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.