Rosemond v. United States
Rosemond v. United States
Opinion
*67 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.
I
This case arises from a drug deal gone bad. Vashti Perez arranged to sell a pound of marijuana to Ricardo Gonzales and Coby Painter. She drove to a local park to make the exchange, accompanied by two confederates, Ronald Joseph and petitioner Justus Rosemond. One of those men apparently took the front passenger seat and the other sat in the back, but witnesses dispute who was where. At the designated meeting place, Gonzales climbed into the car's backseat while Painter waited outside. The backseat passenger allowed Gonzales to inspect the marijuana. But rather than handing over money, Gonzales punched that man in the face and fled with the drugs. As Gonzales and Painter ran away, one of the male passengers-but again, which one is contested-exited the car and fired several shots from a semiautomatic handgun. The shooter then re-entered the vehicle, and all three would-be drug dealers gave chase after the buyers-turned-robbers. But before the three could catch *68 their quarry, a police officer, responding to a dispatcher's alert, pulled their car over. This federal prosecution of Rosemond followed. 1
The Government charged Rosemond with,
inter alia,
violating § 924(c) by using a gun in connection with a drug trafficking crime, or aiding and abetting that offense under § 2 of Title 18. Section 924(c) provides 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 five-year mandatory-minimum sentence, with seven- and ten-year minimums applicable, respectively, if the firearm is also brandished or discharged.
Consistent with the indictment, the Government prosecuted the § 924(c) charge on two alternative theories. The Government's primary contention was that Rosemond *1244 himself used the firearm during the aborted drug transaction. But recognizing that the identity of the shooter was disputed, the Government also offered a back-up argument: Even if it was Joseph who fired the gun as the drug deal fell apart, Rosemond aided and abetted the § 924(c) violation.
The District Judge accordingly instructed the jury on aiding and abetting law. He first explained, in a way challenged by neither party, the rudiments of § 2. Under that statute, the judge stated, "[a] person who aids or abets another to commit an offense is just as guilty of that offense as if he committed it himself." App. 195. And in order to aid or abet, the defendant must "willfully and knowingly associate[ ] himself in some way with the crime, and ... seek[ ] by some act to help make the crime succeed."
Id
., at 196. The
*69
judge then turned to applying those general principles to § 924 (c) -and there, he deviated from an instruction Rosemond had proposed. According to Rosemond, a defendant could be found guilty of aiding or abetting a § 924(c) violation only if he "intentionally took some action to facilitate or encourage the use of the firearm," as opposed to the predicate drug offense.
Id
., at 14. But the District Judge disagreed, instead telling the jury that it could convict if "(1) the defendant knew his cohort used a firearm in the drug trafficking crime, and (2) the defendant knowingly and actively participated in the drug trafficking crime."
The jury convicted Rosemond of violating § 924(c) (as well as all other offenses charged). The verdict form was general: It did not reveal whether the jury found that Rosemond himself had used the gun or instead had aided and abetted a confederate's use during the marijuana deal. As required by § 924(c), the trial court imposed a consecutive sentence of 120 months of imprisonment for the statute's violation.
The Tenth Circuit affirmed, rejecting Rosemond's argument that the District Court's aiding and abetting instructions were erroneous.
2
The Court of Appeals acknowledged
*70
that some other Circuits agreed with Rosemond that a defendant aids and abets a § 924(c) offense only if he intentionally takes "some action to facilitate or encourage his cohort's use of the firearm."
We granted certiorari, 569 U.S. ----,
II
The federal aiding and abetting statute,
*71
We have previously held that under § 2"those who provide knowing aid to persons committing federal crimes, with the intent to facilitate the crime, are themselves committing a crime."
Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N. A.,
The questions that the parties dispute, and we here address, concern how those two requirements-affirmative act and intent-apply in a prosecution for aiding and abetting a § 924(c) offense. Those questions arise from the compound nature of that provision. Recall that § 924(c) forbids "us[ing] or carr [ying] a firearm" when engaged in a "crime of violence or drug trafficking crime." See
supra,
at 1243. The prosecutor must show the use or carriage of a gun; so too he must prove the commission of a predicate (violent or drug trafficking) offense. See
Smith v. United States,
A
Consider first Rosemond's account of his conduct (divorced from any issues of intent). Rosemond actively participated *72 in a drug transaction, accompanying two others to a site where money was to be exchanged *1246 for a pound of marijuana. But as he tells it, he took no action with respect to any firearm. He did not buy or borrow a gun to facilitate the narcotics deal; he did not carry a gun to the scene; he did not use a gun during the subsequent events constituting this criminal misadventure. His acts thus advanced one part (the drug part) of a two-part incident-or to speak a bit more technically, one element (the drug element) of a two-element crime. Is that enough to satisfy the conduct requirement of this aiding and abetting charge, or must Rosemond, as he claims, have taken some act to assist the commission of the other (firearm) component of § 924(c) ?
The common law imposed aiding and abetting liability on a person (possessing the requisite intent) who facilitated any part-even though not every part-of a criminal venture. As a leading treatise, published around the time of § 2's enactment, put the point: Accomplice liability attached upon proof of " [a]ny participation in a general felonious plan" carried out by confederates. 1 F. Wharton, Criminal Law § 251, p. 322 (11th ed. 1912) (hereinafter Wharton) (emphasis added). Or in the words of another standard reference: If a person was "present abetting while any act necessary to constitute the offense [was] being performed through another," he could be charged as a principal-even "though [that act was] not the whole thing necessary ." 1 J. Bishop, Commentaries on the Criminal Law § 649, p. 392 (7th ed. 1882) (emphasis added). And so "[w]here several acts constitute[d] together one crime, if each [was] separately performed by a different individual[,] ... all [were] principals as to the whole." Id ., § 650, at 392. 4 Indeed, as yet a third *73 treatise underscored, a person's involvement in the crime could be not merely partial but minimal too: "The quantity [of assistance was] immaterial," so long as the accomplice did " something " to aid the crime. R. Desty, A Compendium of American Criminal Law § 37a, p. 106 (1882) (emphasis added). After all, the common law maintained, every little bit helps-and a contribution to some part of a crime aids the whole.
That principle continues to govern aiding and abetting law under § 2 : As almost every court of appeals has held, "[a] defendant can be convicted as an aider and abettor without proof that he participated in each and every element of the offense."
United States v. Sigalow,
*1247
Reves v. Ernst & Young,
Under that established approach, Rosemond's participation in the drug deal here satisfies the affirmative-act requirement for aiding and abetting a § 924(c) violation. As we have previously described, the commission of a drug trafficking (or violent) crime is-no less than the use of a firearm-an "essential conduct element of the § 924(c) offense."
United States v. Rodriguez-Moreno,
Rosemond argues, to the contrary, that the requisite act here "must be directed at the use of the firearm," because that element is § 924(c)'s most essential feature. Brief for Petitioner 33 (arguing that "it is the firearm crime" he was really charged with aiding and abetting, "not the drug trafficking crime"). But Rosemond can provide no authority for demanding that an affirmative act go toward an element considered peculiarly significant; rather, as just noted, courts have never thought relevant the importance of the aid rendered. See
supra,
at 1246 - 1247. And in any event, we reject Rosemond's premise that § 924(c) is somehow more about using guns than selling narcotics. It is true enough, as Rosemond says in support of that theory, that § 924(c)"establishes a separate, freestanding offense that is 'distinct from the underlying [drug trafficking
*1248
crime].' " Brief for Petitioner 32 (quoting
Simpson v. United States,
Rosemond's related argument that our approach would conflate two distinct offenses-allowing a conviction for abetting a § 924(c) violation whenever the prosecution shows that the defendant abetted the underlying drug trafficking crime-fares no better. See Brief for Petitioner 38. That is because, as we will describe, an aiding and abetting conviction requires not just an act facilitating one or another element *76 , but also a state of mind extending to the entire crime. See infra, at 1248 - 1249. And under that rule, 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. Aiding and abetting law's intent component-to which we now turn-thus preserves the distinction between assisting the predicate drug trafficking crime and assisting the broader § 924(c) offense.
