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Justices wrangle over intent for aiding and abetting law

WASHINGTON — During oral arguments Tuesday, the Supreme Court justices tried to nail down just what intent is necessary to establish the federal crime of aiding and abetting the use of a firearm in a violent or drug felony.

The high court is considering whether the government must prove that an alleged conspirator encouraged or facilitated the use of a firearm during the commission of the underlying crime, or merely that he or she knew that a participant in the conspiracy had a gun during the venture.

The stakes are high for defendants facing the aiding and abetting charge under 18 U.S.C. §924(c)(1)(A), one of the most commonly charged federal crimes. The offense carries a mandatory minimum sentence of five years if the firearm is carried, seven years if it is brandished and 10 years if it is fired.

In cases such where the underlying drug crime is relatively minor, a sentence for aiding and abetting often far exceeds the penalty for the predicate offense.

That was true of the case the court heard Tuesday, which stems from a drug deal gone bad. The petitioner, Justus Rosemond, was one of three dealers attempting to sell about $800 worth of marijuana to two buyers. When the buyers grabbed the marijuana and fled without paying, shots were fired in their direction.

Rosemond was convicted and sentenced to two years in prison for the drug offense — and a consecutive 10-year minimum sentence for the aiding and abetting charge.

He appealed, arguing that the jury instruction was faulty because it did not require a finding that he facilitated or encouraged the use of the gun; instead, the jury was instructed to convict if it found he participated in the underlying drug trafficking crime and “knew his cohort used a firearm” during its commission.

The 10th U.S. Circuit Court of Appeals affirmed his conviction, putting it in line with the 6th and D.C. circuits. However, most federal circuits have held otherwise, requiring a finding that a defendant intentionally facilitated or encouraged the use of the firearm.

The Supreme Court took up the case to settle the split.

Parade of hypotheticals

On Tuesday, the justices posed a parade of hypotheticals in an attempt to determine just what must be alleged and proven.

“What does the jury have to find?” asked Justice Anthony Kennedy. “You’re driving the car. You know firearms are being used [by others]. Is that sufficient?”

“It would support a verdict,” replied John P. Elwood, a partner in the Washington office of Vinson & Elkins LLP, who represented Rosemond.

Justice Antonin Scalia pressed further.

“This man hates firearms,” Scalia hypothesized. “There is no way he would ever thing of using a firearm. But he knew” his cohorts intended to do so.

Elwood said the statute requires that “at the time you are still participating in the underlying offense, you know that a gun is being used [and] you intend to facilitate that use.”

Kennedy noted that under his earlier hypothetical, a jury could find that driving the car constituted facilitation.

“But the jury can easily conclude that there was no facilitation,” Elwood said, pointing out that the instant case was easier than Kennedy’s proffered scenario because there was no previous knowledge on Rosemond’s part that a gun would be used.

Justice Ruth Bader Ginsburg asked whether the reason it makes a difference was the potential 10-year sentence boost that comes with the aiding and abetting conviction.

“The reason it makes a difference is that it is a different crime,” Elwood replied.

Stringent interpretation?

John F. Bash, assistant to the U.S. solicitor general, argued that the defendant is urging an interpretation of §924(c) that is far more stringent that the text of the statute requires.

“What Mr. Elwood is asking for is [a requirement of] intent for the crime to succeed,” Bash said. Such an interpretation, he said, would wipe out liability in crime-for-hire cases where an abettor is only interested in the pay he or she will receive, not the success of the crime.

“That’s a very fanciful hypothetical,” said Chief Justice John G. Roberts Jr., pointing out that even criminals for hire want the crime they are aiding and abetting to succeed if failure means getting caught.

Ginsburg wondered if the government’s interpretation was too sweeping.

“Your position seems to be that all you have to prove is an intent to commit the predicate offense,” Ginsburg said. “To get 10 years of your life for no more than the predicate crime is a bit much.”

Ginsburg asked whether aiding and abetting liability was even possible in the instant case.

“Can you explain how the gun abetted a drug deal?” Ginsburg asked. “The drugs were stolen. They were not engaged in any attempt to sell the drugs” when the gun was fired.

Bash said Congress intended to punish actors who make already dangerous situations potentially deadly ones by adding firearms.

“This is a statute about the mix of guns and drugs and the mix of guns and violence,” Bash said.

The case is Rosemond v. U.S., S.Ct. No. 12-895. A decision is expected later this term.