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The justices have spoken in Justus Rosemond’s case, some of them quite a lot. Arguments were held on the morning of Tuesday, November 12. What did they ask? What did they say? What does it mean?

Rosemond v US Transcript

Many SCOTUS questions and observations paralleled those of our commenters in the earlier diary in this series, "I Didn't Know the Gun ... !" SCOTUS to Hear Rosemond v. US. This annotated transcript is dedicated to Firearms Law & Policy's own panel of experts in that diary. Perhaps you did not know at the time how farsighted you were! Lilith has posted the full transcript in a companion diary along with a few definitions, Transcript of Oral Arguments at SCOTUS in Rosemond v. US.

Follow the circuitous squiggle to see how close we all got to the questions from the Court of last resort in Rosemond v. United States.

THE CASE

Justus Rosemond and two others had a pound of marijuana to sell. When potential buyers turned into thieves and ran away with the stash, one of the perps fired a gun. At trial, the testimony was uncertain and conflicting about who the shooter was. The prosecutor argued that Rosemond was guilty because as an accomplice, he knew a firearm was used in furtherance of the crime of drug trafficking. The jury found him guilty of possessing drugs with an intent to distribute, two other charges concerning possession of ammunition and the firearms charge. Accordingly, Rosemond was sentenced to 48 months plus a mandatory additional ten years under Federal law. He appealed only his firearms conviction. The Tenth Circuit Court of Appeals upheld it.

The lawyers who argued in the Supreme Court had no involvement in the trial itself. JOHN ELWOOD, a DC appellate lawyer, argued for Rosemond and went first for 25 minutes. (Yes, there’s a countdown clock but questions from justices can extend it.) JOHN BASH from the US Solicitor General’s office had 25 minutes and MR. ELWOOD had a brief rebuttal.

The transcript of the arguments is also available on this site and the audio recording Is available online. The recording is easy to follow and more fun than my bare bones selections from the transcript below ... except that it lacks insights from DK's own experts! Purists will note that I've done a lot of deleting and eliding to keep the length manageable.

Quotations from the transcript are in blockquote. Commenters names are underlined.

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.

IN THE SUPREME COURT OF THE UNITED STATES
JUSTUS C. ROSEMOND v. UNITED STATES

No. 12-895

OPENING ARGUMENT FOR ROSEMOND

MR. ELWOOD: Mr. Chief Justice, and may it please the Court:

It has long been a bedrock principle of American law that aiding and abetting liability requires proof that an accomplice acted with purposeful intent to facilitate or encourage the crime of conviction and that mere knowing assistance is insufficient.

Barely 20 seconds into his opening argument – a mere breath of time for any lawyer – JOHN ELWOOD drew his first question.
J. ANTHONY KENNEDY: Do you agree that the jury could find the defendant guilty of the firearms charge under a proper instruction? In other words, was there sufficient evidence so that if a proper instruction were given, there could have been a conviction?
earlybird raised the issue of a proper instruction in the very first comment in the original diary. Why concentrate on instructions? Because they set the law of the case for the jury. If they are wrong, the jury can't get the case right. As LilithGardner said, "I never knew anything about jury instructions until the [George Zimmerman] trial and I'm just starting to appreciate how critical that procedural step is in every trial."

MR. ELWOOD answered J. KENNEDY'S question, arguing there was no evidence of foreknowledge and the government ...

MR. ELWOOD: ... never really argued facilitation after getting knowledge of the firearm.
That shorthand is the crux of this case. Our Firearms Law & Policy group was divided on it.

FogCityJohn: "Are they relying on transferred intent? I'm not familiar with this case, but it sounds to me like that's the argument. In other words, defendant decided to participate in a crime, and he thereby became liable for whatever happened thereafter."

enhydra lutris appears to side with ELWOOD: "If I pick up a friend at the airport and he has, unbeknownst to me, contraband, I am not an accessory to his possession thereof. If he is a felon with a gun, how does the fact that a gun is involved trump the fact that I am ignorant and innocent of anything related to that crime? If he suddenly shoots somebody out of the window, why do I suddenly become culpable?"

On the other hand, for several of our DK commenters, this issue was the tipping point and if they were the judge, Rosemond would lose:

Hugh Jim Bissell: "But the defendant(s) were involved in a criminal act at the time of the shooting: distribution of marijuana. Ergo a crime was being committed, and a gun was used in the commission of the crime.

shaso: "Wasn't this OJ's defense? That he didn't know his associates had guns when he went up to the hotel room to try to 'retrieve' his memorabilia? If this is decided in Rosemond's favor, where do you draw the line?"

notrouble: "If Rosemond knew that one of the persons going to make the sale was bringing a firearm, they should all face the full penalty for discharge of a firearm in the commission of a crime. ... The point is, don't participate in felonies ..."