B
Begin with (or return to) some basics about aiding and abetting law's intent requirement, which no party here disputes. As previously explained, a person aids and abets a crime when (in addition to taking the requisite act) he intends to facilitate that offense's commission. See
supra,
at 1245 - 1246. An intent to advance some different or lesser offense is not, or at least not usually, sufficient: Instead, the intent must go to the specific and entire crime charged-so here, to the full scope (predicate crime plus gun use) of § 924(c). See,
e.g.,
2 LaFave § 13.2(c); W. Clark & W. Marshall, Law of Crimes, § 187, pp. 251-253 (2d ed. 1905); ALI, Model Penal Code § 2.06 Comment, p. 306 (1985).
7
And the canonical formulation of that needed state of mind-later appropriated by this Court and oft-quoted in both parties' briefs-is Judge Learned Hand's: To aid and abet a crime, a defendant must not just "in some sort associate himself with the venture," but also "participate in it as in something that he wishes to bring about" and "seek by his action to make it succeed."
Nye & Nissen v. United States,
*77
(quoting
Peoni,
We have previously found that intent requirement satisfied when a person actively participates in a criminal venture with full knowledge of the circumstances
*1249
constituting the charged offense. In
Pereira,
the mail fraud case discussed above, we found the requisite intent for aiding and abetting because the defendant took part in a fraud "know[ing]" that his confederate would take care of the mailing.
The same principle holds here: 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
*78
drug sale, but for an armed one. In so doing, he has chosen (like the abettors in
Pereira
and
Bozza
or the driver in an armed robbery) to align himself with the illegal scheme in its entirety-including its use of a firearm. And he has determined (again like those other abettors) to do what he can to "make [that scheme] succeed."
Nye & Nissen,
For all that to be true, though, the § 924(c) defendant's knowledge of a firearm must be advance knowledge-or otherwise said, knowledge that enables him to make the relevant legal (and indeed, moral) choice. 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. As even the Government concedes, an unarmed accomplice cannot aid and abet a § 924(c) violation unless he has "foreknowledge that his confederate will commit the offense with a firearm." Brief for United States 38; see also infra, at 1250 - 1252. For the reasons just given, we think that means knowledge at a time the accomplice *1250 can do something with it-most notably, opt to walk away. 9 *79 Both parties here find something to dislike in our view of this issue. Rosemond argues that a participant in a drug deal intends to assist a § 924(c) violation only if he affirmatively desires one of his confederates to use a gun. See Reply Brief 8-11. The jury, Rosemond concedes, could infer that state of mind from the defendant's advance knowledge that the plan included a firearm. See Tr. of Oral Arg. 5. But according to Rosemond, the instructions must also permit the jury to draw the opposite conclusion-that although the defendant participated in a drug deal knowing a gun would be involved, he did not specifically want its carriage or use. That higher standard, Rosemond claims, is necessary to avoid subjecting persons of different culpability to the same punishment. Rosemond offers as an example an unarmed driver assisting in the heist of a store: If that person spent the drive "trying to persuade [his confederate] to leave [the] gun behind," then he should be convicted of abetting shoplifting, but not armed robbery. Reply Brief 9.
We think not. What matters for purposes of gauging intent, and so what jury instructions should convey, is that the defendant has chosen, with full knowledge, to participate in the illegal scheme-not that, if all had been left to him, he would have planned the identical crime. Consider a variant of Rosemond's example: The driver of a getaway car wants to help rob a convenience store (and argues passionately for that plan), but eventually accedes when his confederates decide instead to hold up a national bank. Whatever his original misgivings, he has the requisite intent to aid and abet bank robbery; after all, he put aside those doubts and knowingly took part in that more dangerous crime. The same is true of an accomplice who knowingly joins in an armed drug transaction-regardless whether he was formerly indifferent or even resistant to using firearms. The law does not, nor *80 should it, care whether he participates with a happy heart or a sense of foreboding. Either way, he has the same culpability, because either way he has knowingly elected to aid in the commission of a peculiarly risky form of offense.
