Oral Argument Legal Case Summary

Oral Audio Transcript(Beta version)

. And you cannot include from that there is so much other evidence. 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. You know, I hate to be accused of resisting the hypothetical because in that case, I don't think it matters whether you have this subjective desire, like you think, boy, I sure wish those firearms weren't involved. But because at that point, your goal is to facilitate and make sure that this, uh, bang up the gun, it succeeds. The whole thing with the gun. So you don't have to, you don't have to. But that is your purpose. We would say that that is the purpose in facilitating. And the question is not just that. If you intend to crime, if you intend to crime and you know that the crime is being conducted with firearms, that's enough. I don't think that that, I think that you have to have the foreknowledge. And I think that there is certainly no way. Yes, beforehand, beforehand. Beforehand. You know beforehand that the crime is going to be perpetrated with firearms. That's all you do. You know beforehand and you facilitate the crime. I think that you, the question is whether it, you can't even conceive of the circumstance where knowing, that is participation, knowing that a firearm would be used or. Well, give me an example of that. For example, if you agree to drive your neighbor to pick up drugs at someplace in Philadelphia or, let's make it Pittsburgh, and then you drive him to West Virginia to spend the weekend dealing on the way there, he tells you the guy who distributed these to me, you know, he always carries a darenjor in his boot. And at that point, you don't facilitate his use or carriage of the gun with respect to the drug distribution offense. It has no role in the crime. And so I think you can conceive of enough. I don't understand the example. The, the, the alleged aider in a better learns about this after it's happened. Yes, that's the idea. But he's still facilitating the drug distribution offense at a time he knows that a gun is, you know, being carried in relation to it

. Well, what do you mean? Maybe this is the same as Justice Scalia's hypothetical, but let me try it. Suppose that two guys have a meeting and it's in a place that's where there's an electronic eavesdropping device. In fact, there's a camera. So it's all recorded. So we know exactly what was said. And the principle says, here's the deal. I'm going to go rob a convenience store and I'm going to carry a gun. And the, the aider in the better says, well, all right, I'm in on the, you know, I'm, I'm in on robbing the convenience store, but I don't have anything to do with the gun. I think you should carry a baseball bat. The principle says, no, that's the deal. I'm robbing the store. I'm carrying a gun. Take it or leave it. Are you going to drive me there? And the, the other guy says, I hate guns. I don't want to have anything to do with guns. I hate this idea about the guns. They go back and forth. And the principle says, finally, look, this is it. This is the deal. Robbing the store. I'm using a gun. You're going to help me or not. And the guy says, well, all right, I'm going to drive you. But I want to note it for the record that I'm opposed. I'm opposed to the use of a gun. And at that point, it's his purpose to facilitate a transaction and to, you know, help it succeed. And it's at a time when he knows that a gun will be used. And I think you can conclude that it's his purpose. So I don't really see it. I can't, I can't think of a situation where a person facilitates the crime, knows what the crime is going to be, knows that a gun is going to be used, but doesn't intend where the gun to be used

. In those two situations, knowledge and intent seem to me to be, to be the same thing. The question is whether there are, because there are just no instances that are more like my hypothetical than like your hypothetical. So you don't even have to bother troubling the jury about whether they had the intent. Well, I didn't understand your hypothetical. So you could give it to me. Well, the point of it is that at a time when you are, when you are still participating in the underlying offense, the drug trafficking offense, you know that a gun is being carried in relation to it. But you don't have any intent to facilitate it. You don't care one way or the other if it gets used. You know an intent to facilitate it, and you don't facilitate it. And the question is whether it's your, Well, but that's a conclusion. The jury seems to me could say you do facilitate it if in these hypotheticals you drive the car. But with knowledge that the gun might be used. No, but the gun is not going to be used in your act of facilitation. It may be used over in, well, the mission is that you could find out why. And the question would never have been used if you didn't drive the car. But I think the jury could equally well conclude that you did not intend to facilitate the use of the gun. And you did not facilitate the use of the gun. And the question is whether you even need to trouble the jury with it. Because the government's instruction conclusively presumes both knowledge or concludes conclusively presumes intent from knowledge alone. And it conclusively presumes facilitation of the gun. In my, in my hypothetical, could a rational jury say he knew about it, but he didn't intend it? I think that in your case with the foreign knowledge and where he, you know, facilitates he carries the gun and he carries the person to the offense. I think that that would be a tough slog in a case. But there are as a case where there isn't foreign knowledge. And the government never argued that he knew before the gun, before the gun was fired. Well, in my case, I'll finish. I want to ask another question about this. But in my case, if the judge had given the instruction, it's enough that he knew about it. He facilitated the crime and he knew there was a gun. Would that be error? I think it would be error because you're instructing them on the wrong elements. It might be harmless error, but there is the point, we both sides agree here that you have to facilitate the crime of conviction and you have to intend that the gun be used

. I don't think it's ever harmless error to not instruct the jury to do it. You instruct the jury not to find one of the elements of the crime. Well, if indeed intent is necessary, it seems to me he has to instruct the jury to find intent. It's not up to the court to say, well, there surely was intent anyway, so it's harmless error. Well, he has to find it. I think, you know, I'm fine with it being a harmful error to. But my point was merely to note that I think that it is something that you have to instruct the jury on as a prop. Excuse me, but what are we- Even if it's not making a difference? I think what we're driving at here, and I think this is the moment you're resisting. But to me, and as you can tell from my colleague's questions, if you know that someone's carrying a gun and whether you want them to use it or not is irrelevant, if they take it out and use it and you have gone along with them in the crime, you're guilty. Okay? That's what we're driving at. Assume that I believe that. Assume that I believe that if you have knowledge of the gun and that I am participating in the crime with your knowledge of that gun, whether the knowledge is secured before the crime starts or during the crime, if I continue to participate in the crime knowing that you have a gun, then that's knowledge of the gun and intent to facilitate. I thought the example that you were relying on here or the issue that got confused in the briefs was whether or not from the sequence of facts in this case, you can actually discern that intent to facilitate the crime because the alleged shooter, which your client said, was someone else, got jumped into the car and the car took off before anybody could abandon the crime. So what I actually thought this case was about, at what juncture do you instruct the jury to say that you have to be a participant with knowledge of the crime, but you're saying something different right now. You're almost suggesting that there has to be a pre-knowledge that the gun will be used. No, I don't think that there has to be pre-knowledge. My point is this, that there are circumstances I think where you can know of a gun and be participating in the underlying predicate offense and not facilitate the use of the gun. I'm far too much in there, give me an example. For example, if your job, the lowest level guy in a drug organization, you stand on a street corner every night and you hand out drugs, anybody who comes up, you don't carry a gun, nobody is ever carried a gun at that street corner. One that you're doing it and you see that the guy who you work for, his enforcer is coming by and you know he always carries a gun. He walks behind you and you know he's present and around you for about 90 seconds, but during that time you just do exactly what you always did. I think a jury could conclude and I'm not saying that they couldn't conclude otherwise, but they could conclude that he didn't facilitate the use of a carajer again. What would the instruction look like? It would just to, to, to, to, to, what would it look like to capture the difference you're trying to convey? Who would just say that the, that the jury has to find that the defendant facilitated the use or carriage of a gun during an in relation to a crime of violence or drug trafficking offense. Well, they do come up against the government's argument that you don't have to facilitate every element. Right. But that's the thing. Those are what we think would be the proper instruction that they just have to be instructed on the facilitation and on the intent. I think you say that you don't need prior knowledge. I think you need prior knowledge. I think you have to have prior knowledge before you facilitate it

