In order to convict a defendant of aiding and abetting the use of a firearm in relation to a crime of violence or a drug-trafficking crime, does the government need to prove that the defendant intentionally facilitated or encouraged the use of the firearm, or merely that the defendant knew that the principal used a firearm during the crime?
On August 26, 2007, Justus Rosemond and two acquaintances drove to a local park where they planned to sell a pound of marijuana to Ricardo Gonzales and Coby Painter. The deal went awry, and Gonzales and Painter fled with the marijuana without paying. As Rosemond and his cohorts chased after Gonzales and Painter, someone from Rosemond’s car fired a gun at Gonzales. Rosemond was charged with aiding and abetting the use of a firearm in relation to a drug-trafficking crime. The issue before the Court is what level of intent the government must prove. Rosemond argues that he is liable as an accomplice only if he intentionally facilitated or encouraged the use of the firearm. The United States maintains, and the Tenth Circuit ruled, that his knowledge that a cohort used a firearm during the crime is enough to impose accomplice liability. This case raises important concerns regarding the scope of prosecutorial discretion under § 924(c), as well as the burden of proof to establish accomplice liability for aggravating offenses.
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.
This case revolves around a drug deal gone awry. On August 26, 2007, Vashti Perez arranged to meet and sell a pound of marijuana to Ricardo Gonzales and Coby Painter. See United States v. Rosemond, 695 F.3d 1151, 1152 (10th Cir. 2012). The marijuana belonged to Ronald Joseph and Justus Rosemond, the defendant and Petitioner in this case. See id.
That evening, Perez drove Rosemond and Joseph to a local park in Tooele, Utah. See Rosemond, 695 F.3d at 1152. Gonzales and Painter arrived shortly thereafter, and Gonzales entered Perez’s car while Painter waited outside. See id. According to Rosemond, Gonzales inspected the marijuana, exited the car to consult with Painter, and returned to the car intending to steal the drugs. See Brief for Petitioner, Rosemond at 5. After re-entering Perez’s car, Gonzales struck Rosemond in the face, grabbed the marijuana, and fled on foot. See Rosemond, 695 at 1152. Painter fled in the opposite direction. See id. As Gonzales and Painter fled, one of the car’s occupants fired a nine-millimeter handgun in Gonzales’s direction. See id. Perez, Rosemond, and Joseph then pursued them in Perez’s car. See id.
But the pursuit was short lived. See Rosemond, 695 F.3d at 1152. Bystanders reported the shooting to the police, and a state trooper pulled over Perez’s car because it matched the description of the vehicle. See id. The trooper searched the car but found no weapons. See id. at 1153. Joseph later testified that the trooper did not find the handgun because Rosemond had concealed it under the backseat of Perez’s car. See id. at 1153.
A few days later, Perez gave a written statement to the police identifying Rosemond as the shooter. See Rosemond, 695 F.3d at 1153. The United States charged Rosemond with four offenses: (1) possession of marijuana with intent to distribute; (2) using and discharging a firearm during a federal drug-trafficking offense; (3) possession of ammunition by a previously convicted felon; and (4) possession of ammunition by an alien unlawfully in the United States. See id. At trial, Perez contradicted her statement and testified that either Rosemond or Joseph fired the shots. See id. Joseph testified that Rosemond was the shooter. See id.Bystanders, Gonzales, and Painter all testified that one of the car’s occupants fired the shots. See id.
With respect to Count II, the government tried Rosemond on two alternative theories: first, that Rosemond fired the gun, and alternatively, that Rosemond aided and abetted the person who fired the gun. See Rosemond, 695 F.3d at 1152. The jury found Rosemond guilty on all four counts, and the district court sentenced him to three concurrent sentences of 48 months on Counts I, III, and IV, and a consecutive sentence of 120 months on Count II. See id. at 1153. The jury was not required to specify under which theory they convicted Rosemond on Count II. See id. at 1154.