A final, metaphorical way of making the point: By virtue of § 924(c), using a firearm at a drug deal ups the ante. A would-be accomplice might decide to play at those perilous stakes. Or he might grasp that the better course is to fold his hand. What he should not expect is the capacity to hedge his bets, joining in a dangerous criminal scheme but evading its penalties by leaving use of the gun to someone else. Aiding and abetting law prevents that outcome, so long as the player knew the heightened stakes when he decided to stay in the game.
The Government, for its part, thinks we take too strict a view of when a defendant charged with abetting a § 924(c) violation must acquire that knowledge. As noted above, the Government recognizes that the accused accomplice must have "foreknowledge" of a gun's presence. Brief for United States 38; see supra, at 1249 - 1250. But the Government views that standard as met whenever the accomplice, having learned of the firearm, continues any act of assisting the drug transaction. See Brief *1251 for United States 48. According to the Government, the jury should convict such a defendant even if he became aware of the gun only after he realistically could have opted out of the crime.
But that approach, we think, would diminish too far the requirement that a defendant in a § 924(c) prosecution must intend to further an armed drug deal. Assume, for example, that an accomplice agrees to participate in a drug sale on the express condition that no one brings a gun to the place of exchange. But just as the parties are making the trade, the accomplice notices that one of his confederates has a (poorly) concealed firearm in his jacket. The Government would convict the accomplice of aiding and abetting a § 924(c) offense if he assists in completing the deal without incident, *81 rather than running away or otherwise aborting the sale. See Tr. of Oral Arg. 40. But behaving as the Government suggests might increase the risk of gun violence-to the accomplice himself, other participants, or bystanders; and conversely, finishing the sale might be the best or only way to avoid that danger. In such a circumstance, a jury is entitled to find that the defendant intended only a drug sale-that he never intended to facilitate, and so does not bear responsibility for, a drug deal carried out with a gun. A defendant manifests that greater intent, and incurs the greater liability of § 924(c), when he chooses to participate in a drug transaction knowing it will involve a firearm; but he makes no such choice when that knowledge comes too late for him to be reasonably able to act upon it. 10
III
Under these principles, the District Court erred in instructing the jury, because it did not explain that Rosemond needed advance knowledge of a firearm's presence. Recall *82 that the court stated that Rosemond was guilty of aiding and abetting if "(1) [he] knew his cohort used a firearm in the drug trafficking crime, and (2) [he] knowingly and actively participated in the drug trafficking crime." App. 196. We agree with that instruction's second half: As we have explained, 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. See supra, at 1247, 1248 - 1250. The problem with the court's instruction came in its description of that knowledge requirement. In telling the jury to consider merely whether Rosemond "knew his cohort used a firearm," the court did not direct the jury to determine *1252 when rosemond obtained the requisite knowledge. so, for example, the jury could have convicted even if Rosemond first learned of the gun when it was fired and he took no further action to advance the crime. For that reason, the Government itself describes the instruction's first half as "potentially misleading," candidly explaining that "it would have been clearer to say" that Rosemond had to know that his confederate " ' would use' [a firearm] or something ... that makes absolutely clear that you [need] foreknowledge." Tr. of Oral Arg. 48-49. We agree with that view, and then some: The court's statement failed to convey that Rosemond had to have advance knowledge, of the kind we have described, that a confederate would be armed. See supra, at 1249 - 1250, 1250 - 1251.