Assuming Rosemond was not the shooter (as everyone did, for purposes of this appeal), to be found guilty, did he have to do do anything after he knew of the gun? It’s only a couple minutes into the oral arguments. Could this case be over? In a word, No! Actually, there were two words:

J. ANTONIN SCALIA: No, no.
But J. KENNEDY is not diverted.
J. KENNEDY: Justice Scalia can --- his own question. [Those are the court reporter’s dashes, not mine!]
J. KENNEDY continues for sentence or two. But no one - no one! – shoos away The Honorable Mister Associate Supreme Court Justice Antonin Gregory Scalia.  We are on the precipice of conversations about whether mere knowledge of a gun is sufficient or something more - such as, intent! - is required.
J. SCALIA: Now wait. … Let's assume there's a lot of evidence that he didn't really want them to use firearms, that there's no way you can say he intended them to use, but he knew that they had firearms. … It's my hypothetical…. There is so much other evidence [in his hypothetical]. This – this man hates firearms. He does not like firearms. There is no way he could have intended them to use firearms. But he knew they had firearms.

Sidebar. Two types of people are empowered to badger lawyers: law school professors and Supreme Court justices. Here, J. SCALIA assumes the vests and robes of both.
J. SCALIA: Okay. So if you intend a crime ... and you know that the crime is being conducted with firearms, that's enough. ... That’s all you do. You know before hand, and you facilitate the crime.
MR. ELWOOD begins a prolonged response, but J. SAMUEL ALITO somewhat impatiently weighs in:
J. ALITO: Well, give me an example of that.
So MR. ELWOOD begins to spin his own hypothetical. This would be hypothetical #2. Eventually, this case will have will be four more hypos, each trying to pin down one argument point or another. This one is about a guy from Philadelphia; No, make that Pittsburgh; who drives with his neighbor to West Virginia for a weekend of drug deals; and his neighbor says ... But ELWOOD is losing J. ALITO, probably somewhere around Harper’s Ferry.
J. ALITO: I don’t understand the example. The – the alleged aider and abetter learns about this after it’s happened? That’s the idea?
Soon, J. ALITO wants his own hypothetical. I mean, who wouldn’t? So now, the good justice adds #3, a convenience store stickup where one perp lectures another to use a baseball bat, not a gun, yet the crime proceeds with a gun. [Listen to the audio. There is laughter in the courtroom. Folks, there is not often laughter in this particular courtroom.]
J. ALITO: [I]n my case, if the judge had given the instruction, it's enough that he knew about it. He facilitated the crime when he knew there was a gun. Would that be error?
MR. ELWOOD: I think it would be error because you're instructing them on the wrong elements. It might be harmless error. But the point -- both sides agree here that you have to facilitate the crime of conviction and you have to intend that the gun be used. [No, not "both sides." The government does not accept that it has to prove Rosemond intentionally facilitated or encouraged use of the gun.]

Sidebar. (1) "Elements" of the crime are the specific points the prosecutor must prove for the jury to find a defendant guilty. This case raises the issue of what elements are required to convict an aiding and abetting accomplice for firearm use by another.
(2) “Harmless error” is genteel law language to suggest an error was committed but there's No harm, so No foul. My take is that MR. ELWOOD wants out of this quagmire. If he agrees that knowledge constitutes facilitation, client Rosemond’s case will be burnt toast.
(3) Intent RE the gun is ELWOOD’s tipping point in favor of Rosemond. It’s more than participation in the drug trafficking, more than just knowledge there’s a gun around, more than just carrying on with the crime after that knowledge. ELWOOD wants SCOTUS to decide that to aid and abet, you have to facilitate the use of the gun. That's what ELWOOD contends is the law in the majority of Federal circuits. However, tangible acts concerning the gun will be hard to come by since Rosemond wasn't proven to be the shooter ... so we’re just gonna have to talk about intent. Here's where the discussions become, er, diffuse.
J. ALITO asks about hypo #2, knowingly driving a guy carrying a gun:
J. ALITO: […] could a rational jury say he knew about it, but he didn't intend it?
Mr. ELWOOD: [...] that would be a tough slog.

But in Rosemond's case, ELWOOD hammers home his point that there’s no foreknowledge of the gun. This allows him to advance a key defect in the prosecution's argument:

MR. ELWOOD: [T]he government's instruction conclusively presumes ... intent from knowledge alone and it conclusively presumes facilitation of the gun from facilitation of the underlying [drug] offense.
enhydra lutris made precisely that point: "Even in this case, only one side had a gun, and only one gun; meaning that only one person may be presumed to have cognizance of its existence. Everything else is a presumption of guilt in the complete absence of any relevant facts."

J. SONIA SOTOMAYOR is now going to do her best to clarify what her colleagues are driving at. She states the core issue - whether participation in the crime with knowledge of the gun constitutes knowledge and intent to facilitate. Then, to clarify the importance of the sequence, she takes her own stab at the facts.

J. SOTOMAYOR … [T]he alleged shooter, which your client said was someone else  [Wrong! There is no statement by Rosemond in the record], jumped into the car and the car took off before anybody could abandon the crime. That's what I actually thought this case was about.

