Dealing drugs is one thing. Dealing drugs with a gun on the scene becomes something very different. For decades, state and Federal criminal laws have imposed heavier penalties on crimes where a firearm is in play. "Use of a deadly weapon" makes virtually any crime a more "aggravated" crime.
Who got the gun out might seem to be obvious in any given crime, but in this case, not so much. What about accomplices to the drug deal who may or may not have anything to do with the firearm? What does a prosecutor have to show to prove a perp is guilty of the armed offense?
Tomorrow this courtroom will be full.
This is the question before the Court in Rosemond v. US tomorrow (Tuesday) at 10am. Like the legal curlicue, facts and the law make this case twistier than it may seem ...
[Disclaimer. What follows is general information on a law topic. Nothing in this diary constitutes legal advice and it is not to be acted upon as legal advice. Criminal law and procedure is a law practice specialty. If you need advice, get it from a skilled professional.]
Just the Facts, Ma'am ...
Justus Rosemond (Yes, his name is Justus) and Ronald Joseph had a pound of marijuana to sell. Ms. Vashti Perez, who arranged the deal and was a friend of Joseph, drove them to a park to meet prospective buyers, Ricardo Gonzales and a friend of Ricardo's. Gonzales checked the product, punched Rosemond in the face, grabbed the stash and ran. As the buyers-turned-thieves ran in different directions to flee the scene, one of the three occupants of Perez's car (Perez, Joseph or Rosemond) fired at least seven rounds from a 9-millimeter semi-automatic handgun. A state trooper stopped the car a mile away. No drugs or weapons were found in the car but bullet casings were discovered at the scene.
Rosemond was charged with four counts:
- possessing marijuana with intent to distribute,
- discharging or aiding and abetting the discharge of a firearm under Title 18, U.S.C Sec. 924(c),
- possessing ammunition being a convicted felon and
- possessing ammunition being in the country illegally.
On trial, Perez, Joseph and the buyers testified as cooperating witnesses for the government. (It appears Rosemond was new in town.) As you might expect, their stories varied considerably. Joseph was the only one who testified who fired the gun, and he said Rosemond did it. No one else seems to have been sure. Perez said her back was turned to both of them. The other witnesses didn't know or were conflicted on which one did what.
The penalty for one who aids and abets this crime is the same as for the principal and according to the government’s theory in this case (as you'll see at trial), it didn't matter.
At Trial ...
In his closing argument to the jury, the prosecutor did not identify whether it was Joseph or Rosemond who actually fired the gun:
"Rosemond was involved in the drug trafficking crime....
And with regards to the other element of aiding and abetting the gun crime, the fact is a
person cannot be present and active at a drug deal when shots are fired and not know their cohort is using a gun. You simply can’t do it."
Rosemond's lawyer countered that under the government's minimalist theory of culpability, all Rosemond had to do to be guilty was to listen! He asked the judge to give the jury a more demanding instruction:
The defendant may be liable for aiding and abetting the use of a firearm during a drug trafficking crime, if (1) [he] knew that another person used a firearm in the underlying drug trafficking crime, and (2) [he] intentionally took some action to facilitate or encourage the use of the firearm.(underlining added)
The District Court trial judge accepted the government's position but observed, "If I'm wrong," and Rosemond is found guilty, he has "a great issue for appeal ...” Yup!
Under Section 924(c) of the US criminal code, an armed crime of violence or drug trafficking carries additional mandatory minimum sentences - five years for possessing a gun during the commission of a crime, seven for "brandishing" it, ten for discharging it.
The jury found Rosemond guilty. The judge sentenced him to four years in jail on the three other counts and ten more years to run consecutively on the armed charge. His conviction on the firearms count was the only one Rosemond appealed.
The Arguments on Appeal.
The Appellate Court for the Tenth Circuit (the crime took place in Tooele, Utah, in August 2007) upheld the government.
In briefs to SCOTUS, Rosemond’s lawyer pointed out the Federal circuits were split. The Tenth Circuit was a minority view with which only two Federal circuits agreed. Eight other circuits required more proof. He argued that aiding and abetting meant tangible affirmative acts that encouraged or facilitated the crime and he insisted that discharging a firearm is the "specific crime that the defendant must have consciously and affirmatively assisted."
The government contended that "a defendant need not assist in every aspect of the criminal venture or directly aid the principal’s completion of every element of the offense, so long as the defendant facilitated some aspect of the crime and intended that the charged criminal venture succeed." It said that many crimes involving violence and drugs were committed by "groups of offenders acting in concert" and argued that gang members should not be allowed to avoid the tough penalties of a crime they are actively engaged in.
Amicus "friend of the Court" briefs were filed by two parties.
The National Association of Defense Lawyers agreed with Rosemond and argued practicalities, such as: an accomplice may not find out that another had a firearm until after the underlying offense was completed. There may be no practical way for a perp to opt out at the point of a crime after a gun comes into play. Perhaps the principal's gun threatened his accomplice to join him in the crime.
An amicus brief was filed by the Gun Owners Foundation together with five other gun rights groups. Their brief challenged Congress's gun crime legislation and the aggressive efforts of Federal prosecutors to enter areas of criminal law formerly occupied by the states.
Why did SCOTUS Accept this Case? What's Ahead?
The Court does not announce why it agreed or declined to review a case. (At least four justices have to agree to hear it.) To resolve a split among the circuits is a prime reason for SCOTUS to accept arguments. But in Rosemond there is probably more to it. Drug cases are 30% of all the criminal dockets in Federal courts and almost half of all Federal prisoners are in jail for drug offenses!
Mandatory penalties have been the focus of several of the Court’s decisions. According to Drugwarfacts.org, which assembles statistics on drug-related cases, "[I]n fy2010, more than three-quarters (77.4%) of the 19,896 defendants convicted of an offense carrying a mandatory minimum penalty were convicted of a drug trafficking offense, and 11.9 percent were convicted of a firearms offense."
SCOTUS has held that instructions to a jury must cover all the specific elements of a charge that would trigger a mandatory sentence. (The judge sentences. The jury usually is not aware of sentencing matters, but the element of the case that triggers increased penalties is to be submitted to the jury.) A summary is in ScotusBlog, the definitive source for news and analysis of Supreme Court cases.
Second Amendment rights are not at issue in this case and clearly, they must not protect criminals using guns to commit crimes. Nevertheless ...
Imagine what could happen in an area where people are present and someone, maybe a police officer or maybe not, shouts the warning, "GUN!"
Armed ... and considered dangerous?
... When citizens can parade in public with guns on the premise that they are protecting their Second Amendment rights; when they can go into a bar or college stadium or movie theatre with weapons at the ready to protect themselves because they believe the police can’t or won’t; when it’s appropriate for a guy to wait in a busy airport with a rifle accompanied by his 12 year old son who is carrying a semi-automatic handgun; when no charges are pending against a homeowner who shot a troubled caller on his doorstep in the face ... the very presence of weapons around a crime scene is bound to challenge time-honored criminal laws on the books.
Stand Your Ground statutes in more than 20 states overlap criminal laws. As we know from the Zimmerman trial - whichever side of that you're on - "overlap" is a soft word; "confront" is more accurate. And they will be a significant factor in criminal prosecutions for gun crimes and the penalties for them.
The laws on firearms are about to get much more complicated.
Oral Arguments begin tomorrow - Tuesday, November 12 - at 10:00 am. After some time to digest the transcript (often available soon after argument), I'll post a Rosemond 2.0 diary as a followup on the questions asked and, obscure as it often is from questions, wonder with you where this case might be headed.
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