. I think that yeah. Right. So what do you do? You don't need prior knowledge before the whole transaction happens. If you continue to, if there's an act of facilitation, after you know. Right. Exactly. That's all I mean by the absence of prior knowledge. But I mean everyone's your degrees. Mr. L. L. were in the knowledge of the facilitation. You're dealing with all kinds of hypotheticals. But in this case, we had a jury determination that Roseman was the person he was convicted of carrying ammunition. Right. There were two counts of carrying possession of the ammunition. And couldn't one infer from that that if he possessed the ammunition, he was the gun carried. Two things, Justice Ginsburg. First, the government never raises below and it wasn't pressed or passed on below. And so I think under Glover versus United States, this court wouldn't ordinarily consider that in the first instance. We'd leave it for a remand. But secondly, I think that it's not clear enough. I mean, you can't say beyond a reasonable doubt that the error didn't infect that too. Because the jury was instructed four times that you can possess something through constructive possession, through a Confederate. And I think when the jury concludes that he is guilty of a possession offense, which is 924C, as a possession offense, as an aide or a better. And they marked on the jury, on the judges' instruction that he used the gun, he carried the gun, that the jury could have believed that they were, that he constructively possessed the gun. And thereby constructively possessed the ammunition. What was the evidence that the jury had on whether he possessed the ammunition? I think the only evidence of possession was that it was inside the gun that was fired. And I think the jury rejected the idea that he was the shooter because the two eyewitnesses said that the shooter was someone else. The shooter was the guy in the backseat who was Ronald Joseph

. I just didn't know. You said the only evidence was that it was inside the gun. And the only evidence of his, and what was the evidence that he possessed cartridges? No, the only evidence was that the ammunition was inside the gun. And was there any evidence that he had the gun? The evidence that he had the gun was the guy who, the evidence of the other guy, and the evidence of the cartridges are exactly the same. The only evidence was that the cartridges were inside the gun. And the two eyewitnesses were at the scene said that the person got out of the driver's side and the evidence suggests that Mr. Roseman was on the passenger side and that he got out of the backseat and he was in the front seat. So the evidence, I think, is that he was merely in the car and that he was the shooter. And the jury, remember, asked, do we have to answer question three, which was the, all the different ways you can use the gun, if we find him guilty on an aiding in a betting theory, which certainly suggested they did not believe he was the shooter. Did he facilitate the crime after the shots were fired? The government did not ever argue for the solicitation after the shots were fired. I suspect because they only argued that he, that what happened afterwards was evidence he was the shooter. I suspect because they appreciated that the offense was over with. He was only charged with possession of marijuana with intended distribute. When Mr. Gonzalez took off with the marijuana and they lost control, if they went around afterwards, looking for him, which there's not even very much evidence of that. But do we have cases that say that assisting flight immediately after the crime is not aiding in a betting the crime? The crime is over. So everybody said the crime is over. Let's walk home. I am not aware and the government hasn't cited any. I mean, there's, for different crimes, you know, there's, there's different law about whether flight is part of the offense. But in any event, the question is whether that would be aiding in a betting that crime the possession offense or some distinct crime or whether that would be being an accessory after the fact. Is this just a fact of a charge? Is it just flight? I thought there was evidence that they were chasing the people who robbed them. There was no evidence that that intent to chase him was ever communicated to Mr. Rose Mon. Well, he jumps in the car and you know, they're going after them. 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 was, it wasn't charged. It might be, 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've dispute these facts, let's go get them. I think I jumps in the car. It seems to me that that's aiding in a betting the underlying illegal activity. Which knowledge, of course, the firms were fused. I agree. But first, that's not on a theory that the government ever espoused. They never argued that facilitation. And secondly, I don't know that that would be facilitation of possession of marijuana with intended distribute it. That ended under the courts' instructions when they lost control of the marijuana when Mr. Gonzalez disappeared. Gonzalez, I understand your argument about intent, but you also are arguing that the actous, reas instruction was insufficient. You're structuring about what your client did. Yes. It gets necessary for an eater and a better to facilitate every element of a criminal offense. We're not saying that. We are saying that when you have to instruct them, did he facilitate the actual crime of conviction? Because what the government is doing here, what their instruction does, is it conclusively presumes that he facilitated the distinct offense, which this court has said the entirely new crime of 924C from the fact that they did the underlying offense. Their favorite example in the brief is a mail fraud example. But under the government's theory, because you engage in an act of mail fraud, you could be convicted of racketeering without any additional actous reas, because that is a predicate crime to Rico. And that's the thing is, we should just say you can't presume the full offense, facilitation of the full offense, from the fact that you just facilitated. So if there were not, if the drug offense itself were not illegal, there wasn't a drug offense and then the additional firearm element, it wouldn't be necessary for the defendant to facilitate every element of that offense. It's dependent on the fact that there's this other criminal crime. We're just saying that they have to be, that jury just has to be instructed to ask, what did he facilitate the crime of conviction? And they're asking a different question, essentially. And they wouldn't present the same risk that you would convict someone twice and they'd serve two consecutive sentences under the hypothetical you suggest. But we still say they should be asked whether they facilitated the right crime. Well, but the crime of conviction was a drug offense with the use of a firearm, right? It was, I can't work with you. And so I thought, I thought the law is pretty clear that if you facilitate an offense, you do not have to facilitate each element of that offense. So long as you have knowledge that that element existed. And our submission is just that the jury still has to be asked, did he facilitate the crime? This is both sides degree that you have to add that one of the elements is whether they facilitated the crime of conviction. But more precisely, they could be asked, did he facilitate the drug deal knowing that a firearm was going to be used in the drug deal? Would that satisfy you? No, we think they're asking both the wrong questions then. But is our submission? I don't understand what your position is