She wonders if Elwood means pre-knowledge is required and asks for an example. They now spend considerable time circling warily around each other's viewpoints. Hypo #4 comes in here, about a street corner crime.


Sidebar. Judges ask questions for a variety of reasons - to test theories, to validate their own notions of the case from reading the briefs, to ferret out gaps or create them, to jog another judge who might be waffling, etc. Drawing conclusions from questions is not science or art. It's alchemy. And we know how alchemy worked out.
J. RUTH BADER GINSBURG:  Mr. Elwood, you're dealing with all kinds of hypotheticals. [Cut him a break here, Madam Justice, not all hypos were his!] But in this case we had a jury determination that Rosemond was the person -- he was convicted of carrying ammunition, … And couldn't one infer from that that he -- he possessed the ammunition, he was the gun carrier?
LilithGardener raised the ammunition question for us and suggested pulling apart who was responsible for what:

"1. Someone put the bullets in the gun. Who? When?
2. Someone chambered a round. Who? When?
3. And someone decided to carry a loaded gun in public. Who? When? (note, that 'legally carry' includes having a loaded gun in your car).

"Theoretically it could have been three different people, at three different times, or one
person who made a decision to exercise their RKBA at three separate steps. Each step
involves an escalation of risk of injury to the gun owner and the public. IMO each step
carries a distinct responsibility and culpability for where those bullets go when they leave
the gun.

"E.g. Suppose [George Zimmerman] could have been asked at trial - when did you load the magazine, when did you put the magazine in the gun, when did you chamber a round?"

In Rosemond's case, the true facts are impenetrable. If the ammunition everyone is talking about was inside the gun (which ELWOOD agrees at one point that it was!) and the jury convicted Rosemond on two ammunitions counts (they did, although this somehow escapes notice in this round of questions!), it stands to reason that Rosemond had to have the gun in his possession. There is a hopelessly muddled trial record on who sat where in the car and who moved around when and the ammunition issue gets lost in this mud.

Later, in government counsel's argument, the Chief Justice will challenge MR. BASH on the ammunition issue.
C.J. ROBERTS: What's the point of charging him with possession of the bullets if you're not charging him with possession of the gun?
MR. BASH: It -- we could have charged him with possession as a felon. We didn't. It's not totally clear to me why we didn't. But we certainly could have charged him with being a felon in possession of a firearm in this case.
J. SCALIA: Did -- did he facilitate the crime after the shots were fired?
BINGO! Simple question. Big Trap! MR. ELWOOD's's response is to talk a lot. Lawyers are averse to answering questions Yes or No. They usually make only adverse witnesses do it! As enhydra lutris observed, "The problem I have is that knowledge after the fact is different from knowledge before the fact."
MR. ELWOOD: The government did not ever argue facilitation after the shots were fired, I suspect because ... they appreciated that the offense was over with. He was only charged with possession of marijuana with intent to distribute.
J. KENNEDY wonders about flight after the crime is over. CHIEF JUSTICE ROBERTS intervenes.
C.J. ROBERTS: Is it -- is it just flight? I thought there was evidence that they were chasing the people who robbed them.
MR. ELWOOD: There was no evidence that that intent to chase them was ever communicated to Mr. Rosemond.
C.J. ROBERTS: Well, he jumps in the car and, you know, they're going after them.
MR. ELWOOD: That itself was disputed. But the question is, even if they're chasing him, that might be attempt to possess the marijuana to get it back. It might be conspiracy to possess the marijuana, but that wasn't -- wasn't charged. The only thing was possession.
C.J. ROBERTS: Well, … it might be an effort to continue the crime of -- in other words, it might make a difference whether the people who are being chased look and see two guys in the car or three guys in the car. If somebody says -- and I realize you dispute these facts -- let's go get them and the guy jumps in the car, it seems to me that that's aiding and abetting the underlying illegal activity with knowledge, of course, that guns were used.
MR. ELWOOD: I agree. But first, that's not a theory that the government ever espoused. They never argued that facilitation. [Huh?]

And secondly, I don't know that that would be facilitation of possession of marijuana with intent to distribute it. That ended under the court's instructions when they lost control of the marijuana when Mr. Gonzales [one of the putative buyers] disappeared.

US Criminal Code
Title 18, Sec. 924(c)(1)(A)

"... any person who, during and in relation to any crime of violence or drug trafficking crime ... uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime -
(i) be sentenced to a term of imprisonment of not less than 5 years;
(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and
(iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years."

Title 18, Sec. 2(a)

Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.

J. GINSBURG steps in to administer the coup de grace.
J. GINSBERG: Does that have to do with the additional 120 months?... The underlying crime is 48 months ...
And MR. ELWOOD brings it home.
MR. ELWOOD: That’s right. … the reason why we think it makes a difference is because it’s a different crime. And the government is trying to get the jury to conclusively presume from the fact that you did the one crime, that you must have also facilitated the other.
enhydra lutris suggested an assumption that only the person with the gun knew of the gun: "Everything else is a presumption of guilt in the complete absence of any relevant facts." Lilith questioned how much room there was for reasonable doubt based on conclusions from sparse facts.

