was the shooter in a marijuana sale gone wrong one balmy August evening in Utah.  But the government also alleged that, if Rosemond was not the actual shooter, then he was along on the drug deal with the shooter – that is, that he was an “aider and abetter” to the carrying and discharge of a firearm during the drug deal.  Rosemond argued (but did not testify) that he had not known the shooter would use a gun and had done nothing to further the gun’s use, even if he did aid the drug deal.  Thus he asked the court to instruct the jurors that, to convict him as an aider and abetter, they must find that “the defendant intentionally took some action to facilitate or encourage the use of the firearm.”

The district court, however, consistent with Tenth Circuit precedent, instructed that the jury must find that “(1) the defendant knew his cohort used a firearm and (2) the defendant knowingly and actively participated in the drug trafficking crime.”  The jury convicted Rosemond on the Section 924(c) charge, leading to a mandatory, consecutive, ten-year sentence (in addition to four years on other counts).     Because there are no “special” verdicts in criminal cases – it’s just “guilty” or “not guilty” — the Court must now assume that the jury relied on the aiding and abetting theory to convict.  Thus, the jury instructions on aiding and abetting are at issue in this case, and the Tenth Circuit upheld instructions that appear to present a clear and persistent circuit split: whether a high level of intent, or “purpose,” is required to prove aiding and abetting liability, or whether “mere knowledge” is enough.

The questions presented

The italicized words in the foregoing two jury instructions (proposed and actually given) set out the two issues Rosemond now presents to the Court: (1) whether the government must show that an aider and abetter “intended” to facilitate the gun crime or instead that he merely “knew” a cohort used a gun; and (2) whether the government must show that the aider and abetter facilitated “the use of the gun” or simply aided “the drug trafficking.”  The circuits have split on these questions — Rosemond says eight to three in his favor, although the Solicitor General disagrees on the exact count.

Given the distinct circuit split, the case also presents a subsidiary question:  whether the Court can resolve the split by stating a uniform rule for federal aiding and abetting liability, but at the same time leave Rosemond’s conviction in place, or whether the trial court’s jury instruction, if it was wrong, also requires reversal of Rosemond’s individual case.  On this last question, the government presents a number of “harmless,” “plain,” or “waived” error arguments – although it too failed to explicitly preserve some points.  The most powerful may be that that the jury’s conviction on another count, one that charged possession of ammunition and for which there was no alternative “aiding” theory, necessarily means that the jury concluded that it was Rosemond who actually possessed the gun.  But Rosemond presents some compelling arguments against this last point – such as that a “constructive possession” theory was given to the jury for the ammunition. Although I won’t further pursue this issue here, the Justices are likely to inquire about it.

Oral and other arguments

The highly abstract nature of the parties’ arguments in this case will either intrigue or bore the Justices – or more likely, intrigue some while boring others.  While first-year law school routinely teaches that all criminal liability requires both a criminal “act” and some “mens rea,” the precise standard for aiding and abetting liability has always been a murky one.  Perhaps necessarily so – the innumerable hypotheticals that can be imagined which present “shades” of mens rea, or intent, defy simple categorization.

Judge Learned Hand wrote, in an oft-quoted 1938 decision, that to be convicted of aiding and abetting, a defendant must “in some sort associate himself with the [criminal]venture, . . . participate in it as something that he wishes to bring about, [and] . . . seek by his action to make it succeed.”  Seventy-five years later, this statement is still routinely relied upon to describe aiding and abetting mens rea, because (it seems) no one can do better.  Many theorists read the italicized words, and the common law crime, to convey some requirement of “purpose” or intent.  Thus most courts (and the Model Penal Code) have ruled that a criminal helper must “intend” or have a “purpose” to be liable.  Yet a number have also ruled, on specific and severe facts, that mere “knowledge” of the principal actor’s plan, plus some act of assistance, is sufficient.

Even so, whether this general idea means only that knowledge can sometimes prove “purpose” or, instead, that “mere knowledge” plus assistance is sufficient without “purpose,” has never been uniformly clear.  The authorities in existence in 1909, when the federal statute was adopted, do not answer the question precisely – and this case presents only a question of statutory interpretation, not constitutional rule.  (Perhaps Rosemond should win based solely on his ability to work Fleming’s Holinshed’s Chronicles from 1587 into his brief!)

Rosemond argues first that the statute as applied to the Section 924(c) crime requires the government to prove that he intentionally aided the use of a gun.  But the government effectively responds that authorities are legion that even “minimal” aid to any part of the offense can suffice to make one an aider and abetter.  Thus, someone who drives robbers to a bank can be liable for armed bank robbery, even if the armed robbers rode in a separate car, so long as the driver knew that armed robbery was contemplated.  In this sense, “knowledge” that guns will be used, plus aiding the robbers you know will use the guns, suffices to prove the “intentional facilitation” that is required for the overall crime.

But Rosemond’s second argument – and the one that the case appears to boil down to – is far more difficult.  Indeed, it may well be a winner.  He argues, as most of the circuits have ruled, that “purposeful” assistance is required.  That is, while only minimal aid may suffice to make one a criminal helper, that aid must be given with “purposeful intent.”  Interestingly, the Solicitor General’s brief does not provide its substantive response to this argument until page 42 of its brief.  (And even then, the Solicitor General first contends that the “intent” argument was “forfeited” by not being clearly preserved below.  But as Rosemond’s reply notes, the federal government itself has waived this procedural argument by not making it in its certiorari opposition.  There may be some battling at oral argument about which side has more egregiously failed to preserve its points, but the Court has granted cert. to resolve a circuit split, not to leave it lingering.)

Ultimately appearing to recognize that the district court’s instruction was poorly phrased (saying that knowledge that the principal “used” a gun, as opposed to “would use” a gun, would suffice), the Solicitor General argues that the jury instructions “sufficiently conveyed” the appropriate mens rea standard.  But the Solicitor General repeatedly seems to agree that the government must prove aid that is rendered by a helper while “knowing that [his cohort] will use a firearm” to commit the crime – a subtle but essential distinction from the instruction actually given here.  The Solicitor General’s statement seems to be a variant on the “knowledge plus aid can sometimes prove ‘purpose’” position – which would seem to condemn the simple “knowledge plus participation” instruction given in this case.  Nevertheless, the government musters some powerful hypotheticals of its own, and I would expect the Justices to present so many hypotheticals at oral argument – beware the three-page hypo from Justice Breyer! – that observers’ heads will spin.

The only other remarkable aspect of this case is that it is not often that the National Association of Criminal Defense Lawyers (NACDL) is joined as an amicus by the Gun Owners Foundation.  But both have filed in support of Rosemond.  The latter group sees the government’s “lower” mens rea standard as “unwisely … expand[ing] prosecutorial discretion in the administration of” federal firearms laws.  Such synchronicity may sweep some Justices into the arms of others not normally found linked in a criminal case.

Recommended Citation: Rory Little, Argument preview: Law school hypos about criminal law mens rea, SCOTUSblog (Nov. 11, 2013, 1:39 PM),