. He has to use the gun himself. No, his, our only position is that they have to ask the jury that he facilitated the 924C offense. I think it would help if you told us what the definition of the crime is. We'll talk about the jury instructions later. Justice Scalia is asking whether or not if you facilitate the drug crime knowing that a weapon is being carried, if that is sufficient for aiding an abedie, as a legal matter. Forget the jury instructions. And it's our submission that you have to both facilitate the 924C offense and that you have to have the intent that the gun be used or carried during an embellishment to the crime. Does that have to do with the additional 120 months? The underlying crime is 48 months, and then the gun makes it 120 months more. That's right. But it's, I think 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 also have facilitated the other. And we just don't think that that is something that you can say with 100 percent certainty because it's a criminal law. Well, it isn't criminal law replete with crimes which have lesser included offenses as part of them. So wouldn't your rule be a very difficult one to apply because it would suggest that the person had to facilitate some part of the crime that was not a part of a lesser included offense? There are some courts that apply this, our rationale to lesser included as well. But lesser included crimes are the same crime for block breaker purposes. You can't be sentenced to both be greater and the lesser. And I think most courts require that you show the intent that the gun be used. They don't as often require that you facilitate the discrete use of or encourage the crime. Well, let me go back to my earlier hypothetical about taped conversations. Suppose that the alleged aider and a better there says, I intend for you to use the gun. I have that intent. However, I'm not going to do one thing to help you get the gun or use the gun. I don't want to. I'm not going to. There's an act of serious problem there because he doesn't facilitate the use of the gun. Well, he may say that he's not going to facilitate it, but depending on what his actions are, he may very well may facilitate it. If he drives the gun and the person to the crime, you know, that is an act of facilitation. And so, you know, it doesn't depend on what the person says. It depends on what the person has. I just want to make clear and we'll get back to the bank robbery hypothetical driving the car knowing that a gun is being carried and might be used is or is not sufficient facilitation to make you an aider and a better in the drug in the gun aspect of the crime

. I think that that would be enough because you're carrying the gun as well as the person. If I can reserve it, you are not carrying it. Your cohort is carrying it. Oh, yes, you're carrying your, you're by your eye. The gun is on the car. Our whole heart has the gun. The cohort is going to rob the bank. Are you, or are you not, eating and abetting because you're facilitating it by driving the car? Yes or no? We would say that yes, that is certainly enough to go to the jury and that I think that that would be enough to show that because you're carrying both the gun on the, your cohort and you're carrying the cohort, that that would be enough to facilitate that. I would like to. But only you say it's enough to go to the jury and what you would ask the jury to find is intent, right? That's correct. You would still find most facts that were stated by Justice Kennedy. In addition, the jury would have to find intent. That is correct. There are, I'd like to reserve the remainder of my time for a bottle. Thank you, counsel. Mr. Bash? Mr. Chief Justice and may it please the Court. I'd like to start by defining exactly what the government intends the men's rail committee requirement is for Aiding and Avedding and then give the Court an example to examples to show how it differs both from what Mr. Elwood is saying and how it differs from a knowledge standard. Aiding and Avedding requires an intent to facilitate or encourage the Commission of Defense. And I think that breaks down into two constituent parts. One, an intent to make some action easier or to encourage some action by the principle, two, the knowledge that the principle intends to commit a crime of which that action is a constituent part. What Mr. Elwood is saying is something quite different. It's that you have to intend that the crime succeed. If that's true, all paid accomplices are out. If they don't intend that the crime succeed. If the bank robbers say, hey, can you look the other way security guard while we go into the bank will give you $1,000 if you do it? That's not Aiding and Avedding under his theory. If the security guard says, well, I only wanted $1,000

. I didn't care whether you ultimately succeeded in the bank. We give an example in our brief. If the person actually gives the gun, so it meets the actous, reas requirement that Mr. Elwood has proposed, he actually gives the gun to somebody, not because he cares if that person commits the crime, which he knows he intends to commit, but as a favor or as a threat. Kagan, that's a very fanciful hypothetical because the one thing the guard is going to know that if the robber gets caught, he's in great jeopardy of being caught himself and convicted. Of course, he wants the crime to succeed because he doesn't want the people to be there and being pressured by investigators or whatever to say, okay, what, you know, who was in on this with you? So, if you're being paid for a crime to assist in the commission of the crime, you want it to succeed? Well, if your payment's not coming from the loot, I don't think that's really true, but let's take that as true as given. I mean, go back to my example about the guy that's just doing a favor from somebody. Sure, you can use my gun to commit a robbery. I don't have any stake in it if you decide tomorrow that you don't want to commit the robbery. He has a stake in it. If the guy is caught, the police are going to say, where did you get the gun? He may turn them in or not, but it's certainly a danger, a danger that wouldn't be there if the crime succeeded. I don't think that's the sort of intent requirement that Mr. Elwood is talking about. I mean, I think he's talking about an intent that's abstracted from the idea that if you get caught, everybody might go to jail. I mean, that sort of seems to beg the question of whether you're actually going to be liable for the gun. Why don't we just take it that we have a crime, the underlying crime. It's a 48-month crime. And then if you have a gun in connection with that crime, it becomes 120 months consecutive. 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 get ten years of your life for government proving no more than the 48-month charge is a bit much. It's not proving no more than the 48-month charge. And I'll just as a footnote, ten years only for gun as fired. It's five years if it's carried or used, and which obviously creates a much greater danger to people's lives and property if it's fired. But it's not only proving that you facilitated the drug offense. It's facilitating the drug offense with the four knowledge that a gun was going to be involved in it. And now this, but this instruction at J196, say it says that the defendant knew his cohort used the firearm. It really should say that knew his cohort would carry a firearm. Justice Kennedy, two points. Because when I read this, I thought, well, given these confusing facts, a jury might think that there's liability if he knew that a firearm was youth, which is a very odd interpretation, but that's the instruction lends itself to that interpretation. Justice Kennedy, that is an odd interpretation, and it's wrong, and we do not contend that liability could be imposed if you learned of the gun only after your participation ended. A couple points on that. But do you agree that taken by itself, that one could be read that way? Well, I don't think read in context of the full instruction. If you look at the description, it's taken by itself. So not the instruction taken by itself, but one phrase in the instruction taken by itself. I think it's possible, but I think if you read it in the context of the full charge and what reasonable jurors would think, you have the formulation right above that on page 196 that mirrors exactly the Pione standard. And I don't think reasonable jurors reading that in conjunction with the more specific instruction on count two could think that he could be liable at this participation ended only after the firearm was used. And Justice Kennedy, nobody below thought that, because Petitioner never objected on the ground that the particular wording of this instruction allowed conviction if you gained knowledge only after your participation. So he proposed to propose a different instruction that departed from the instruction that was given on that point. Mr. Chief Justice, first of all, under Rule 30, it's not enough to propose an alternative instruction that does not contain the defect. You have to lay out the specific grounds for your objection. He did not do that here, so it should be plain error review. That's doubly true here where his instruction had its own error. His instruction would have required intentional facilitation of the gun, which is the question on which this Court granted Sir Shurari. His instruction had two wrongs don't make it right. Well, two wrongs don't make it right, but he certainly did not comply with the Rule 30 standard for raising the objection with respect to four knowledge that he's proposing now. So at minimum, that should be reviewed for plain error. In addition, even if the Court believes that we waive the harmless error argument by not raising it below with respect to his primary argument, the Court should certainly hear our plain error, our harmless error argument with respect to the ammunition counts with respect to instructional error that he did not raise below. Mr. Chief Justice, look at his instruction and think about the bank robbery hypothetical with the driver of the car. His number two is that they intentionally took some action to facilitate and encourage the use of the firearm. I think that would be an okay instruction in the bank robbery hypothetical. It would be an- It would be an- He drove the car. The principal object was to rob the bank not to use the firearm, but he facilitated the use of the firearm. I can see that a judge could give that instruction. I think the only way petitioner fits that instruction into his view of the law is because the driver started out driving the people to the bank so he says, oh, well, you're satisfying my act as Reyes' requirement because you actually transported the guns to the bank, but tweak the hypothetical a little bit. Suppose the getaway driver is paid only to show up at the end and to, you know, ferry the bank robbers away. He knows all along that it's going to be a firearm offense. I'm pretty sure Mr. L