One last test by J. KENNEDY, who started all this with his instruction question … if you can remember that far back.

J. KENNEDY: You are driving the car, the cohort has the gun, the cohort is going to rob the bank. Are you or are you not aiding and abetting because you're facilitating it by driving the car, yes or no?
MR. ELWOOD: We would say that, yes, that is certainly enough to go to the jury ... because you’re carrying both the gun on your cohort and you’re carrying the cohort, that would be enough to facilitate that.
J. SCALIA: But only -- you say it's enough to go to the jury and what you would ask the jury to find is intent, right? ... Not just to find those facts that were stated by Justice Kennedy.
MR. ELWOOD: That's correct. Intent and facilitation.
So, we have heard MR. ELWOOD arguing that there has to be both intent and tangible acts (or at least intent strong enough to constitute evidence of tangible acts that amount to "facilitation") for both the drug crime and the firearms crime.
.


ARGUMENT FOR THE UNITED STATES

JOHN BASH, Assistant to the Solicitor General, introduces hypo #5 about a bank robber who pays a bank guard to help, but the crime doesn’t succeed and the guard doesn't care. They chase those hypothetical rabbits for quite a while.

J. GINSBURG: And your position seems to be that all you have to prove is facilitation of the underlying drug offense. And it seems to me to -- to get 10 years of your life for the government proving no more than the 48-month charge is a bit much.
This echoes Lilith’s comment about "the unfairness of how mandatory sentencing laws are applied."

BASH dodges that bullet.

MR. BASH: … But it's not only proving that you facilitated the drug offense. It's facilitating the drug offense with the foreknowledge that a gun was going to be involved in it.
J. KENNEDY has read the government's jury instruction in this actual case:
J. KENNEDY: But this instruction says that the defendant "knew his cohort used a firearm." It really should say that "knew his cohort would carry a firearm."
This is very dangerous territory. Why? There is no proof that Rosemond knew the firearm was being carried, only that it was fired. The drug sale was a failure at the point the gun was fired. If everything after the gun was fired can be split from the drug deal, there would likely be no firearms case under Sec. 924(c) because of the way the government chose to charge Rosemond.

Ultimately, BASH sidesteps:

Mr. BASH: Petitioner [Rosemond] never objected on the grounds that the particular wording of this instruction allowed conviction if you gained knowledge only after your participation.
J. SOTOMAYOR points out that hypotheticals are fictions.
J. SOTOMAYOR: It's nice to put hypotheticals in where you know, where you say someone knew X, Y and Z. The reality is in most cases you don't. Occasionally you get a co-conspirator that will tell you, but in most cases you have just the actor. A defendant is present during a crime, a gun is pulled, and he leaves with his cohorts. You don't know whether he had advance knowledge that the gun would be used because he wasn't carrying it and he may have done nothing but be present during the crime, left, and got a split of the money later, correct?
MR. BASH: If he continued participating after he learned of the gun, yes. … If he learned of the gun and said, hey, I'm out of this, he's not guilty.
This is earlybird's opening point exactly! "If I have knowledge or reason to believe that my partners in crime own or possess a gun, then I should be taking affirmative action to ensure that he doesn't bring it along when we do the deed.

"Don't ask, don't tell is not an option here."

JOHN BASH uses the moment to further the government's view - as it argued in its brief - that the Federal Circuit Courts of Appeal are not really split. …

Mr. BASH: [M]ost courts of appeals, I think eight, have technically adopted the position that you have to facilitate the gun in a direct way, [but] if you look at the actual holdings of the cases [they don't] differ in practical application from our approach. [Those terms "technically" and "in practical application" encompass a Big Sky range of alternatives. And remember: the instructions to the jury must cover the decisive elements of a case.] If the gun is drawn and the person continues to facilitate the drug crime or the violent crime, that is enough.
That is the government's case in a nutshell! Hugh Jim Bissell: "But the defendant(s) were involved in a criminal act at the time of the shooting: distribution of marijuana. Ergo a crime was being committed, and a gun was used in the commission of the crime." And shaso: "If this is decided in Rosemond's favor, where do you draw the line?"
J. ELENA KAGAN: Well, what exactly would you want him to do at that point to not be convicted of this, of this offense? Would you want him to just say, you know, sort of like drop everything, I'm out of there? Is that the idea?
Channeling early bird! And as enhydra lutris observed: "A great many pot deals are consummated with no guns involved."
MR. BASH: Yeah. Take this case. This is an $800 marijuana deal. … if you are on that kind of small-scale deal and all of a sudden it becomes an armed offense, you do have an obligation to withdraw. Now, of course, I think you might have a duress defense if you felt like if I withdraw I'm going to get shot, or something like that.
.
Sidebar. Two DK commenters raised the self defense/gun rights issue.

