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By Burt Rose

The SUPREME COURT OF THE UNITED STATES has decided the case of JUSTUS C. ROSEMOND, PETITIONER v. UNITED STATES, No. 12–895 [March 5, 2014]. JUSTICE KAGAN delivered the opinion of the Court which reversed the ruling of the 10th Circuit, 695 F. 3d 1151.

Title 18 §924(c) prohibits using or carrying a firearm “during and in relation to any crime of violence or drug trafficking crime.” In this case, the Court considered what the Government must show when it accuses a defendant of aiding or abetting that offense. The Court held 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. In this case 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.

An aiding and abetting conviction requires not just an act facilitating one or another element, but also a state of mind extending to the entire crime. Therefore, a defendant may be convicted of abetting a §924(c) violation only if his intent reaches beyond a simple drug sale, to an armed one. The intent must go to the specific and entire crime charged—here, to the full scope (predicate crime plus gun use) of §924(c). An active participant in a drug transaction has the intent needed to aid and abet a §924(c) violation when he knows that one of his confeder­ates will carry a gun. In such a case, the accomplice has decided to join in the criminal venture, and share in its benefits, with full awareness of its scope—that the plan calls not just for a drug sale, but for an armed one. He may not have brought the gun to the drug deal himself, but because he took part in that deal knowing a confederate would do so, he intended the commission of a §924(c) offense—i.e., an armed drug sale. Thus the §924(c) defendant’s knowledge of a firearm must be advance knowledge; the statute is not applicable when the accom­plice knows nothing of a gun until it appears at the scene.

The District Court must instruct the jury that the defendant’s active participation in a drug sale is sufficient for §924(c) liability, even if the conduct does not extend to the firearm, so long as the defendant had prior knowledge of the gun’s involvement. Here, the instruction was deficient so the case was remanded to the Tenth Circuit.


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