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Opinion analysis: Justice Kagan writes a primer on aiding and abetting law

The law professor most recently appointed to the Court (Justices Ginsburg, Scalia, and Breyer also shared that prior career) today authored an opinion on a topic that has not been much improved on since Judge Learned Hand wrote in 1938:  the law of “aiding and abetting” or “accomplice liability” – in other words, criminal liability based on helping someone else commit a crime.  To the relief of those of us still teaching law, the Court’s opinion steered a straightforward doctrinal line, and only a small – but not unimportant – point separated the Justices from a unanimous opinion.

The seven-to-two decision presents a field day for first-year criminal law professors, and is undoubtedly vital to the practice of criminal law.  But it will produce few ripples in the larger social debates facing the Court.  The bottom (if not uncomplicated) line is that a criminal helper must have “foreknowledge” of all the elements of the crime he is charged with — and this further means he must have knowledge sufficiently in advance to have some “realistic opportunity to quit the crime.”  Justice Alito (joined by Justice Thomas) disagrees on this last point:  in his view, a defendant who continues with even late-acquired knowledge that he is participating in a crime has sufficient mens rea to be convicted as an accomplice, and the burden should rest on him to prove some defense excusing the crime.

My preview and argument recap noted that Rosemond presented a number of difficult issues, on a relatively simple set of facts.  Without dispute, Rosemond participated with two others in (per Justice Kagan’s typically colorful writing, which I will continue to quote below) “a drug deal gone bad.”  When one of the buyers instead decided to steal the drugs that Rosemond and his compatriots were selling, someone (and significantly, it is disputed who) pulled out a gun and fired at the robbers.  All three “would-be drug dealers,” including Rosemond, then gave chase, but were arrested before their adventure was completed.  Later, Rosemond took the position that he had not been the shooter, and that he did not know a gun would be used (or at least that the government did not prove such knowledge).  Thus the issue of Rosemond’s intent, versus what the law requires, was framed.

The federal government indicted Rosemond for, among other things, “using or carrying a firearm … during and in relation to a … drug trafficking crime,” in violation of 18 U.S.C. § 924(c).  Because this “double-barreled crime” carries a mandatory and consecutive five-year imprisonment term, Section 924(c) has generated an inordinate amount of federal criminal case law over the years.  And in this case, because the government could not perfectly identify which of the three drug-dealers had carried (and fired) the gun, the government added a standard “aiding and abetting” liability theory, invoking 18 U.S.C. § 2:  “whoever … aids” an offense against the United States “is punishable as a principal.”  As the Court notes, “§2 reflects a centuries-old view of culpability: that a person may be liable for a crime he has not personally carried out if he helps another to complete its commission.”

In a statement of “basics” that is a joy to us criminal law teachers – because the Court has not really addressed the topic since Standefer v. United States  some thirty-four years, or more than eleven law school generations, ago — the Court (and all parties) agreed that Section 2 liability has two components: an act, and mens rea.  The government must prove that a criminal helper both (1) committed “an affirmative act in furtherance” of the crime, and also (2) had an “intent to facilitate” the crime.

On the first element, there was no dispute that Rosemond had actively facilitated the drug trafficking offense – but he argued that he had taken “no action with respect to any firearm.”  The Court made quick work of rejecting this claim.  “The common law imposed aiding and abetting liability on a person who facilitated any part – even though not every part – of a criminal venture.”  In other words, a criminal helper need not participate “in each and every element of the offense.”  “All that matters is that [his actions] facilitated one component.”  So, for a “combination crime” like Section 924(c), it doesn’t matter whether Rosemond did anything to “aid” the gun part, so long as he knowingly aided the drug trafficking part.  There is no “you take that element, I’ll take this one” defense to aiding and abetting liability.  Each helper on any single element can be convicted for the entire crime.

But only if the helper also has the requisite mens rea.  That is, even if you only help on one aspect of a crime, you still have to “know” the entire crime that is intended.  Thus someone who knowingly helps a drug trafficking crime, but has no idea that a gun will be used, is saved from conviction for a “drugs plus gun” crime.  This is the point at which the prosecution theory, and the district court’s jury instructions, in Rosemond’s case failed.

As a momentary aside, like any good law review author, Justice Kagan efficiently uses footnotes to put some unpresented questions to one side.  (Interestingly, Justice Scalia without explanation declined to join these two footnotes, numbers 7 & 8).  Thus, whether a defendant must have “knowledge” or “purpose” to facilitate the crime is not clearly answered – and provides the occasion for Justice Alito’s dissent.  Similarly, whether knowledge can be proved by showing that the crime was the “natural and probable consequence” of a defendant’s acts is explicitly undecided.  Finally, the possible liability for an “incidental facilitator” – such as a firearms dealer who knows that some customers will use their purchases for crime – is noted but not resolved.  Thus, thankfully, there is still some fertile ground for hypotheticals with which we practicing law professors can bedevil our students.