Lilith: "If we believe people have a right to self preservation (which is what self defense laws are all about), I'll assert that an accomplice has a right to try to stay alive that mitigates their responsibility for the presence of the gun."

ROGNM: "Common Law clearly states that you can defend yourself and your weed from drug-runners. Correct? As the buyers-turned-thieves ran in different directions to flee the scene."

J. GINSBURG raises the question whether there actually is an underlying crime.
J. GINSBURG: Mr. Bash, would you explain why in this situation the guy abetted a drug deal when there was no drug deal? It had been thwarted. The drugs were stolen. They were not engaged in any attempt to sell the drugs. That was a failed attempt. So how is this done, abetting a drug deal, when the deal failed?
.
Sidebar. Contrary to J. GINSBURG's statement, Rosemond and his cohorts were "engaged in [an] attempt to sell the drugs." However, she may be summarizing the point that discharging the firearm and chasing the fleeing buyer/thieves were not part of the drug possession charge of which Rosemond was found guilty. This seemingly small issue (which C.J. Roberts raised with Mr. Elwood) might be a basis for the Court to return the case to the Tenth Circuit to sort out the significance of an issue that may not have been explored fully enough.
BASH responds. In brief: (1) our principal theory at trial was that Rosemond was the gunman, (2) but anyway, you can’t reasonably split the shots and the chase from the failed deal, (3) the offense continues for some time after they gave chase to reclaim the drugs and (4) Rosemond's trial lawyer never objected to that point.

Back to J. KAGAN. Two people, she says, did two different things.

J. KAGAN: Mr. Bash, you know, what sticks in my craw a little bit about your position is this: ... two people and they do very different things and they have very different intents, we want them actually to be punished differently.

And what you're suggesting is that ... one person does almost everything. You know, he does 90 percent of the stuff. And the other person does just a little thing, but something, you know, that goes to the offense that helps facilitate the offense. So, you have a lesser act and a lesser intent, and notwithstanding that, you're saying that the person ought to be punished in the exact same way as his confederate.

MR. BASH: We are saying that.
And, as I read their comments, so are FogCityJohn, shaso and notrouble. J. KENNEDY quotes from a California case just as FogCityJohn raised it and notrouble mentioned a similar rule in the state of Washington. MR. BASH reiterates the government's position that there is no differentiating on the basis of proportionate culpability.

The Court returns to instructions. The issue that began this morning of argument now plagues Mr. Bash.

Mr. BASH: … it would have been clearer to say "would use" or something that -- that makes absolutely clear that you required foreknowledge.

And then Mr. BASH takes a big and gutsy step:

Mr. BASH: I think if the Court has questions about this sort of case-specific issue along with the forfeiture and waiver and harmless error and plain error issues, it could do this and this would be a sensible result: [the Court] could clarify (1) facilitation with respect to either conduct element is enough as far as actus reus. [actus reus is the "guilty act" as opposed to mens rea, the "guilty mind", or intent] (2) the intent to facilitate means an intent to make some step in that crime easier combined with knowledge that the principal bears the intent to complete the crime.

And then it could remand to the court of appeals to say, sort out whether this instruction was wrong, whether that objection was forfeited, whether harmless error or plain error concepts come in here.

As I read this argument, it concedes the conviction’s imperfection, however much it also proceeds to minimize it. This may be a slippery slope between returning the case to the Tenth Circuit to see how harmful the errors were and returning the case to be retried before a jury.
.

REBUTTAL FOR ROSEMOND

MR. ELWOOD tries to capitalize on Justice Kagan’s concern for treating the perps differently.

Mr. ELWOOD: ... traditionally because the actus reus is relatively small for aiding and abetting cases, that is exactly why courts have adopted a standard of purposeful intent. And they have said that because the act of an accomplice tends to be less harmful and tends to be more equivocal than that of the principal, that they ordinarily require purposeful intent.
For the first time in this argument, J. STEPHEN BREYER steps in. He is looking for cases that deal with "purposeful intent."
J. BREYER: ... You use the word "intent." Some people used it in order to encompass the situation ... of the known but undesired consequence.

... I want really an instance where the holding of the case is that a person who commits an unlawful action with knowledge that the other unlawful action will occur is not liable for it.

MR. ELWOOD refers him to a treatise on the subject. After a question about making and preserving objections during the trial, C.J. ROBERTS declares the case is submitted to the Court.
.


SO, WHAT TO MAKE OF ALL THIS?

On the facts, this case is complicated by what we don't know. The investigation, as Lilith emphasized, missed determinative facts: "Gaps in the investigation make the whole thing sound fishy. The gun was in the freakin' car?! And the cops didn't find it?" (True, according to the Tenth Circuit Court opinion.) Why didn't they take gun residue tests? (GSR tests may be equivocal, but they would have almost certainly established which perp shot the gun.) Where did they find the shell casings/ammunition in a way they could tie them to Rosemond? And then at trial, with the other perps uniting against Rosemond but in different ways, the record gets messy. Lilith objects to the government not having to prove who the shooter was: "I thought reasonable doubt was the standard! ... I feel ashamed of the government's case."