The Government contends that this problematic instruction looks more accurate when viewed in context. In particular, the Government points to the District Court's prefatory "umbrella instruction" that to aid or abet a crime, a defendant must "willfully and knowingly seek[ ] by some act to help make the crime succeed." App. 196; Brief for United States 49. That statement, the Government rightly notes, "mirrors" Judge Hand's classic formulation. Tr. of Oral Arg. 33; see supra, at 1248 - 1249. But the statement is also pitched at a high level of generality. Immediately afterward, the District *83 Court provided the jury with the two-pronged test noted above-thus indicating how the broad principle should apply to the specific charge of abetting a § 924(c) offense. We therefore do not see how the "umbrella" statement could have cured the court's error. Indeed, a different contextual feature of the case would only have amplified that mistake. As earlier described, the prosecutor asserted in closing argument that the court's test was easily satisfied because "a person cannot be present and active at a drug deal when shots are fired and not know their cohort is using a gun." App. 158; see supra, at 1243 - 1245. The prosecutor thus invited the jury to convict Rosemond even if he first learned of the gun as it was discharged, and no matter what he did afterward. Once again, then, the message to the jury was that it need not find advance knowledge-exactly what we (and for that matter the Government) have said is required.
We send this case back to the Tenth Circuit to consider the appropriate consequence, if any, of the District Court's error. The Government makes two arguments relevant to that inquiry. First, it contends that Rosemond failed to object specifically to the part of the trial court's instructions we have found wanting; thus, the Government asserts, a plain-error standard should apply to his claim. See Fed. Rule Crim. Proc. 52(b) ;
Johnson v. United States,
It is so ordered.
Justice ALITO, with whom Justice THOMAS joins, concurring in part and dissenting in part.
*84
I largely agree with the analysis in the first 12 pages of the opinion of the Court,
*1253
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
To explain my disagreement with the Court's analysis, I begin with our case law on the
mens rea
required to establish aiding and abetting. There is some tension in our cases on this point. Specifically, some of our cases suggest that an aider and abettor must act purposefully or with intent. Prominent among these cases is
Nye & Nissen v. United States,
On the other hand, there are cases to which the Court also refers,
ante,
at 1249, that appear to hold that the requisite
*85
mens rea
is simply knowledge. See
Pereira v. United States,
Beginning on pages 1249 - 1250, however, the Court veers off in a new and, to my mind, most unfortunate direction. The Court imagines the following situation:
"[A]n accomplice agrees to participate in a drug sale on the express condition that no one brings a gun to the place of exchange. But just as the parties are making the trade, the accomplice notices that one of his confederates has a (poorly) concealed firearm in his jacket." Ante, at 1251.
If the accomplice, despite spotting the gun, continues to assist in the completion of the drug sale, has the accomplice aided and abetted the commission of a violation of § 924(c) ?
The Court's answer is "it depends." Walking away, the Court observes, "might increase the risk of gun violence-to the accomplice himself, other participants, or bystanders; and conversely, finishing the sale might be the best or only way to avoid the danger." Ante, at 1251. Moreover-and this is where the seriously misguided step occurs-the Court says that if the risk of walking away exceeds (by some unspecified degree) the risk created by completing the sale and if the alleged aider *1254 and abettor chooses to continue for that reason, the alleged aider and abettor lacks the mens rea required for conviction. See ante, at 1251, n. 10.
What the Court has done is to convert what has up to now been an affirmative defense into a part of the required mens rea, and this step has very important conceptual and practical consequences. It fundamentally alters the prior understanding *86 of mental states that form the foundation of substantive criminal law, and it places a strange and difficult burden on the prosecution.
That the Court has taken a radical step can be seen by comparing what the Court now holds with the traditional defense of necessity. That defense excuses a violation of law if "the harm which will result from compliance with the law is greater than that which will result from violation of it." 2 W. LaFave, Substantive Criminal Law § 10.1, p. 116 (2003) (hereinafter LaFave).