. A couple points on that. But do you agree that taken by itself, that one could be read that way? Well, I don't think read in context of the full instruction. If you look at the description, it's taken by itself. So not the instruction taken by itself, but one phrase in the instruction taken by itself. I think it's possible, but I think if you read it in the context of the full charge and what reasonable jurors would think, you have the formulation right above that on page 196 that mirrors exactly the Pione standard. And I don't think reasonable jurors reading that in conjunction with the more specific instruction on count two could think that he could be liable at this participation ended only after the firearm was used. And Justice Kennedy, nobody below thought that, because Petitioner never objected on the ground that the particular wording of this instruction allowed conviction if you gained knowledge only after your participation. So he proposed to propose a different instruction that departed from the instruction that was given on that point. Mr. Chief Justice, first of all, under Rule 30, it's not enough to propose an alternative instruction that does not contain the defect. You have to lay out the specific grounds for your objection. He did not do that here, so it should be plain error review. That's doubly true here where his instruction had its own error. His instruction would have required intentional facilitation of the gun, which is the question on which this Court granted Sir Shurari. His instruction had two wrongs don't make it right. Well, two wrongs don't make it right, but he certainly did not comply with the Rule 30 standard for raising the objection with respect to four knowledge that he's proposing now. So at minimum, that should be reviewed for plain error. In addition, even if the Court believes that we waive the harmless error argument by not raising it below with respect to his primary argument, the Court should certainly hear our plain error, our harmless error argument with respect to the ammunition counts with respect to instructional error that he did not raise below. Mr. Chief Justice, look at his instruction and think about the bank robbery hypothetical with the driver of the car. His number two is that they intentionally took some action to facilitate and encourage the use of the firearm. I think that would be an okay instruction in the bank robbery hypothetical. It would be an- It would be an- He drove the car. The principal object was to rob the bank not to use the firearm, but he facilitated the use of the firearm. I can see that a judge could give that instruction. I think the only way petitioner fits that instruction into his view of the law is because the driver started out driving the people to the bank so he says, oh, well, you're satisfying my act as Reyes' requirement because you actually transported the guns to the bank, but tweak the hypothetical a little bit. Suppose the getaway driver is paid only to show up at the end and to, you know, ferry the bank robbers away. He knows all along that it's going to be a firearm offense. I'm pretty sure Mr. L. Wood would say because you took no act facilitating the gun in that case. You only sort of showed up at the end, even though you knew a gun would be used, that that's not the facilitation. So I take your point, Justice Kennedy, that in a wide swath of cases it may not matter, but I think in some cases it is going to matter and take his intent requirement. I mean, the person that lends the gun just to be a good guy, not because he cares about the offense. I'm pretty sure he's out. And if the jury is convinced, hey, I knew he was going to commit a robbery or an assault, but I just did not care. If the jury is convinced by that, he is acquitted, and that can't possibly be right. He would not be guilty of any 924C offense at all. I mean, not only the 10 years. Could you talk practically about what the difficulties are for the government in these scenarios? It's nice to put hypotheticals in where you know where you say someone new XY and Z. The reality is that in most cases you don't. Occasionally you get a co-conspirator that will tell you, but in most cases you have just the act. Defendant is present during a crime. A gun is pulled and he leaves with his cohorts. You don't know whether he had a dance 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? If he continued participating after he learned about that, that's your point, right? That's your point. Yes. If he learned about the gun and said, hey, I'm asking. So isn't this really an argument about how you define facilitation? You're not arguing that some form of participation in the crime with knowledge that the gun is being used is required. You're really arguing about how far the proof has to go. Well, your adversary keeps saying near knowledge that the gun is being used is not enough. I think it's more qualitative than that and the question suggests it's purely quantitative. It's qualitative in the sense that the facilitation can relate to either element. So it can relate to the gun in particular or this could be the guy that set up the drug deal knowing that a gun would be involved or set up the robbery, knowing that a gun would be involved. I think you see in the court appeals cases here the practical difficulties that come in, because although most courts of appeals I think eight have technically adopted the position that you have to facilitate the gun in a direct way, if you look at the actual holdings of the cases, it doesn't differ in practical application from our approach. There's one case, I think it's price out of the third circuit where the guy may have learned of the gun, and I may have the case name wrong, but the guy learned of the gun only as the robbery was taking place, but he continued to participate in the robbery while his Confederate brandish the gun, he collected the money and so forth. And as far as your question about the practical problems, I mean, I think explaining to a jury, what does it mean to facilitate the gun in a specific way during a crime like that is incredibly difficult. I mean, we say in the brief, what if you're exchanging the money while the other person is brandishing the firearm? Maybe that person would say it. Sotomayor, what's so hard about saying did you have knowledge that the gun would be used either, and you facilitate, and you put you continue to facilitate the crime? We agree that that is the law. Well, Mr