On the law, the question is easy to frame: Is continued participation in a drug crime after learning a cohort has a gun sufficient to convict for a firearms offense? For the government, the answer is Yes. Chasing the thieves is a continuation of the "old" crime, it constitutes "facilitation" of it. An accomplice is "in for a dime, in for a dollar," and it is reasonable to impose criminal liability that includes the means other participants used to perpetrate the crime.

If the law answer is No, however, the case gets complicated. What more is required - conduct and/or intent to do what, exactly? Is that answerable in the abstract or is it a jury question dependent on the facts of the case? If so, what is the acceptable instruction to the jury?

Then, in Rosemond, there's all this talk of "abandoning the crime", "lost control of the marijuana", and whether the car was in a chase or flight from the scene or even part of the charged offense at all. Particularly when the charged offense is "possession" and not a consummated deal. These offer ways for the Court to send the case back for clarification and/or decide it on narrow grounds. (In preceding drafts of this diary, I confess to omitting references to these matters, feeling they were a diversion. We'll see!)

And while mandatory sentencing is not directly at issue here, it cannot help but inform some of the justices' views of this case. Without proof of who shot the gun, should being an accomplice who was present when a gun was fired - literally, just hearing it go off! - be enough to impose a minimum additional sentence of ten years prison time? Mandatory sentences are Congressional policy, but with prosecutorial latitude to administer. Attorney General Holder recently announced the DOJ will relax its use of mandatory sentences in drug cases.

[Although this is a subject for another diary - and the issue is not presented in this case - what if Rosemond was carrying a handgun for self defense (a la comments by ROGNM and Lilith), state law allowed concealed carry and it was not used in any way during the crime? Does Sec. 924(c)(1)(A) criminalize an otherwise lawful carry? If it doesn't, that would almost certainly be every defendant's first line of defense!]

Circuitous questioning and juggling all those hypotheticals with inventive variations ... Why? Because unlike the non-precedential opinion in Bush v. Gore, the Supreme Court's decision here will reach beyond this particular case, to settle principles for Federal trials in aid-and-abet cases involving firearms. Consider the leverage prosecutors have in the thousands of aid-and-abet cases every year if knowledge of a firearm equals presumption of culpability and mandatory additional prison time.

OKAY EXPERTS, YOU DECIDE!

Now, it's time to take the pulse of our expert commenters and new visitors. Poll responders are urged to discuss their vote. Speculation is encouraged on how close the decision will be. If you are feeling smug, predict which justices will be on which side of which issue.


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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.


Originally posted to Firearms Law and Policy on Thu Dec 05, 2013 at 05:32 PM PST.

Also republished by Shut Down the NRA.

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Comment Preferences

  •  Tip Jar (8+ / 0-)

    2014 IS COMING. Build up the Senate. Win back the House : 17 seats. Plus!

    by TRPChicago on Thu Dec 05, 2013 at 05:32:14 PM PST

  •  Thanks for breaking it down for us (3+ / 0-)

    I'm bookmarking it, because my brain got full somewhere after Harper's Ferry.

    "They did not succeed in taking away our voice" - Angelique Kidjo - Opening the Lightning In a Bottle concert at Radio City Music Hall in New York City - 2003

    by LilithGardener on Thu Dec 05, 2013 at 06:12:31 PM PST

  •  Really love the word cloud, (2+ / 0-)
    Recommended by:
    LilithGardener, Glen The Plumber

    but, to be honest, I find I'm unable to process case documents like this.

    Words can sometimes, in moments of grace, attain the quality of deeds. --Elie Wiesel

    by a gilas girl on Thu Dec 05, 2013 at 06:15:08 PM PST

    •  The cloud is entirely the work of LilithGardner, (6+ / 0-)

      ... as is a good deal of the formatting for clarity. More important - most important - is the encouragement Lilith gives to the participants in this blog day after day.

      Hats Off and Three cheers to a splendid editor/administrator!

      2014 IS COMING. Build up the Senate. Win back the House : 17 seats. Plus!

      by TRPChicago on Thu Dec 05, 2013 at 06:30:27 PM PST

      [ Parent ]

      •  {blushing} (4+ / 0-)

        We have some great writers at Daily Kos, and since my first group publishing with Shutdown the NRA and then with Support the Dream Defenders, group publishing really lit a fire in me. It's so much better than making all the decisions alone.

        "They did not succeed in taking away our voice" - Angelique Kidjo - Opening the Lightning In a Bottle concert at Radio City Music Hall in New York City - 2003

        by LilithGardener on Thu Dec 05, 2013 at 06:35:45 PM PST

        [ Parent ]

    •  And ten years of a man's life hangs in the balance (5+ / 0-)

      It's way over my head too. It took me a few days just to read the transcript, let alone  convert it and format it.

