We pay attention to federal criminal cases everywhere in the country, not just those here in Atlanta or other parts of Georgia, nor merely those arising in nearby states like Florida, Alabama or Tennessee. One reason we pay attention is so we know all the hot issues that might help our clients. One such issue focuses on how far one person can be held accountable for the actions of another person who was involved in the same crime. The fancy name for this is “aider and abettor” liability. In an earlier post I noted how I pushed this issue over 20 years ago, resulting in my very first win on appeal. I also noted how the U.S. Supreme Court recently took on a case that focused on whether my original arguments were correct. Last week, they issued their ruling in Rosemond v. United States, and they agreed with the defense perspective. You can read it here.
Justus Rosemond took part in a drug deal where either he or another participant fired a gun. Federal prosecutors charged everybody involved in the deal with shooting the weapon, and their theory was either that Rosemond himself shot the weapon, or that he “aided and abetted” the shooter. That’s crucial because an aider and abettor is just as responsible as the actual shooter, and would get the same mandatory additional 5 or 7 years tacked on to a sentence.
The trial judge told the jury that Rosemond was guilty of aiding and abetting the gun crime if he (1) “knew his cohort used a firearm in the drug trafficking crime” and (2) “knowingly and actively participated in the drug trafficking crime.” The second alternative was crucial, because a jury could then find Mr. Rosemond guilty of the shooting merely by finding that he wanted to be part of the drug crime, regardless of whether Rosemond had any knowledge of or intention that a gun would be part of the deal.
In reversing his conviction, the Supreme Court sort of cut the baby in half. They rejected the idea that an aider and abettor had to have exactly the same “intent” as the shooter. However, they also ruled that there must be proof that when a defendant aids and abets a gun violation prosecutors must prove 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. An active participant in a drug transaction has the intent needed to aid and abet a gun violation when he knows that one of his confederates will carry a gun. This must be advance knowledge-meaning, knowledge at a time when the accomplice has a reasonable opportunity to walk away.
As noted above, the trial judge did not tell the jury that Rosemond needed to know in advance that one of his cohorts would be armed before he could be held accountable under aiding and abetting liability. Instead, the judge merely told the jury to consider whether Rosemond “knew his cohort used a firearm,” and the trial judge did not direct the jury to determine when Rosemond found about the other person’s gun. As a result, they reversed his case and sent it back to the court of appeals for more consideration.
As I mentioned in my earlier post on this issue, this is precisely the same issue I won 20 years ago. In that case, I was able to shave off 20 years from my client’s sentence. Let’s hope that other attorneys can use this recent ruling to help their clients if the situation fits the facts.