Aiding and Abetting

The U.S. Supreme Court handed down a long needed update ot the law of aiding and abetting. Justice Kagan gave us an opinion in Rosemund v. United States, No. 12-895, — U.S. —, analyzing in depth, how to evaluate whether an individual was aiding and abetting in the commission of a crime. Not only that, but Justice Kagan penned the opinion with a degree of panache that perhaps the Hon. Learned Hand could appreciate. In this split decision case, Justices Roberts, Kennedy, Ginsberg, Breyer and Sotomeyer joined the opinion.

The facts of the case make for a comedy, or at least an episode of “Weeds.” Vashti Perez found herself in possession of one pound of marijuana, and determined she’d like to sell it to an individual at a local park. She got two friends, Ronald Joseph and petitioner Justus Rosemund, and they drove to the park. The buyer got into the back seat of the car, where the passenger showed him the marijuana. Rather than handing over the money, the buyer punched the passenger in the face, got out of the car, and ran away. At this point one of the male passenger, and Kagan notes “it is disputed which one,” pulled out a weapon and began firing. The buyer escaped, and the three “would be drug dealers” were arrested. All were charged with not just drug trafficking, but also using a gun in connection with the drug trafficking, violating §924(c), and resulting in a five year mandatory minimum sentence. Rosemund alleged that Joseph in fact had the gun, and that he had no idea the gun would be brought to the transaction.

It is a recognized principle of criminal law that individuals who help other individuals commit crimes, are equally guilty of the crime; this is aiding and abetting liability. This case carries two crimes, not wholly independent of each other. The first, the drug transaction, and the second, bringing a gun to the drug transaction. Formerly, “the quality of assistance was immaterial, so long as the accomplice did something to aid the crime.” In that situation Rosemund could be guilty of aiding in both crimes, if he knew only of the gun, or only of the drugs. The court instead states that aiding and abetting begins at the point when the individual discovers the information and can opt out of the crime. That is, when the individual learns of the gun, he becomes an aider or abettor, because he has chosen, with full knowledge, to participate in that illegal scheme.

The new rule (or revised rule) is that a jury must determine when an individual had knowledge of the crime, and whether at that point he or she opted out, or whether they assisted in committing the crime. This does not look to elements of the crime, it looks to knowledge.

When Should You Plead Guilty?

I had an individual ask me today about a real dilemma he had, that he, unfortunately, solved through his own ignorance and laziness. He was stopped by an officer for a broken taillight, late at night. As is the norm for most nighttime stops, the man was given the roadside sobriety tests. He failed. He was then taken into jail, and blew in the breathalyzer. He decided to stay the night in jail and in the morning was brought to court. Before talking to the judge, the prosecutor showed the man the results of his breathalyzer. He blew a .09, and he plead guilty to Driving Under the Influence.

Now, I understand, you’re scared, you’re tired from spending the night on a cot, and that judge looks awful intimidating to be someone’s grandmother. But do yourself a favor: when they ask how do you plead, ALWAYS ALWAYS ALWAYS  answer , “not guilty.”

You can change your “not guilty” plea at any time. You’re even expected to plead not guilty at that first hearing.

You basically can’t change your “guilty” plea. You have to show, in short, mental incompetence. Either you’re still drunk or high, you don’t speak English, you have an IQ so low that you can’t understand what you’re doing, or something similar. And when you can change your guilty plea, it has to be done in a very short time. Usually ten days.

This individual had no mental handicap. He spoke English. And he waited twelve days before calling me. He is stuck with his guilty plea, even though he had a good chance of getting off. Now, the only options open to him are trying to get a lighter sentence, and trying to expunge his record (because now he has one).

So when should you plead guilty? Certainly not at your first hearing, and maybe never. At the very least, talk to a lawyer before you plead. Talk to multiple lawyers if that helps you. Talk to your friends, and examine all of the evidence the government has against you. Don’t give up your right to due process.

A Little Post Conviction Discussion

I’m a little late posting this week, mainly because a whole lot came up regarding the very issue I am discussing here. Post conviction work is probably my favorite place to work in the law and, unfortunately, a lot of it goes to attorneys who are court appointed and are thoroughly bored by their jobs. But post conviction appeals can be some of the most rewarding and most galvanizing work that is out there, and the gratification you’ll receive from the client and feel for your worthwhile work will almost outweigh the disappointment when you lose the appeal. So let’s talk post conviction, shall we?

Post Conviction relief often focuses on a few set arguments: ineffective assistance of counsel, breach of one part or another of a fourth amendment right, and the good ole standby, prosecutorial misconduct. (Just as a side not folks, take the arguments professionally, if you’re being called ineffective, don’t let it make you mad, sometimes you’re just a vehicle to getting a second shot at an argument. Sometimes its just the appellate lawyer’s job to call anyone she can incompetent. I usually apologize to the person for having to take that step, but please, don’t take offense.)

Back to prosecutorial misconduct: I’ve read arguments which are great examples of misconduct (usually later deemed harmless error) and I’ve seen arguments that are just a shot in the dark. Rarely have I seen a win, and never in one of my own cases, based on a misconduct argument. But a momentous decision has just come down from the federal courts, and I’d like to discuss it a little, and its possible implications.

The Washington D.C. Circuit Court of appeals just disbarred a federal prosecutor, an action that hasn’t occurred in, reportedly, over ten years. Former assistant U.S. attorney  G. Paul Howes was disbarred for his conduct in a number of high profile murder and gang cases. Howes apparently used vouchers, intended to pay for witnesses’ reasonable expenses, to bribe informants’ relatives and significant others. Not only that, but Howes then repeatedly lied and hid the conduct from the investigators and the court.

Interestingly, the Board on Professional Responsibility voted only for a suspension for Howes’ conduct. Appently, in their mind, bribery and perjury aren’t *that* big of a deal. The Circuit Court disagreed. They disbarred him.

Nine convicted persons have already gotten reduced sentences based on the revelation of the misconduct. How many more are to follow is anyone’s guess, but its certainly a case any appeals lawyer would jump to take on.

Systemically, for appeals lawyers everywhere, not just in Washington DC, does this mean anything? My answer is: Maybe. Although the judicial decision against Howes is not precedent in any way except for cases against other prosecutors, the nine convicted persons’s appeals certainly can be. I also don’t think its necessary to get to the level that Howe was at to find it could be prosecutorial misconduct. There is no need to reach the level of disbarment to achieve something more than a harmless error through misconduct.

If you come upon an issue of prosecutorial misconduct, even if DC Circuit isn’t in your jurisdiction, and even if you’re in a state court, I think you should try to draw the connection. The strength of your argument can only be increased by showing how one instance of prosecutorial misconduct can truly be a long standing practice of misconduct. So try it, and let me know how it goes!