. Wood would say because you took no act facilitating the gun in that case. You only sort of showed up at the end, even though you knew a gun would be used, that that's not the facilitation. So I take your point, Justice Kennedy, that in a wide swath of cases it may not matter, but I think in some cases it is going to matter and take his intent requirement. I mean, the person that lends the gun just to be a good guy, not because he cares about the offense. I'm pretty sure he's out. And if the jury is convinced, hey, I knew he was going to commit a robbery or an assault, but I just did not care. If the jury is convinced by that, he is acquitted, and that can't possibly be right. He would not be guilty of any 924C offense at all. I mean, not only the 10 years. Could you talk practically about what the difficulties are for the government in these scenarios? It's nice to put hypotheticals in where you know where you say someone new XY and Z. The reality is that in most cases you don't. Occasionally you get a co-conspirator that will tell you, but in most cases you have just the act. Defendant is present during a crime. A gun is pulled and he leaves with his cohorts. You don't know whether he had a dance 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? If he continued participating after he learned about that, that's your point, right? That's your point. Yes. If he learned about the gun and said, hey, I'm asking. So isn't this really an argument about how you define facilitation? You're not arguing that some form of participation in the crime with knowledge that the gun is being used is required. You're really arguing about how far the proof has to go. Well, your adversary keeps saying near knowledge that the gun is being used is not enough. I think it's more qualitative than that and the question suggests it's purely quantitative. It's qualitative in the sense that the facilitation can relate to either element. So it can relate to the gun in particular or this could be the guy that set up the drug deal knowing that a gun would be involved or set up the robbery, knowing that a gun would be involved. I think you see in the court appeals cases here the practical difficulties that come in, because although most courts of appeals I think eight have technically adopted the position that you have to facilitate the gun in a direct way, if you look at the actual holdings of the cases, it doesn't differ in practical application from our approach. There's one case, I think it's price out of the third circuit where the guy may have learned of the gun, and I may have the case name wrong, but the guy learned of the gun only as the robbery was taking place, but he continued to participate in the robbery while his Confederate brandish the gun, he collected the money and so forth. And as far as your question about the practical problems, I mean, I think explaining to a jury, what does it mean to facilitate the gun in a specific way during a crime like that is incredibly difficult. I mean, we say in the brief, what if you're exchanging the money while the other person is brandishing the firearm? Maybe that person would say it. Sotomayor, what's so hard about saying did you have knowledge that the gun would be used either, and you facilitate, and you put you continue to facilitate the crime? We agree that that is the law. Well, Mr. Bash, what about this case? Suppose that there are two guys and they're talking about committing a crime, and they have the same kind of, same kind of conversation that Justice Solito was referencing, you know, one guy says, I want to bring a gun, the other says, no, I think that's a really bad idea. But this time, the guy says, okay, you've convinced me it's a bad idea to bring a gun, I won't bring a gun. And so then they go out and they rob whatever they're robbing, and in the middle of it, you know, or they do a drug transaction. And in the middle of that drug transaction, the guy who said, don't bring a gun, looks over, and he realizes that notwithstanding the promise, his Confederate did bring a gun. But there they are. They're in the middle of their drug transaction. So the guy, you know, they're in, they're handing the money to each other, and the guy keeps on doing it, all right? Is that enough, even though, you know, there's four knowledge, there's acts after he realizes that the guy has a gun. Is that sufficient? If the gun is drawn, and the person continues to facilitate the drug crime or the violent crime, that is enough. But what exactly would you want him to do at that point to not be convicted of this offense? Would you want to just say, you know, sort of like, drop everything I'm out of there? Is that the idea? Yeah, take this case. This is an $800 marijuana deal. It's a small-scale drug deal that happens all the time without firearms. This is Mr. L. Wood says, usually this kind of deal is not done with a firearm. Only 5 percent of marijuana offenses have a firearm. Yes, if you're 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. Right. I mean, I guess that's the question. Is there always a reasonable opportunity to withdraw after you see that there's a gun in the offense that you didn't expect to be there? And do you think that there has to be a reasonable opportunity to withdraw? Or would you say, no, everybody has a reasonable opportunity to withdraw all the time. You can just leave. Two points on that. First, I think a lot of that would come in through the duress defense. I mean, if you really feel like, oh, my God, this guy is a gun and he might shoot me if I withdraw. I think you have a pretty solid duress defense. The other point I would say, which is maybe a little tangential to the hypothetical, is there's a traditional doctrine of 18 in a betting law. This is at 2.06 of the Model Penal Code. It's in the Lafayette treaties and the Wharton treaties, that if you counterman your assistance after you've assisted, but before the crime is accomplished or completed, for example, if your assistance was only encouraging, you start discouraging. Or if you take all actions possible to prevent the crime, for example, you assisted, you have a change of part, you call the police to prevent the crime, you're not liable for 18 in a betting

