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Argument recap: A likely win for the aider and abetter who lacks purpose

After yesterday’s argument in Rosemond v. United States, previewed here, it seems that the only question is how broadly the Court will rule in Rosemond’s favor.  The Justices seemed unanimous that the particular “aiding and abetting” jury instruction given in this case was wrong – it failed to require “foreknowledge” that a gun would be used, before convicting Rosemond of aiding the federal crime of using a firearm during and in relation to a drug trafficking crime (18 U.S.C. § 924(c), the “crime with a long name” as Rosemond’s counsel John Elwood noted).  The more important question, for lower courts, is whether, and if so precisely how, the Court will write more broadly on the general questions presented.

You may recall that Mr. Rosemond was in a car with two other persons, all attempting to sell a pound of marijuana.  The titular buyer, however, instead ran off with the weed.  At that point, two men got out of the car, and one (and only one) fired a gun in the direction of the thief.  Both men then jumped back in and drove away.  The government’s primary theory was that Rosemond was the shooter.  But various witnesses disputed the shooter’s identity, so the government also alleged that even if Rosemond was not the shooter, he was in any case an “aider and abetter” (who is “punishable [the same] as a principal” under federal law, 18 U.S.C. § 2).

On this aiding and abetting theory, Rosemond asked that the jury be instructed that it must find that he “intentionally … facilitate[d] … the use of the firearm” to convict.  But the court instructed, instead, that the jury need find only that Rosemond “knew his cohort used a firearm” and that Rosemond “actively participated in the drug crime.”  Rosemond’s attack on this instruction now presents two questions: (1) is “simple knowledge” enough to convict of aiding and abetting, or is “purpose” required; and (2) must the defendant be found to have intended the use of the gun, or just the underlying narcotics crime?

Both of these questions present quite complicated and semantically difficult “thought experiments.”  Moreover, it is fair to say that the positions of both sides have “evolved” and been refined through the cert. stage, the merits briefing, and even in yesterday’s argument, such that their positions on details remain difficult to pin down.  Or perhaps precise instructions on aiding and abetting simply defy “pinning down” in any general language way.  But because the Court’s opinion will affect all federal Section 2 cases, and not just Rosemond or Section 924(c), it is quite important.

Both parties now agree that “foreknowledge” of the use of a gun should be required; Rosemond therefore says that the past tense (“used” a gun) was reversible error.  The federal government argues only that “in context” the instruction was clear enough – it requires only a “slight tweak” — and Rosemond’s failure to object to it specifically means the Court should review only for “plain error.”  But Justice Kennedy, whose vote is usually crucial, twice indicated that the instruction was “inaccurate” and “misleading” on this point.  No Justice appeared to disagree.

Thus it seems likely that Rosemond will win reversal on this narrow point.  But there is far more that might be said about the common law crime of aiding and abetting.  The question is, will the Court attempt to say it?

First, must a defendant so accused actually intend the use of a gun, or just aid the drug deal knowing that a gun “will be” used?  The general rule is that a helper need not aid every element of a crime to be criminally liable; even minimal assistance can lead to conviction, if “purpose” to see the overall crime succeed is also proved.  Thus on this argument (“he must intend the gun specifically”), Rosemond appeared to find less support: aiding a drug deal while knowing that firearms will be used seemed to satisfy the Court — and at times, even Rosemond’s counsel.  The reason for this, it appeared, is that all parties also now seem to accept the view, for at least some hypotheticals, that “knowledge plus assistance” can sometimes prove “purpose.”  But this is distinct, and should remain distinct, from saying that knowledge is sufficient without purpose.

Indeed, the hypotheticals were flying fast and furious from the second page of the fifty-five-page transcript, with Rosemond’s counsel speaking only one carefully crafted sentence before Justices Kennedy and Scalia dug in.  And Justice Alito asked the most entertaining hypothetical, involving an armed robbery in which one eloquent helper says “I want it noted for the record that I’m opposed to the use of a gun.”  But Justice Alito was likely satisfied with Elwood’s response: “It doesn’t depend on what the person says. It depends on what the person does.”  However, jury instructions need to convey the theoretical distinction clearly.

Assistant to the Solicitor General John Bash did a yeoman’s job of trying to defend the district court’s instruction, as well as the Tenth Circuit’s rule that “knowledge plus participation” is enough.   Unfortunately, he was saddled with a flawed instruction and the weight of authority (eight circuits) against him.  The hypotheticals that Bash offered seemed to fall flat before the Justices; although they paid respectful attention, sometimes when a lawyer gets to speak long paragraphs at the Court, it is because the Justices have lost interest in his or her position.  Chief Justice Roberts sparred briefly regarding how various facts can show “purpose,” and Justice Sotomayor noted the “practical[] … difficulties” the government often faces in proving intent.  And Justice Kagan offered a difficult hypo: what if a helper doesn’t know about a gun until the drug deal is already underway – must he stop immediately or be liable for aiding the gun crime?  When Bash said yes, “that is enough,” the Justices appeared finished with throwing him potential life lines.

Bash appeared to sit down early, and in rebuttal Justice Breyer asked Elwoood only for case citations.  Elwood also ceded the remainder of his time – an unusual event for a criminal defendant’s counsel before this very active Court.

While the result does not appear in doubt, Justice Sotomayor put the hardest question succinctly: “What would the [proper] instruction look like?”  This is a very difficult question to answer, and I would not be surprised if the Court declines to attempt any new formulation.  Instead, the Court may once again confirm that no one really has said it better than Judge Learned Hand did in 1938, when he noted that “the substance of that formula goes back a long way” and traced authorities back to 1557.   “[A]ll demand that [the aiding and abetting defendant] in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed.  All the words used — even the most colorless, ‘abet’ — carry an implication of purposive attitude.”  Beyond that, we trust to juries to separate the criminally purposeful from those who merely know but don’t “intend” the crime.  At some point, semantics fail where common sense prevails.

Recommended Citation: Rory Little, Argument recap: A likely win for the aider and abetter who lacks purpose, SCOTUSblog (Nov. 13, 2013, 2:49 PM),