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“Guilty knowledge” is often the hardest element for the government to prove in a criminal prosecution. For that reason, criminal practitioners pay special attention to changes in the law that impact the evidence admissible on this score. The U.S. Supreme Court decided one such case during this term and was set to hear oral argument in another this week.
In Rosemond v. United States, No. 12-895, the court clarified what the government must prove to convict an individual of aiding and abetting another’s offense. The defendant in Rosemond joined with two confederates to sell a pound of marijuana to two buyers. The sellers allowed the buyers to inspect the marijuana in the backseat of their car at the arranged meeting place. Then, rather than turn over money, the buyers punched one of the confederates in the face, took the marijuana, and ran away. The “would-be drug dealers” (Justice Elena Kagan’s words, writing for the court) exited the vehicle, and one of them pulled a gun and fired shots at the “buyers-turned-robbers.” The government chargedJustus Rosemond with, inter alia, aiding and abetting his confederates’ violations of 18 U.S.C. § 924(c), which states that “any person who, during and in relation to any crime of violence or drug trafficking crime … uses or carries a firearm” shall receive a seven-year mandatory minimum sentence if the firearm is brandished or discharged.
Rosemond argued that he could not be convicted of aiding and abetting a gun crime unless the government could prove that he took “some action to facilitate or encourage his cohort’s use of the firearm.” The government contended, however, and the district court agreed, that it need only prove Rosemond’s active participation in the drug deal and knowledge that his cohort used a firearm during the commission of that crime. Given the record, the government argued, Rosemond’s conviction was almost a foregone conclusion. “The fact is,” the prosecutor told the jury on summation, “a person cannot be present and active at a drug deal when shots are fired and not know their cohort is using a gun.”
As an initial matter, the Supreme Court swiftly rejected Rosemond’s argument that the government must show that he facilitated or encouraged the use of the gun in order to be convicted of aiding and abetting a gun crime. Under common law aiding-and-abetting law, a person can be guilty of a crime if he or she aids or abets any act necessary to constitute the offense, even if that act was “not the whole thing necessary” to prove the crime. Under that approach, Rosemond’s participation in the drug deal was enough to fulfill the affirmative-act requirement for aiding-and-abetting liability.
When the justices dug deeper, though, the decision got more interesting. The court emphasized that, to aid and abet a crime, the defendant must also have intended to advance that crime, not “some different or lesser offense.” As such, Rosemond’s claim that he did not know of his cohort’s gun possession, and therefore that he did not intend to advance a gun crime, could be a valid defense to the aiding-and-abetting charge (if credited by the jury).
The court’s next task—and the only issue upon which any of the justices disagreed—was to define when the defendant must have acquired that knowledge. The court reasoned that, in order for the defendant to “manifest the greater intent” contemplated by the gun-crime law, it must be shown that the defendant chose “to participate in a drug transaction knowing it will involve a firearm.” Therefore, if that “knowledge comes too late for him to be reasonably able to act upon it,” the defendant has not manifested the necessary intent to participate in a gun crime, and therefore cannot be convicted of it, either directly or as an aider-or-abettor.
Justices Samuel Alito and Clarence Thomas argued in their partial dissent that the majority erred in its assessment of when the requisite knowledge must have been gained. The dissenters argued that the court essentially transformed the affirmative defenses of duress and necessity into elements of the charged crime. They contended that, under the court’s ruling, a defendant in a similar case may now argue that, by the time he or she is aware of the cohort’s possession of a gun, there is not a “realistic opportunity” to withdraw where there is a chance the cohort may turn the gun on the defendant or someone else. The government must now apparently disprove that fact, instead of the other way around.
The justices will soon have an opportunity to apply this “foreseeability” test in another context. On Tuesday, the court heard oral argument in the case of Loughrin v. United States, No. 13-316, which addresses the level of proof required to establish intent to defraud a bank. The case asks whether a defendant can intend to defraud a bank when it is not foreseeable that his actions would deprive the bank of any funds.
In Loughrin, the defendant used fraudulent checks to procure merchandise, and then refunds, from his local Target store. Although Target ultimately declined to cash the checks, and although the bank would not have honored them in any case, the government charged the defendant under the federal bank-fraud statute. The defendant argued that he could not be convicted of bank fraud under the relevant statute because the government could not prove that he intended to defraud the bank. Indeed, because Target ultimately bore the financial risk of loss—a point the government conceded—there was no way the defendant could have obtained funds from the bank by fraud, and no way he could have intended to do so. The government countered that it was enough, under the statute, that the defendant intended to defraud someone by directing false statements toward the bank as part of the effort to obtain funds in the bank’s custody or control.
It is difficult to determine whether the decision in Rosemond portends a victory for the defendant in Loughrin. Certainly, Rosemond shows a near-unanimous court embracing a common-sense limitation on criminal prosecutions. That can only help defendants, in general. However, the statute at issue in Loughrin can be read in several ways, only some of which would make the Rosemond decision helpful to the defendant’s position. Taken together, the two cases demonstrate the court’s continued interest in one of the most contentious and consequential aspects of criminal-law practice. A decision in Loughrin is expected in June.
Stephen A. Miller practices in the commercial litigation group at Cozen O’Connor’s Philadelphia office. Prior to joining Cozen O’Connor, he clerked for U.S. Supreme Court Justice Antonin Scalia and served as a federal prosecutor for nine years in the Southern District of New York and the Eastern District of Pennsylvania.
Jordan S. Fox also practices in the commercial litigation group at the firm’s Philadelphia office. He is a graduate of Harvard University and the University of Virginia School of Law.