. Bash, what about this case? Suppose that there are two guys and they're talking about committing a crime, and they have the same kind of, same kind of conversation that Justice Solito was referencing, you know, one guy says, I want to bring a gun, the other says, no, I think that's a really bad idea. But this time, the guy says, okay, you've convinced me it's a bad idea to bring a gun, I won't bring a gun. And so then they go out and they rob whatever they're robbing, and in the middle of it, you know, or they do a drug transaction. And in the middle of that drug transaction, the guy who said, don't bring a gun, looks over, and he realizes that notwithstanding the promise, his Confederate did bring a gun. But there they are. They're in the middle of their drug transaction. So the guy, you know, they're in, they're handing the money to each other, and the guy keeps on doing it, all right? Is that enough, even though, you know, there's four knowledge, there's acts after he realizes that the guy has a gun. Is that sufficient? If the gun is drawn, and the person continues to facilitate the drug crime or the violent crime, that is enough. But what exactly would you want him to do at that point to not be convicted of this offense? Would you want to just say, you know, sort of like, drop everything I'm out of there? Is that the idea? Yeah, take this case. This is an $800 marijuana deal. It's a small-scale drug deal that happens all the time without firearms. This is Mr. L. Wood says, usually this kind of deal is not done with a firearm. Only 5 percent of marijuana offenses have a firearm. Yes, if you're 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. Right. I mean, I guess that's the question. Is there always a reasonable opportunity to withdraw after you see that there's a gun in the offense that you didn't expect to be there? And do you think that there has to be a reasonable opportunity to withdraw? Or would you say, no, everybody has a reasonable opportunity to withdraw all the time. You can just leave. Two points on that. First, I think a lot of that would come in through the duress defense. I mean, if you really feel like, oh, my God, this guy is a gun and he might shoot me if I withdraw. I think you have a pretty solid duress defense. The other point I would say, which is maybe a little tangential to the hypothetical, is there's a traditional doctrine of 18 in a betting law. This is at 2.06 of the Model Penal Code. It's in the Lafayette treaties and the Wharton treaties, that if you counterman your assistance after you've assisted, but before the crime is accomplished or completed, for example, if your assistance was only encouraging, you start discouraging. Or if you take all actions possible to prevent the crime, for example, you assisted, you have a change of part, you call the police to prevent the crime, you're not liable for 18 in a betting. And I think that reflects a broader point, which is that the traditional common law contours of 18 in a betting work pretty well with the contemporary purposes and problems that this statute was designed to solve. I mean, this is a statute about the mix of guns and drugs or guns and violence. And I don't see why Mr. L. Wood contends that if you assist one side of that or equation or the other, it's a different result. I think if you assist either side of that equation, knowing that the equation is going to happen, by the principle, that's 18 in a betting. It's 18 in a betting under the historical test. I think it's 18 in a betting under this Court's cases. I don't see why there would be a different result. Mr. Bash, would you explain why in this situation the gun 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 gun abetted a drug deal when the deal failed? Well, of course, the prosecution's principal theory was that he was the gunman who brought it along to facilitate his drug deal. But assuming the theory of the facts that the gun was fired after Gonzalez absconded with the drugs, I mean, I think one way to think about it is like this. Suppose that what had happened is that Gonzalez had gotten 10 paces and Petitioner had been engaged the drugs back. I don't think this Court or courts generally would expect the government to charge two counts of possession with intent to distribute for that brief period in which someone snatches possession away and you get it. That was certainly what the prosecutor thought here. And it's obviously not the issue in this case. The only way that question comes into this case is that Mr. L. Wood is trying to say that the prosecutor understood that you didn't need for knowledge of the gun. And that's not what the prosecutor understood. The prosecutor understood that this offense could continue for at least some period after in which the Confederates gave chase to reclaim the drugs. And that may have been a wrong theory, but no one below ever understood that you could be convicted if you didn't know of the gun until your participation ended. That's why Petitioner never objected on that ground. And that's why, of course, we submit that it should be reviewed to my Court. And you agree that for aiding and abetting, you must, the gun offense, you must have knowledge that the gun is being carried by the cohort. Yes

. And I think that reflects a broader point, which is that the traditional common law contours of 18 in a betting work pretty well with the contemporary purposes and problems that this statute was designed to solve. I mean, this is a statute about the mix of guns and drugs or guns and violence. And I don't see why Mr. L. Wood contends that if you assist one side of that or equation or the other, it's a different result. I think if you assist either side of that equation, knowing that the equation is going to happen, by the principle, that's 18 in a betting. It's 18 in a betting under the historical test. I think it's 18 in a betting under this Court's cases. I don't see why there would be a different result. Mr. Bash, would you explain why in this situation the gun 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 gun abetted a drug deal when the deal failed? Well, of course, the prosecution's principal theory was that he was the gunman who brought it along to facilitate his drug deal. But assuming the theory of the facts that the gun was fired after Gonzalez absconded with the drugs, I mean, I think one way to think about it is like this. Suppose that what had happened is that Gonzalez had gotten 10 paces and Petitioner had been engaged the drugs back. I don't think this Court or courts generally would expect the government to charge two counts of possession with intent to distribute for that brief period in which someone snatches possession away and you get it. That was certainly what the prosecutor thought here. And it's obviously not the issue in this case. The only way that question comes into this case is that Mr. L. Wood is trying to say that the prosecutor understood that you didn't need for knowledge of the gun. And that's not what the prosecutor understood. The prosecutor understood that this offense could continue for at least some period after in which the Confederates gave chase to reclaim the drugs. And that may have been a wrong theory, but no one below ever understood that you could be convicted if you didn't know of the gun until your participation ended. That's why Petitioner never objected on that ground. And that's why, of course, we submit that it should be reviewed to my Court. And you agree that for aiding and abetting, you must, the gun offense, you must have knowledge that the gun is being carried by the cohort. Yes. You agree with it? The Carrier used to this. Could the defendant here have convicted of possession of the ammunition on the theory that under the instructions, would the instructions have allowed that conviction on the theory that the defendant ate it and abetted somebody else's possession of the ammunition? I don't think so, because the judge never instructed that if you ate in abet, that's the equivalent of constructive possession of the bullets. And in fact, I mean, what constructive possession means is you had the ability to exercise control over this, over the ammunition. So it doesn't gel with his theory that, oh, I didn't know about the gun until after the shots were fired. I mean, I don't think anyone thought that you could get conviction because the shells were on the ground or something, and you could pick them up after they were fired. The obvious view was that he was the person who shot the gun. And at minimum, I think those convictions, because there were no aiding and abetting instructions on them, show that he must have known about the gun ahead of time if he could exercise a minimum constructive possession over the ammunition fired from him. What's the point of charging him with possession of the gun and possession of the bullets in the gun? It would seem to me that the proof would be pretty much the same. The proof was the same in this case. They didn't charge him with possession of the gun. They charged him with user care enduring and in relation to the drug trafficking offense. And then there were two counts of possession of the ammunition, which were linked to his felony status and his alien status, unlawful alien status. I guess on the question is, what's the point of charging him with possession of the bullets if you're not charging him with possession of the gun? 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 and possession of the firearm in this case. Kagan, what sticks in my crawl a little bit about your possession is this. Usually, we want punishment to 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 there's, let's say, a crime two people are involved in it. 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, but it's really pretty small compared to the overall crime. And then in addition to that, that person does not have really full-fledged intent. Just has a kind of knowledge that this other person with real, purposeive intent is going to bring a gun. 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. We are seeing that. I think that that that jails with the historical law of 18 and 20 years ofAss pulls out the chasing damage at the right time, creeps out in the batting which, as Judge Friendly said in the case you signed a brief gargoulo, assistance of even slight moment counts. But I just I would have thought that the Actas Reyes can be very small. But almost a compensate for that. You have to have full-fledged intent. You have to have a really kind of purpose of purpose that the crime succeed as opposed just knowledge of what will happen