2
This is almost exactly the balance-of-risks calculus adopted by the Court, but under the traditional approach necessity is an affirmative defense. See,
e.g.,
United States v. Bailey,
This Court has made clear that, except in narrow circumstances, necessity and duress do not negate the
mens rea
required for conviction. In
Dixon v. United States,
The Court justifies its holding on the ground that the mens rea standard articulated in Nye & Nissen also falls within an exception to the general rule that proof of necessity or duress does not negate mens rea . Ante, at 1251, n. 10. But the Court, having refrained on pages 1248 - 1249 of its opinion from deciding whether aiding and abetting requires purposeful, as opposed to knowing, conduct, quickly and without explanation jettisons the "knowing"
*1255 standard and concludes that purposeful conduct is needed. This is a critical move because if it is enough for an alleged aider and abettor simply to know that his confederate is carrying a gun, then the alleged aider and abettor in the Court's hypothetical case (who spots the gun on the confederate's person) unquestionably had the mens rea needed for conviction.
But even accepting the
Nye & Nissen
standard as the exclusive means of proving the required
mens rea,
the Court's analysis is still quite wrong. Under the
Nye & Nissen
standard, the Government must simply prove that a defendant had as his conscious object that the hypothetical drug sale (which, as the defendant knew, included the carrying of a gun by one of the participants) go forward to completion. See
Nye & Nissen,
The Court confuses two fundamentally distinct concepts: intent and motive. It seems to assume that, if a defendant's motive in aiding a criminal venture is to avoid some greater evil, he does not have the intent that the venture succeed. But the intent to undertake some act is of course perfectly consistent with the motive of avoiding adverse consequences which would otherwise occur. We can all testify to this from our daily experience. People wake up, go to work, balance their checkbooks, shop for groceries-and yes, commit crimes-because they believe something bad will happen if they do not do these things, not because the deepest desire of their heart is to do them. A person may only go to work in the morning to keep his or her family from destitution; that does not mean he or she does not intend to put in a full day's work. In the same way, the fact that a defendant carries out a crime because he feels he must do so on pain of terrible consequences does not mean he does not intend to carry out the crime. When Jean Valjean stole a loaf of bread to feed his starving family, he certainly intended to commit theft; the fact that, had he been living in America today, he may have pleaded necessity as a defense does not change that fact. See V. Hugo, Les Misérables 54 (Fall River Press ed. 2012).
Common-law commentators recognized this elementary distinction between intent and motive. As Sir James FitzJames Stephen explains, if "A puts a loaded pistol to B's temple and shoots B through the head deliberately, .... [i]t is obvious that in every such case the intention of A must be to kill B." 2 A History of the Criminal Law of England 110-111 (1883). This fact "throws no light whatever on A's motives for killing B. They may have been infinitely various.... The motive may have been a desire for revenge, or a desire for plunder, or a wish on A's part to defend himself *89 against an attack by B, ... or to put a man already mortally wounded out of his agony." Id., at 111. "In all these cases the intention is the same, but the motives are different, and in all the intention may remain unchanged from first to last whilst the motives may vary from moment to moment." Ibid.
Unsurprisingly, our cases have recognized that a lawful motive (such as necessity, duress, or self-defense) is consistent with the
mens rea
necessary to satisfy a requirement of intent. In
Martin v. Ohio,
*1256
Under the Ohio statute, aggravated murder consisted of "purposely, and with prior calculation and design, caus [ing] the death of another."
That principle plays out in a wide variety of cases.
United States v. Leal-Cruz,
Thus, it seems inarguable to me that the existence of the purpose or intent to carry out a crime is perfectly compatible with facts giving rise to a necessity or duress defense. Once that proposition is established, the Court's error is readily apparent. The Court requires the Government to prove that a defendant in Rosemond's situation could have walked away without risking harm greater than he would cause by continuing with the crime-circumstances that traditionally would support a necessity or duress defense. It imposes this requirement on the Government despite the fact that such dangerous circumstances simply do not bear on whether the defendant intends the § 924(c) offense to succeed, as (on *91 the Court's reading) is required for aiding and abetting liability.
The usual rule that a defendant bears the burden of proving affirmative defenses is justified by a compelling, commonsense intuition: "[W]here the facts with regard to an issue lie peculiarly in the knowledge of a party, that party is best situated to
*1257
bear the burden of proof."
