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March 5, 2014

Intriguing SCOTUS mens rea ruling in Rosemond applying 924(c) gun charge

The Supreme Court handed down one criminal justice ruling this morning in Rosemond v. US, No. 12–895 (S. Ct. March 5, 2014) (available here).  Here is the intriguing composition of the Court in this 7-2 ruling:

KAGAN, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, GINSBURG, BREYER, and SOTOMAYOR, JJ., joined, and in which SCALIA, J., joined in all but footnotes 7 and 8.  ALITO, J., filed an opinion concurring in part and dissenting in part, in which THOMAS, J., joined.

Here is how Justice Kagan's opinion for the Court gets started:

A federal criminal statute, § 924(c) of Title 18, prohibits “us[ing] or carr[ying]” a firearm “during and in relation to any crime of violence or drug trafficking crime.”  In this case, we consider what the Government must show when it accuses a defendant of aiding or abetting that offense.  We hold that the Government makes its case by proving that the defendant actively participated in the underlying drug trafficking or violent crime with advance knowledge that a confederate would use or carry a gun during the crime’s commission.  We also conclude that the jury instructions given below were erroneous because they failed to require that the defendant knew in advance that one of his cohorts would be armed.

Here is how Justice Alito's partial dissent gets going:

I largely agree with the analysis in the first 12 pages of the opinion of the Court, but I strongly disagree with the discussion that comes after that point.  Specifically, I reject the Court’s conclusion that a conviction for aiding and abetting a violation of 18 U.S.C. § 924(c) demands proof that the alleged aider and abettor had what the Court terms “a realistic opportunity” to refrain from en­gaging in the conduct at issue. Ante, at 13. This rule represents an important and, as far as I am aware, un­precedented alteration of the law of aiding and abetting and of the law of intentionality generally.

March 5, 2014 at 10:28 AM | Permalink


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The reversal should be clear-cut because the jury instruction was clearly erroneous (it allowed conviction if the defendant first found out about the gun when it was used and did not participate further in the crime). After that, things get interesting. The opinion is uncontroversial (although unhappy for the defendant) for the first 12 pages or so. The rule created does a good job of parsing out the weird nature of the compound crime with the rule that you normally don't have to commit every act, just further the crime.

The point of contention seems to be about this meaningful opportunity not to participate once the defendant obtains knowledge of the firearm. I'm a bit unclear as to what his participation was after the firearm discovery was. Application to these facts might have made the Court's ruling a little more clear. If he was a mere passive participant afterward, the Court's ruling seems completely correct. If he was an active participant, I do agree that the Court is blurring the line with the duress defense. Either way, it's an interesting case and one that would fit neatly under accessory liability in a casebook.

Posted by: Erik M | Mar 5, 2014 1:11:11 PM

I am going to use this case in every 18:2 case I have (which is charged in most substantive offenses) and I going to use this case to undermine the USSG definition of relevant conduct. The scope of "advance knowledge" is certainly less than "reasonably foreseeable."

Posted by: ? | Mar 5, 2014 9:58:26 PM

Scotusblog has an interesting discussion of the ruling along with the note that besides appellate judges, there are multiple former law professors on the Court.

Posted by: Joe | Mar 6, 2014 9:42:50 AM

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