. You agree with it? The Carrier used to this. Could the defendant here have convicted of possession of the ammunition on the theory that under the instructions, would the instructions have allowed that conviction on the theory that the defendant ate it and abetted somebody else's possession of the ammunition? I don't think so, because the judge never instructed that if you ate in abet, that's the equivalent of constructive possession of the bullets. And in fact, I mean, what constructive possession means is you had the ability to exercise control over this, over the ammunition. So it doesn't gel with his theory that, oh, I didn't know about the gun until after the shots were fired. I mean, I don't think anyone thought that you could get conviction because the shells were on the ground or something, and you could pick them up after they were fired. The obvious view was that he was the person who shot the gun. And at minimum, I think those convictions, because there were no aiding and abetting instructions on them, show that he must have known about the gun ahead of time if he could exercise a minimum constructive possession over the ammunition fired from him. What's the point of charging him with possession of the gun and possession of the bullets in the gun? It would seem to me that the proof would be pretty much the same. The proof was the same in this case. They didn't charge him with possession of the gun. They charged him with user care enduring and in relation to the drug trafficking offense. And then there were two counts of possession of the ammunition, which were linked to his felony status and his alien status, unlawful alien status. I guess on the question is, what's the point of charging him with possession of the bullets if you're not charging him with possession of the gun? 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 and possession of the firearm in this case. Kagan, what sticks in my crawl a little bit about your possession is this. Usually, we want punishment to 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 there's, let's say, a crime two people are involved in it. 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, but it's really pretty small compared to the overall crime. And then in addition to that, that person does not have really full-fledged intent. Just has a kind of knowledge that this other person with real, purposeive intent is going to bring a gun. 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. We are seeing that. I think that that that jails with the historical law of 18 and 20 years ofAss pulls out the chasing damage at the right time, creeps out in the batting which, as Judge Friendly said in the case you signed a brief gargoulo, assistance of even slight moment counts. But I just I would have thought that the Actas Reyes can be very small. But almost a compensate for that. You have to have full-fledged intent. You have to have a really kind of purpose of purpose that the crime succeed as opposed just knowledge of what will happen. D.J. S. Kagan, I don't think that can be right for the examples I gave. Pay accomplices that don't have a stake or the person who lends the gun to be a good guy. And let me contrast that I never got to this example with what a pure knowledge standard would look like. Suppose there was looting, and the defendant breaks into the store to facilitate his own entry in the store to steal goods. But he knows there's 20 people coming behind him, and he has now facilitated their entry into the store, too. That is not eating and abetting under our theory, because he did not even bear the intent to facilitate by which we mean the intent to make some step in another person's crime easier. He knew it would do that, but that was incidental to an intent to facilitate his own crime. So I do think the men's rea is significantly ratcheted up from what a pure knowledge standard would look like. Would you agree that in order to show eating abetting, and I'll just quote from the California case here, that the atear and abetter has to have knowledge of the criminal purpose of the perpetrator. And the intent to facilitate it? Yes. I think what that formulation masks is exactly what intent to facilitate means, and I think that might be part of the disagreement among the parties, and what we say is that it means an intent to make some step in what you know is a crime that he intent, the principal intends to do easier. And I think it's got to be that. That's also the formulation in the historical sources. We cite a page 47 and footnote 10 of our brief. It's either the intent to commit the crime yourself or knowledge that the other person has that intent. And I don't see how it can be anything else. I mean, if you assist someone in a, just to be a good person, not because you care if the crime succeeds. And if you ask them, and with the truth, Saram, do you want the crime to succeed, you say, well, I'm totally indifferent to the crime. Would you agree that the statement, that the first part of the instruction that the district court gave, defendant knew his cohort used the firearm is inaccurate, is incomplete. Not potentially misleading. In isolation, potentially misleading, I think in context how reasonable jurors would understand this and how the parties understood it because no one raised an objection to this below, I think they understood that your knowledge had to arise before your completion of your presentation. You would never, if you got a call from the U.S. Assistant U.S. Attorney in the field, said this is the instruction I'm going to use, you would tell them, no, don't do that. We would, but the reason this court has, or the reason courts generally have objection rules is when questions about particular verb tenses and phrases arise, the defendant, or one of the parties, is supposed to actually object to that in the district court

