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Federal Criminal Appeal Explores Extent of “aiding and Abetting” Liability

Kish Law LLC

We do lots of federal criminal appeals, and one such case was argued earlier this week in the United States Supreme Court. The case is Rosemond v. United States, and it involves a question that comes up frequently in federal criminal cases. Federal prosecutors often try to hold one person accountable for the actions of another person under a law that prohibits a person from “aiding and abetting” a crime. The person who does the crime is the “principal”, and the question in Rosemond is whether the “aider and abettor” needs to have the same state of mind, or “mens rea”, as the person who does the criminal act.

They say you always “remember your first”, so I have a fond memory of the initial time (23 years ago, time flies!) I won an appeal of a federal criminal conviction, which also involved the aiding and abetting theory of liability. My case involved a young man who foolishly drove other guys who committed a series of armed bank robberies. I was able to convince the Court of Appeals that for the very first of those robberies, my client could not be held accountable for the gun that was used inside the bank. The Court of Appeals agreed that under the “aiding and abetting” theory of liability there must be proof that the aider and abettor had knowledge of the gun and the same intent or purpose as the other person who does the dirty deed. In my case, there was no proof that my guy knew about and agreed with the use of the very first gun before it was used. On appeal, I was able to convince the judges to reverse the conviction for use of that first gun, and thus lopped 20 years off my client’s sentence.

The Rosemond case argued in the Supreme Court earlier this week has a somewhat similar fact pattern. Mr. Rosemond was in a car with two other persons, all of whom were trying to sell a pound of marijuana (why are so many of the cases that end up in the Supreme Court such small potatoes, in the big scheme of things?). The supposed buyer, however, instead ran off with the dope. Two of the guys got out of the car, and one (and only one) fired a gun in the direction of the thief. Both men then drove away. The government’s main theory was that Rosemond was the shooter. Witnesses disputed the shooter’s identity, so the government also alleged that even if Rosemond was not the shooter, he was an “aider and abetter”, and should therefore be held just as accountable as the person who fired the weapon .

Rosemond wanted the trial judge to tell the jury that it must find that he “intentionally … facilitate[d] … the use of the firearm” to convict. But the court instructed, instead, that the jury need find only that Rosemond “knew his cohort used a firearm” and that Rosemond “actively participated in the drug crime.” This led to two questions for the Supreme Court: (1) is “simple knowledge” enough to convict of aiding and abetting, or is “purpose” required; and (2) can a defendant be found guilty merely because he intended to participate in the underlying drug crime, or must there be evidence that he additionally intended to have something to do with or approved of the use of the firearm?

Again, while the facts are kind of “small potatoes”, the consequences are huge. Use of a gun in a federal criminal case often leads to mandatory and consecutive prison terms of 5, 7, 10 years, and up to life. Furthermore, the whole idea of “aiding and abetting” liability is used quite often in federal criminal prosecutions, from mundane drug deals to the huge white collar fraud prosecutions that often take up years of our time. This is an important case, and we will follow it closely. I certainly hope that my “first” win is among the cases that lead the Justices to side with the defense on this important issue.

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