by Derek Gilna
A recent Supreme Court ruling in Rosemond v. United States has seriously
limited the impact of the “Aiding and Abetting” aspect of 18 USC 924(c), forcing prosecutors to 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.
The key aspect is the “advance knowledge” aspect, which must be established
now by prosecutors to prevail on a gun enhancement. Rosemond’s
conviction was reversed and remanded because the district court judge
failed to instruct the jury as to the “advance knowledge” requirement.
Of course, prosecutors know that 924(c) brings with it a 5-year mandatory
minimum sentence, so the importance of this development can not be
overemphasized. Too often, trial judges carelessly tie the hands of
defense attorneys with broadly-worded instructions that do not emphasize
that all of the elements of a 924(c) charge must be proven to convict.
The Rosemond case concerned a defendant who claimed that he was only
involved in a marijuana sale, and had no advance knowledge that a gun
would come into play. Ironically, of the five individuals involved in
the crime, only Rosemond was charged, the other four receiving immunity
for their testimony.
The justices appear to disagree on whether the
decision is one of procedure or substance, with Justices Kagan and
Alito sparring over the concepts of “motive” and “intent,” opening the
door to an argument for retroactivity, because the operative issue
appears to be the “mens rea,” or criminal intent of the defendant. Like
the Alleyne case, however, this will be a subject of further
litigation. Hopefully, this issue will have impact in post-conviction
motions, and bring relief to many individuals.