      What really struck me is how human the Supreme Court justices are. The case is weird, and complicated. Even they got bogged down right from the beginning, interrupting, talking over each other, struggling to wrap their minds around what the central issue is, and what they need to know to sort it out.

      "They did not succeed in taking away our voice" - Angelique Kidjo - Opening the Lightning In a Bottle concert at Radio City Music Hall in New York City - 2003

      by LilithGardener on Thu Dec 05, 2013 at 06:32:49 PM PST

      [ Parent ]

  •  First of All... (2+ / 0-)
    Recommended by:
    TRPChicago, LilithGardener

    Thank you, and congratulations on a truly superb diary! As a non-practicing Law School graduate, my specialty is not criminal law, per se, and I found this examination of the Oral Arguments to be nearly profound. It could not possibly have been easy to coordinate so many diverse, and well-gathered arguments. But I would imagine it was also just a ton of fun.

    I voted for remand or free.

    I will admit to a particular but relevant bias when it comes to abetting = consolidating guilt for all acts both ipso and ex post facto to a crime, because I think it is generally lazy law and unnecessarily damning of the defendant that tends to begin every such case with a "guilty until proven, to our satisfaction, innocent" scenario.

    To my reading of this diary, trial court did not clearly identify, define or establish the fundamental elements in this case. Part of me wants to scream that the Judge was the first of several purveyors of lazy lawyering. Nevertheless, I do believe that knowledge hinges, at least as regards criminality on where the knowledge first exists. Every act proven after that point is specifically relevant to the resulting charges. But, I want to address a potential answer to one question asked within the diary.

    (Lilleth, I share your shame!)

    "On the law, the question is easy to frame: Is continued participation in a drug crime after learning a cohort has a gun sufficient to convict for a firearms offense?"
    Is the defendant guilty of ANY crime someone else commits? The law says, generally, yes. The mere presence of a co-conspirator is enough to breach the conspiracy, in my view. So, I do remain somewhat conflicted with my initial statement. However, I do believe that, given the facts as presented (and trusted) here, I believe the answer is a "No".
    "If the law answer is No, however, the case gets complicated. What more is required - conduct and/or intent to do what, exactly? Is that answerable in the abstract or is it a jury question dependent on the facts of the case? If so, what is the acceptable instruction to the jury?"
    Using our old friend Syllogistic Logic, we have:

    Conduct and Intent
    Conduct or Intent
    Conduct with Intent
    Conduct without Intent
    Neither Conduct Nor Intent (Null)

    I think it is impossible to conclude the veracity of the Null Set in this case.

    actus vs. mens.

    Does defendant have the capacity to be in the position of actus? We really do not know. It is alleged that Defendant was not leading the crime, but rather was present during the commission of the crime. I am presuming defendant was in the car chasing the thieves. That to me indicates the mens to a satisfactory degree. Defense never postulated an unwilling or hostage participant. He chose to be there. Is that enough to convict on Intent? Possibly. It needs more clear instruction, I believe. Lazy lawyering prevented the jury from useful instruction on that point.

    He entered into a vehicle where someone, by previous acts and demonstration, was in possession of a firearm. Is that alone sufficient for conviction of the conduct of the criminal act preceding defendant's entry into the vehicle? I think so, from a common sense perspective. Defendant had the knowledge at some point previous to entering the vehicle that a firearm had been actively used in the commission of the criminal act. That firearm went along for the ride to chase the thieves. Abetting says that everyone in the vehicle has equal animas ex post. (That's what I hate.)

    I think Lilleth's questions are not only relevant, but central to the issue of guilt, which was simply not considered at trial or appeal. They should have been. These were not unknowns, they were elements simply unexamined, unspoken, and not covered in the jury instructions.

    That is, to my mind, reversible error. I disagree with Lilleth on one point. Defendant's Attorney did not introduce these facts either. Lazy lawyering.

    For these reasons, I believe that SCOTUS will reverse, and remand. Getting a second bite is always advantageous, but only to the one eating the apple. The apple never wins in these instances. (Well, rarely.)

    I loved the mental exercise you provided, and it was very insightful as to understanding the power of your group's inquiry and analysis regarding this case. Thank you so very much for it.

    Nurse Kelley says my writing is brilliant and my soul is shiny - who am I to argue?
    Economic
    Left/Right: -7.75
    Social Libertarian/Authoritarian: -4.51

    by Bud Fields on Fri Dec 06, 2013 at 01:11:16 AM PST

    •  Thanks so much! I have a question for you ... (1+ / 0-)
      Recommended by:
      LilithGardener

      What's your reaction to the issue of whether there was even a crime at the point the gun was fired? This was a no brainer for me and I still think it was one continuous drug deal gone bad. But several of the justices made serious, non-fumbling points that sound as if they think the underlying crime might have been over at the time the shots were fired. That would throw a wrench into everyone's analysis!