On appeal to the Tenth Circuit, Rosemond challenged his conviction on Count II, arguing that the district court erred with respect to the “aiding and abetting” instruction to the jury. See Rosemond, 695 F.3d at 1154. The jury instruction stated: “[T]o find that the defendant aided and abetted another in the commission of the drug-trafficking crime charged, you must find that: (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.” See id. Rosemond argued that the government was required to prove that he facilitated or encouraged his cohort’s discharge of the firearm, rather than simply proving that he knew his cohort discharged the firearm. See id. at 1155. The Tenth Circuit rejected Rosemond’s argument and affirmed the district court’s decision. See id. at 1156. The Supreme Court granted certiorari on May 28, 2013. Brief for Petitioner at 1; Brief for Respondent, United States at 1.
This case presents the Supreme Court with a circuit split concerning the scope of accomplice liability under 18 U.S.C. § 924(c). Rosemond was charged under 18 U.S.C. § 924(c), which defines certain aggravating offenses that increase the minimum sentence for someone convicted under the federal drug-trafficking statutes. The issue before the Court is the extent to which the defendant can be held liable as an accomplice to a § 924(c) aggravating offense.
COMBATTING VIOLENT CRIME AND BROADENING PROSECUTORIAL DISCRETION
The government argues that it is sufficient to show that Rosemond had simple knowledge that the gun was fired during the commission of the drug-trafficking offense. See Brief for Respondent at 46. The government contends that nothing in the text of § 924(c) indicates that Congress intended to narrow the scope of accomplice liability for the offenses prescribed therein. See Brief for Respondent at 33. According to the government, Congress intended § 924(c) to apply to all persons involved in drug-trafficking crimes, because the statute was designed for the very purpose of “combat[ting] the dangerous combination of drugs and guns.” See id. (citing Muscarello v. United States, 524 U.S. 125, 132 (1998)) (internal quotations omitted).
Rosemond counters that accomplice liability under § 924(c) requires the government to prove that he encouraged or facilitated the discharge of the firearm during the commission of the drug-trafficking offense. See Brief for Petitioner at 13. Amici for Rosemond agree, arguing that the government’s theory of “aiding and abetting” unnecessarily expands prosecutorial discretion. See Brief for Gun Owners Foundation, et al. at 3. The Gun Owners Foundation, the U.S. Justice Foundation, and the Conservative Legal Defense and Education Fund all claim that Congress has faced political pressure to increase the penalties for violating § 924(c). See id. at 15-16. In turn, amici argue, federal prosecutors have sought to take advantage of harsher penalties by making it easier to prove the elements of the statute’s offenses, which encourages prosecutors to bring such charges in the first place. See id. at 16. Amici argue that if the Supreme Court adopts the government’s expansive interpretation, such a low standard of proof will give prosecutors too much power in a system where charging decisions have been shown to influence defendants’ sentences. See id. at 17.
BASICS OF CRIMINAL LAW: ACTUS REUS AND MENS REA
Amici for Rosemond argue that the government’s interpretation of § 924(c) eliminates the two basic requirements of criminal liability: actus reus (voluntary act) and mens rea (requisite mental state). See Brief for National Association of Criminal Defense Lawyers, in Support of Petitioner at 2. The National Association of Criminal Defense Lawyers (“NACDL”) contends that accomplice liability requires the government to prove that Rosemond “participated in and intended to facilitate the entire crime.” See id. at 7 (emphasis in original). However, the NACDL argues that if accomplice liability under § 924(c) only requires proof that the defendant “aided and abetted” the target offense, then a defendant could be convicted without any proof of his use or possession of the firearm. See id. at 12. Similarly, the NACDL argues that a conviction under § 924(c) would not require any proof that the defendant knew about the firearm until after the commission of the target offense – a scenario that would defy basic principles of criminal law. See id. at 13-14. Moreover, under the government’s interpretation, the NACDL imagines that a defendant could be convicted of “aiding and abetting” under § 924(c) if the defendant’s cohort took out a gun while committing the target offense and forced the defendant to perform an act related to that offense. See id. at 14.
