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A new look at aiding and abetting

Joe and Larry go to make a drug deal.  The buyer carefully inspects the pound of marijuana Joe and Larry intend to sell him, but instead of paying for it, he punches Larry in the face, grabs the drugs, and takes off running.  Joe pulls out a gun and fires off a couple of shots at the fleeing would-be buyer, and that's when the cops show up.  Joe's charged with drug trafficking and felonious assault, each with a three-year firearm specification, and so is Larry.  After all, even though Larry didn't have the gun or fire the gun -- he may not have even known Joe had a gun until he discharged it -- he was an accomplice to the crime. 

Maybe not.

Justus Rosemond found himself in just that situation, except he wasn't looking at the three years prison sentence for the firearm specification.  He was prosecuted under 18 USC 924(c), which prohibits using or carrying a gun during a drug trafficking crime, and his conviction of that added ten years to his ultimate sentence.  Last week, in Rosemond v. US, the Supreme Court reversed.

Now, I know you're scratching your head and saying, "Gee, Russ, while this might be of interest to federal practitioners, what does it have to do with Ohio law?  And why are you engaging in the time-worn literary conceit of pretending to have a dialogue with your readers?"

Damned if I know the answer to the last one, but Kagan's opinion for the Court raises some possibilities for the first.  Because she doesn't decide the case on the basis of statutory interpretation, but rather on an analysis of the common-law principles of aiding and abetting.

As you remember from law school (sure you do), every crime consists of the actus reus and the mens rea:  the criminal act and the intent to commit it.   There's no problem with Rosemond's culpability of the act.  The common law has long held that a defendant can be convicted of aiding and abetting without participating in every element of the crime.  You can be convicted of mail fraud even if you only prepared the documents, and somebody else mailed them.  Rosemond unquestionably satisfied 924(c)'s element of participating in a drug transaction; the government did not need to establish that he assisted in the possession or use of a firearm.

But that's when we come to intent, and as Kagan notes, the common law requires that "a person actively participates in a criminal venture with full knowledge of the circumstances constituting the charged offense."

When an accomplice knows beforehand of a confederate's design to carry a gun, he can attempt to alter that plan or, if unsuccessful, withdraw from the enterprise; it is deciding instead to go ahead with his role in the venture that shows his intent to aid an armed offense. But when an accomplice knows nothing of a gun until it appears at the scene, he may already have completed his acts of assistance; or even if not, he may at that late point have no realistic opportunity to quit the crime.  And when that is so, the defendant has not shown the requisite intent to assist a crime involving a gun.

Obviously, Rosemond is good news for lawyers defending clients on 924(c) charges.  But does it extend farther?  Can it be applied to Ohio crimes involving the use of a gun, like aggravated robbery with a deadly weapon, or to firearm specifications? 

There's some potential here.  As I said, this isn't about statutory interpretation.  Kagan's opinion contains no parsing of the words of the statute, no exposition on congressional intent.  It's all based on common law principles, and those apply just as easily to Ohio statutes as to Federal ones.  No, we don't have common law crimes in Ohio, but we do use common law principles of aiding and abetting and intent.

There are problems, too.  First, the use of a gun is virtually inherent in some crimes.  Arguing that your client didn't know that any of his accomplices in a bank robbery would be carrying a gun is very probably a forlorn endeavor.  And, in the example above, evidence that Larry knew Joe usually carried a gun would probably go a long way toward establishing Larry's foreknowledge that Joe would bring it to a drug deal, and use it if things went south.

You might also run into the problem of applying Rosemond to a firearm specification in light of the Ohio Supreme Court's decision in State v. Ford.  As I explained a few years back, the issue in Ford was whether a firearm specification could be attached to a crime that specifically required the use of a firearm, in that case, discharging a firearm into a habitation.  Ford had argued that the firearm specification was an allied offense to the underlying crime, and should have merged with it.  The court avoided that result by deciding that the specification was a "penalty enhancement," not an offense.  That doesn't necessarily eliminate the applicability of Rosemond, but it does muddy it.

In the context of crimes involving the use of a gun, though, Rosemond is an argument you might want to make.  There are a number of crimes -- felonious assault, aggravated burglary, aggravated robbery -- which involve the use of a deadly weapon, most commonly, at least for purposes of culpability for aiding and abetting, a firearm.  If Larry didn't know that Joe had a gun, can he be convicted of felonious assault because Joe used one?

It's worth a shot -- no pun intended -- and Rosemond's definitely worth a read.


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