      *          *

      As for your comment, the facts were that one perp shared the back seat of the car with one of the buyers. The buyer-now-thief slugged him (as I recall, the government in its SCOTUS brief said it was Rosemond who got hit, though that was disputed) and ran off with the marijuana. Shots were fired. There was a "monkey drill" and Rosemond and his co-perp Joseph (the one who ratted Rosemond out) switched places. Then the driver took off down the road with the the other perps. Testimony was literally all over the map, with the switching of seats thoroughly muddling who had the gun and who shot. The cops' first search of the car did not turn up the gun. The prosecutor tried the case as if Rosemond was either the shooter or the aider/abetter and it didn't make any difference!

      The trial must have been a mess. It's likely everyone was to blame for that. That's why I clarified up front that the appellate lawyers were not the trial lawyers.

      I'm withholding my attitudes about the outcome so as not to pollute people's reactions further. Our original commenters were so on target about what was important and why, and without 55 minutes of questions!

      2014 IS COMING. Build up the Senate. Win back the House : 17 seats. Plus!

      by TRPChicago on Fri Dec 06, 2013 at 06:20:48 AM PST

      [ Parent ]

      •  I must concur with you regarding your last (2+ / 0-)
        Recommended by:
        LilithGardener, TRPChicago

        paragraph. I was truly struck by that realization as I read through the diary.

        I would say that, as to your first para in your second part:

        1. Generally, the only commutable fact is that Rosamund was, in fact, in the vehicle at some time. I would have to wonder if the shots were actually fired from within the vehicle, because there is no relevant timeline developed--at any point looking at the docs. Additionally, it would seem to me that defense could have at least attempted to establish an affirmative defense that the gun, not being found in the car during the first search, wasn't in the vehicle at the time it was fired. Where was it found, and who was sitting in the closest proximity? (It could have been Rosamund, idk.)

        2. It seems the Prosecution can't have the second charge without establishing the facts of the first charge. I too would consider the legitimacy of either charge. Intent to commit could potentially be successful, as it seems not to have been argued. I would still require defense to answer the allegations of the prosecutor, in either case.

        3. I have no surprise that appellate counsel was different than trial counsel. Public counsel? Would you want to swim through this bowl of spaghetti a second time, with no landmarks? :)

        This would make a really good 1L case. Most decent 1Ls would more likely provided better counsel--on both sides AND the bench. IMHO, of course. YMMV. :)

        Nurse Kelley says my writing is brilliant and my soul is shiny - who am I to argue?
        Economic
        Left/Right: -7.75
        Social Libertarian/Authoritarian: -4.51

        by Bud Fields on Sun Dec 08, 2013 at 12:09:29 AM PST

        [ Parent ]

  •  This is Terrific - Congrats (1+ / 0-)
    Recommended by:
    LilithGardener

    I have to congratulate you on this article.

    I think you have invented a new way (and a very interesting, educational, insightful, and revealing way) of reporting a court case.

    I understand so much more about gun law, criminal law, and how the SC works from reading this article.

    This is really terrific, and you should think about making it into a book.  I think you would have a big audience.

    "The fool doth think he is wise: the wise man knows himself to be a fool" - W. Shakespeare

    by Hugh Jim Bissell on Fri Dec 06, 2013 at 11:20:39 AM PST

    •  The Poll voting (1+ / 0-)
      Recommended by:
      LilithGardener

      I notice at this time the votes in the poll are perfectly split.  

      I guess this is why we have (need) a Supreme Court.

      "The fool doth think he is wise: the wise man knows himself to be a fool" - W. Shakespeare

      by Hugh Jim Bissell on Fri Dec 06, 2013 at 11:30:30 AM PST

      [ Parent ]

      •  The Court does not usually tie, but it can ... (1+ / 0-)
        Recommended by:
        LilithGardener

        ... and when it does, the lower court ruling stands.

        I don't think that will happen in this case. We could get a 6-3 or even 7-2 decision and SCOTUS will resolve the Circuit Court split.

        However, there are many loose threads. So many that this may be a case where the justices write opinions concurring with the decision but have their own rationale and want to send up their own signals. They sometimes wind up so divided that it's a law school puzzlement to divine what the pivotal rationale actually was and what is dicta. ("Dicta" to lawyers - no matter the literal Latin is - means preachments not necessary to the decision and therefore arguably not binding on lower courts.)

        2014 IS COMING. Build up the Senate. Win back the House : 17 seats. Plus!

        by TRPChicago on Fri Dec 06, 2013 at 11:54:04 AM PST

        [ Parent ]

    •  Thanks. It's my guilty pleasure. (1+ / 0-)
      Recommended by:
      LilithGardener

      Let's us keep populating FLAP (and the rest of Kos, for that matter) with thought-provoking articles. Someone out there is reading them ...

      ... and who knows who'll ultimately be influenced by yours, in particular, for you are changing some people's paradigms whether they admit it or not.

      2014 IS COMING. Build up the Senate. Win back the House : 17 seats. Plus!

      by TRPChicago on Fri Dec 06, 2013 at 11:41:57 AM PST

      [ Parent ]

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