Nevertheless, on the mens rea point, today’s decision does make a new contribution to the law of aiding and abetting.  But first, the undisputed law.  All parties agreed that because Section 924(c) has two basic elements – drug deal plus gun — a criminal Section 924(c) helper must have “foreknowledge” that someone will use a gun, and not just that a drug deal is intended.  Unfortunately, the district judge here instructed the jury that it was enough for them to find that Rosemond knew it was a drug trafficking crime and that “his cohort used a gun” – not that Rosemond also knew that his companion would use a gun.  The tense of the verb thus embodies a mens rea error:  “foreknowledge” regarding the gun was not well conveyed to the jury.  (Of course, under various plain error and harmless error doctrines, this error might still not lead to reversal of Rosemond’s conviction.  But those questions are left for remand.)

The Court unanimously rejects Rosemond’s further contention that he must be proved to have “desired” the use of a gun to be convicted.  That he “knowingly elected to aid” with knowledge of a gun is enough – “[t]he law does not, nor should it, care whether he participates with a happy heart or a sense of foreboding.”  (This comes close to deciding the “purpose versus knowledge” issue, but footnote 8, reserving the question of an “inadvertent facilitator,” leaves that murky — and a later footnote (n.10) expressly endorses Judge Learned Hand’s 1938 expression of the standard as convicting an actor who “wishes to bring about” a criminal result, thus further muddying this particular water.)

But most importantly, the majority then further subdivides the question of “foreknowledge,” adopting a standard that requires advance knowledge of a gun “at a time the accomplice can do something” about it.  Justice Kagan is a better writer than I:  Such advance knowledge “enables [the accomplice] to make [a] legal (and indeed moral) choice” – either continue participating, or stop.  “[I]f a defendant continues to participate … after a gun is displayed …, the jury can permissibly infer” that he had the requisite foreknowledge.”  “But when an accomplice knows nothing of a gun until it appears at the scene, … he may at that point have no realistic opportunity to quit the crime.”  When this is so, the majority rules, he lacks the required intent to aid the gun-use, as aiding and abetting doctrine requires.

Here is where Justice Alito parts ways with the majority.  He calls the majority’s “realistic opportunity to quit” standard a “radical” and “unprecedented” change in the doctrine.  Does a drug-deal participant who learns late in the game that his coconspirator has a gun, and then continues on, have sufficient mens rea to be convicted of the drugs-plus-gun crime?  Justice Alito, in his own typically incisive legal style (Kagan vs. Alito is the “Battle of the New Titans,” in my view). says the Court’s answer is “it depends.”  Which indeed seems accurate given that the majority says (in footnote 9) that a jury may infer the requisite knowledge from continuation.  But whereas the majority would likely say only that “that question is for the jury, under proper jury instructions,” Justice Alito says the majority “confuses” motive with intent and thereby “radical[ly]” converts possible affirmative defenses “into a part of the required mens rea.”  Continuing on with a criminal act after gaining full knowledge of the crime should lead to conviction, Justice Alito seems to say, and allowing juries to consider whether that knowledge was gained only after there is “no realistic opportunity” to stop “fundamentally alters the prior understanding of mental states.”

At this point the Court’s two opinions are off to the metaphysical races, one might say, and only the most wonkish law professors will keep reading.  Indeed, I see a number of tenure articles already being drafted as you read this.  But to his credit, Justice Alito – a career prosecutor – instead discusses the “strange and difficult burden on the prosecution” that he envisions.  In his view, shifting a burden of proof from the defendant to the prosecution is not only unprecedented but also impractical, as the prosecution will seldom have dispositive proof on the point.  (The majority would likely respond that, no, the burden to prove requisite mens rea is always on the government – and the metaphysical question of what exactly does constitute the requisite mens rea is again circularly begged.)

Justice Alito ends with some difficult rhetorical questions about how actual trials will go, with the majority’s new rule in place.  These are good questions – and only time will tell.  The Court, and we law professors, keep repeating Learned Hand’s 1938 description of aiding and abetting mens rea because we have not been able to do any better for the better part of a century.  Today’s decision is a valuable contribution to that difficult enterprise, and I thank the Court, and Mr. Rosemond and his creative lawyers, for keeping us law professors in business.

Plain English Summary:

It has always been recognized that individuals who help other individuals commit crimes can be convicted of those crimes.  This is called “aiding and abetting liability.”  So, the law says, if you aid or abet (that means “help”) someone else commit a crime, you can be found guilty of a crime you yourself did not physically do.  Thus if you loan a gun to someone, knowing they intend to use it to rob a bank, and then they rob the bank while you stay home, you can still be convicted of bank robbery.

In this case, Rosemond joined with two other people to sell drugs – but he claimed he didn’t know his companions would use a gun.  Federal law makes it a special crime to commit a drug crime while using a gun, a crime that is sentenced with five extra years in prison than just the drug crime itself.  Today, the Supreme Court ruled that to convict of the drugs-plus-gun crime, the government must prove that Rosemond knew in advance that someone else would use a gun, and at least far enough in advance so that he could, if he chose to, quit the crime.  If Rosemond only learned about the gun when there was “no realistic opportunity” to quit, then he can’t be convicted.  In the words of law, he would lack the “mens rea” – the mental state – required, about the gun to convict.  (Two Justices dissented from this ruling.)

Recommended Citation: Rory Little, Opinion analysis: Justice Kagan writes a primer on aiding and abetting law, SCOTUSblog (Mar. 6, 2014, 9:04 AM),