The United States responds that no justification exists to exempt criminal defendants from accomplice liability under § 924(c). See Brief for Respondent at 33. The government argues that § 924(c) was designed to “persuade the man who is tempted to commit a Federal felony to leave his gun at home,” as well as “persuade violent criminals to commit their crimes in a less dangerous manner.” See id. at 33–34. According to the government, § 924(c) would lose much of its deterrent effect if groups could commit violent crimes knowing that most participants would avoid the harshest penalties. See id.
In this case, the Court will address a circuit split regarding accomplice liability imposed on defendants charged with aiding and abetting the use of a firearm during a drug-trafficking crime.
Under 18 U.S.C. § 2, “[w]hoever commits an offense against the United States or aids, abets, counsels, commands, or induces or procures its commission, is punishable as a principal.” See Brief for Petitioner at 17. Simply put, 18 U.S.C. § 2 punishes accomplices as if they actually committed the underlying crime. Aiding and abetting requires: (1) that the defendant take an affirmative act to facilitate or encourage commission of the offense he is accused of abetting; and (2) that the defendant intended to facilitate or encourage commission of that offense. See id.at 28.
Rosemond contends that § 2 requires proof that a defendant acted with intentional facilitation or encouragement—as opposed to mere knowledge—in order to be found guilty of aiding and abetting a principal who commits a crime. See id.at 16. Rosemond maintains that the plain meaning of § 2 comports with this interpretation because the words “aid” and “abet” imply some sort of affirmative act by the actor. See id.In addition, Rosemond argues that the historical usage of the terms “aid” and “abet” in the criminal-law context shows that liability requires proof of intentional action by the defendant. See id.at 20-21. For example, in Hicks v. United States, the Supreme Court held that imposing liability for aiding and abetting requires an affirmative act that is performed with the intent to encourage the principal’s act. See id.at 23. Rosemond also claims that in enacting § 2, Congress never signaled any intent to apply additional definitions to the terms “aid” and “abet” other their traditional meanings. See id.at 24. Absent any such indication, Rosemond claims that the Court must apply the plain meaning of the words. See id.
The United States agrees with Rosemond that liability for aiding and abetting requires proof that the defendant “affirmatively acted to facilitate or encourage commission of the offense he is accused of aiding and abetting.” See Brief for Respondent at 14. However, the government argues that a defendant does not have to intentionally act to facilitate or encourage every element of the offense to be guilty of aiding and abetting. See id.at 15. Rather, mere presence at the scene of the crime is sufficient to be convicted of aiding and abetting that crime if the accomplice “knows his presence will be regarded by the perpetrator as an encouragement and protection.” See id.at 24. Thus, the government maintains that the standard for aiding and abetting liability does not rise to the level of intentionally acting to facilitate or encourage the commission of an offense. See id.
Rosemond was convicted of aiding and abetting the use of a firearm in relation to a drug-trafficking crime. See Brief for Petitioner at 6-7. The statute at issue, 18 U.S.C. § 924(c)(1)(A), provides, in part, that “any person who, during and in relation to any crime of violence or drug-trafficking crime . . . uses or carries a firearm . . . , shall, in addition to the punishment provided for such crime of violence or drug-trafficking crime [receive a specified mandatory minimum penalty].” See id. at 32 (quoting 18 U.S.C. § 924(c)(1)(A)).
Rosemond asserts that well-supported legal authority establishes that aiding and abetting a § 924(c) firearm offense requires more than mere knowledge that a firearm was used during a crime of violence or drug-trafficking crime; instead, proof is required that the defendant acted intentionally to facilitate or encourage the use of the firearm. See id. at 27. In support of this claim, Rosemond refers to the traditional definitions of “aid” and “abet,” noting that both terms imply intentional action before liability can be imposed. See id. at 28. Therefore, Rosemond continues, imposing liability for aiding and abetting a § 924(c) firearm offense should naturally require proof that the defendant acted intentionally to facilitate the use of the firearm—not merely that he participated in the underlying drug-trafficking crime. See id. at 33. Because the government presented no evidence that he fired the gun or intentionally encouraged or facilitated its use in any way, Rosemond argues that the government has not met its burden of proof. See id.