Smith v. United States,
568 U.S. ----, ----,
The Court's rule breaks with the common-law tradition and our case law. It also makes no sense. I respectfully *92 dissent from that portion of the Court's opinion which places on the Government the burden of proving that the alleged aider and abettor of a § 924(c) offense had what the Court terms "a realistic opportunity" to refrain from engaging in the conduct at issue.
Justice SCALIA joins all but footnotes 7 and 8 of this opinion.
The Government agreed not to bring charges against the other four participants in the narcotics deal in exchange for their giving truthful testimony against Rosemond. See 2 Record 245, 272, 295-296, 318.
The Court of Appeals stated that it had to address that argument even if the jury could have found that Rosemond himself fired the gun, because "a conviction based on a general verdict is subject to challenge if the jury was instructed on alternative theories of guilt and may have relied on an invalid one."
See,
e.g.,
United States v. Rolon-Ramos,
The Wharton treatise gave the following example of how multiple confederates could perform different roles in carrying out a crime. Assume, Wharton hypothesized, that several persons "act in concert to steal a man's goods." Wharton § 251, at 322. The victim is "induced by fraud to trust one of them[,] in the presence of [the] others[,] with the [goods'] possession."
See also
United States v. Ali,
Consider a hypothetical similar to
Johnson
and
Pereira
(and a modern variant of the Wharton treatise's, see n. 4,
supra
). Suppose that as part of a kidnapping scheme, one accomplice lures the victim into a car under false pretenses; another drives the vehicle; a third allows the use of her house to hold the victim captive; and still a fourth keeps watch outside to divert potential witnesses. None would have personally completed, or even assisted with, all elements of the offense. See,
e.g.,
United States v. Cervantes-Blanco,
Some authorities suggest an exception to the general rule when another crime is the "natural and probable consequence" of the crime the defendant intended to abet. See,
e.g.,
2 LaFave § 13.3(b), at 356 (citing cases); but see
We did not deal in these cases, nor do we here, with defendants who incidentally facilitate a criminal venture rather than actively participate in it. A hypothetical case is the owner of a gun store who sells a firearm to a criminal, knowing but not caring how the gun will be used. We express no view about what sort of facts, if any, would suffice to show that such a third party has the intent necessary to be convicted of aiding and abetting.
Of course, if a defendant continues to participate in a crime after a gun was displayed or used by a confederate, the jury can permissibly infer from his failure to object or withdraw that he had such knowledge. In any criminal case, after all, the factfinder can draw inferences about a defendant's intent based on all the facts and circumstances of a crime's commission.
Contrary to the dissent's view, see
post,
at 1253 - 1255, nothing in this holding changes the way the defenses of duress and necessity operate. Neither does our decision remotely deny that the "intent to undertake some act is ... perfectly consistent with the motive of avoiding adverse consequences which would otherwise occur."
Post,
at 1255. Our holding is grounded in the distinctive intent standard for aiding and abetting someone else's act-in the words of Judge Hand, that a defendant must not just "in some sort associate himself with the venture" (as seems to be good enough for the dissent), but also "participate in it as in something that he wishes to bring about" and "seek by his action to make it succeed."
Nye & Nissen v. United States,
I am also concerned that the Court's use, without clarification, of the phrase "advance knowledge" will lead readers astray. E.g., ante, at 1243. Viewed by itself, the phrase most naturally means knowledge acquired in advance of the commission of the drug trafficking offense, but this is not what the Court means. Rather, "advance knowledge," as used by the Court, may include knowledge acquired while the drug trafficking offense is in progress. Specifically, a defendant has such knowledge, the Court says, if he or she first learns of the gun while the drug offense is in progress and at that time "realistically could have opted out of the crime." Ante, at 1251.
Traditionally, the defense of necessity was employed when natural forces created the situation justifying non-compliance; when the situation was the product of human action, duress was the appropriate defense. 2 LaFave § 10.1(a), at 116. But "[m]odern cases have tended to blur the distinction between" these two defenses,
United States v. Bailey,
Reference
- Full Case Name
- Justus C. ROSEMOND, Petitioner v. UNITED STATES.
- Cited By
- 687 cases
- Status
- Published