The government, on the other hand, contends that Rosemond’s active participation in the underlying drug-trafficking crime sufficiently satisfies the affirmative-act requirement of aiding and abetting the firearm offense. See Brief for Respondent at 25. Whereas Rosemond argues that liability in this case must stem from intent to facilitate or encourage the use of a firearm, the United States maintains that because the commission of a violent or drug-trafficking crime is an essential element of § 924(c), active participation in the underlying offense satisfies the affirmative-act requirement. See id.While it remains disputed whether Rosemond actually used or carried the firearm on the night of the drug deal, the government cites previous rulings by the Court, including United States v. Rodriguez-Moreno and United States v. Plama-Ruedas, to emphasize that liability under § 924(c) stems from a defendant’s active participation in the drug-trafficking crime, not from using or carrying a firearm. See id.at 26.
DOES THE PUNISHMENT FIT THE CRIME?
Rosemond claims that holding a defendant liable as an accomplice under § 924(c) for merely knowing that a firearm was used or carried during a drug-trafficking crime would impose a punishment grossly disproportionate to his actions. See Brief for Petitioner at 45. Here, Rosemond notes that the § 924(c) conviction added ten years to the drug-trafficking conviction, increasing his total sentence from four to fourteen years. See id.Rosemond maintains that this sentence is too severe for someone who merely “sits passively through a transaction” and may not even be aware of a firearm until he hears shots fired. Id.According to Rosemond, the Tenth Circuit’s rule essentially fuses two crimes—the firearm crime and the drug-trafficking crime—into one, making the firearm crime a strict liability one as long as proof exists that the defendant actively participated in the drug-trafficking conduct. See id.at 41.
The United States responds that Rosemond’s punishment is not too severe. See Brief for Respondent at 38. The government observes that Congress passed § 924(c) with the clear intention of strongly dissuading criminals engaged in drug-trafficking conduct from using a firearm during that crime. See id.at 33. According to the government, when Congress drafted § 924(c) it knew that defendants could be liable as accomplices for minor involvement in the firearm offense, yet Congress maintained a severe penalty for such involvement. See id.at 36. Furthermore, the government claims that Rosemond’s argument that an accomplice can become liable even if he becomes aware of the gun after the underlying offense takes place is false. See id.at 38. Rather, the government insists that no § 924(c) accomplice liability will attach if a defendant’s involvement in the underlying drug-trafficking concludes before the gun appears. See id.But here, the government claims, Rosemond’s drug-trafficking conduct was not finished before the gun was brandished and fired, so the imposition of accomplice liability and Rosemond’s subsequent punishment were appropriate. See id. at 38-39.
In this case, the Supreme Court will consider the standard of proof required to convict a criminal defendant of “aiding and abetting” the aggravating offenses set forth in 18 U.S.C. § 924(c). Specifically, the Court will consider whether the government must demonstrate that Rosemond encouraged or facilitated the discharge of a firearm during the commission of a drug-trafficking offense, or whether the government must simply prove that Rosemond had knowledge that a firearm was discharged during the commission of the offense. Rosemond argues that in order to be liable for aiding and abetting the use of a firearm during a drug-trafficking crime, the government must prove he affirmatively acted to encourage or facilitate the use of the firearm. Conversely, the government maintains that Rosemond is liable for aiding and abetting the use of a firearm because he was actively involved in the underlying crime (drug-trafficking), and because he knew that the gun was being used during that crime. The Court’s ruling may influence how often prosecutors bring aiding-and-abetting charges against criminal defendants under § 924(c), how easily prosecutors will be able to satisfy their burden of proof, and the length of prison sentences that such defendants receive.
- Barbara Leonard, Courthouse News Service, Justices to Sort Out Gunshots in Drug Deal, (May 28, 2013).
- University of Virginia Law School, Supreme Court to Hear Federal Gun Law Case from UVA Law School Clinic, (May 29, 2013).