. D.J. S. Kagan, I don't think that can be right for the examples I gave. Pay accomplices that don't have a stake or the person who lends the gun to be a good guy. And let me contrast that I never got to this example with what a pure knowledge standard would look like. Suppose there was looting, and the defendant breaks into the store to facilitate his own entry in the store to steal goods. But he knows there's 20 people coming behind him, and he has now facilitated their entry into the store, too. That is not eating and abetting under our theory, because he did not even bear the intent to facilitate by which we mean the intent to make some step in another person's crime easier. He knew it would do that, but that was incidental to an intent to facilitate his own crime. So I do think the men's rea is significantly ratcheted up from what a pure knowledge standard would look like. Would you agree that in order to show eating abetting, and I'll just quote from the California case here, that the atear and abetter has to have knowledge of the criminal purpose of the perpetrator. And the intent to facilitate it? Yes. I think what that formulation masks is exactly what intent to facilitate means, and I think that might be part of the disagreement among the parties, and what we say is that it means an intent to make some step in what you know is a crime that he intent, the principal intends to do easier. And I think it's got to be that. That's also the formulation in the historical sources. We cite a page 47 and footnote 10 of our brief. It's either the intent to commit the crime yourself or knowledge that the other person has that intent. And I don't see how it can be anything else. I mean, if you assist someone in a, just to be a good person, not because you care if the crime succeeds. And if you ask them, and with the truth, Saram, do you want the crime to succeed, you say, well, I'm totally indifferent to the crime. Would you agree that the statement, that the first part of the instruction that the district court gave, defendant knew his cohort used the firearm is inaccurate, is incomplete. Not potentially misleading. In isolation, potentially misleading, I think in context how reasonable jurors would understand this and how the parties understood it because no one raised an objection to this below, I think they understood that your knowledge had to arise before your completion of your presentation. You would never, if you got a call from the U.S. Assistant U.S. Attorney in the field, said this is the instruction I'm going to use, you would tell them, no, don't do that. We would, but the reason this court has, or the reason courts generally have objection rules is when questions about particular verb tenses and phrases arise, the defendant, or one of the parties, is supposed to actually object to that in the district court. That didn't happen here. No, I know you have arguments about failure to object in harmless error, but in a substance of it, you think the instruction, you would never counsel someone to give that instruction. Well, I think as we said in the brief, it would have been clear to say, would use or something that makes absolutely clear that you required for knowledge. 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. It could clarify one facilitation with respect to either conduct element is enough, as far as act is raised, to 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. What, why do you say you say, in context it was okay? What, what context? The, Justice Scalia, the instruction, or part of the same instruction, the paragraph immediately before, just mirror it. That's it. Just that. In order to aid or about another to commit a crime, it is necessary that, definitive willfully and knowingly associated himself in some way with the crime. And then- Well, to help make the crime succeed, and I think a reasonable person reading that would not think I helped make the 924C crime succeed if I didn't even know about the gun, until I was after doing what I was done doing whatever I was going to do. And I also point the Court to page 194, which makes clear that knowingly in that second part of the instruction is defined as voluntarily and intentionally. So you certainly had to intentionally participate in a drug traffic in crime. And that, part of the context, as this Court has said, is all- Sagan, you're knowing that a gun would be used. You had to intentionally participate knowing that a gun would be used. But basically a slight tweak, which is knowing that the principal bore the intent to use a gun. Obviously, you can't know the future. It's that you know that the principal bore that intent, which is a little bit different by I think we're saying the same thing. I don't see how would make the crime succeed helps you because you would say the crime that he has to help make succeed is the underlying drug offense, not the use of the firearm. No, Mr. Chief Justice, we wouldn't say that this umbrella instruction applied to count one and two. The crime you're help making succeed is 924C. What I was saying earlier was that what does it mean to help make a crime succeed? It means intent to make at least one step in that crime easier knowing the other person bore the intent to do the crime. And I think that's how we normally think about it. If there's an armed robbery and you say, well, I'll drive the getaway car. I think you would naturally say in ordinary English you intended to help make that crime succeed even if you didn't bear a specific intent with respect to the gun. I certainly think on, you know, if this had been objected to below, it might be a different matter where Mr. L would, but he did not object to this below. He didn't raise this wording issue even in the Court of Appeals

. That didn't happen here. No, I know you have arguments about failure to object in harmless error, but in a substance of it, you think the instruction, you would never counsel someone to give that instruction. Well, I think as we said in the brief, it would have been clear to say, would use or something that makes absolutely clear that you required for knowledge. 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. It could clarify one facilitation with respect to either conduct element is enough, as far as act is raised, to 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. What, why do you say you say, in context it was okay? What, what context? The, Justice Scalia, the instruction, or part of the same instruction, the paragraph immediately before, just mirror it. That's it. Just that. In order to aid or about another to commit a crime, it is necessary that, definitive willfully and knowingly associated himself in some way with the crime. And then- Well, to help make the crime succeed, and I think a reasonable person reading that would not think I helped make the 924C crime succeed if I didn't even know about the gun, until I was after doing what I was done doing whatever I was going to do. And I also point the Court to page 194, which makes clear that knowingly in that second part of the instruction is defined as voluntarily and intentionally. So you certainly had to intentionally participate in a drug traffic in crime. And that, part of the context, as this Court has said, is all- Sagan, you're knowing that a gun would be used. You had to intentionally participate knowing that a gun would be used. But basically a slight tweak, which is knowing that the principal bore the intent to use a gun. Obviously, you can't know the future. It's that you know that the principal bore that intent, which is a little bit different by I think we're saying the same thing. I don't see how would make the crime succeed helps you because you would say the crime that he has to help make succeed is the underlying drug offense, not the use of the firearm. No, Mr. Chief Justice, we wouldn't say that this umbrella instruction applied to count one and two. The crime you're help making succeed is 924C. What I was saying earlier was that what does it mean to help make a crime succeed? It means intent to make at least one step in that crime easier knowing the other person bore the intent to do the crime. And I think that's how we normally think about it. If there's an armed robbery and you say, well, I'll drive the getaway car. I think you would naturally say in ordinary English you intended to help make that crime succeed even if you didn't bear a specific intent with respect to the gun. I certainly think on, you know, if this had been objected to below, it might be a different matter where Mr. L would, but he did not object to this below. He didn't raise this wording issue even in the Court of Appeals. He raised a sufficiency challenge with respect to foreknowledge, but he even as Court of Appeals briefed, he didn't say that the instructions in this case were wrong because it said used versus wood use. So I don't think the issue is properly here, but I think it would be a sensible resolution if the Court were to remand these case specific issues after clarifying the basic standard of 80 and embedding to the Court of Appeals to work through the forfeiture and waiver and harmless air and so forth. If there are no further questions. Thank you, Council. Mr. L, would you have four minutes remaining? Thank you, Mr. Chief Justice. One point that I want to emphasize is a point made by Justice Kagan, which is that traditionally because the actous reas is relatively small for adding embedding 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 principle, that they ordinarily require purposeful intent. And as Professor Wayne LaFave said, who obviously doesn't have a stake in the case, liability has seldom been imposed on the basis of knowing assistance. The background rule is that it has to be purposeful intent. The cases should I look up for that. I think that is to say, I thought generally in the criminal law a person who commits an illegal act is liable for the known consequences of that act. That is the general rule. I can't think, I mean, people use all kinds of terminology, you know, different kinds of terminology, but I thought that is the basic principle. The standard for accomplice liability requires purposeful intent. It is general. Where do I say it when you say purposeful intent? He didn't want it, but he knew it would happen. And moreover, he helped to produce the occasion on which it would happen. It was his purpose for doing it. And the cases you can look at are, Nyan Nissen. We just tell me we're in the grief, they are. Are you already aware of these? I mean, Nyan Nissen, Nyan Nissen, which is a case of this court from 1949, where the court adopted the standard from the Learned Hand Case Pione that adopted the purposeful intent standard. And Pione is obviously very important in case as well, but Hicks. And Hicks in 1893, this Court reversed a conviction because the jury instruction did not require proof of intent to encourage the Court. We used the word intent. Some people used it in order to encompass the situation of the known but undesired purpose. But the Court went on to say that action for any other purpose, even if with the, even if it had the effect. That's a language. I'm sure you'll find language

. He raised a sufficiency challenge with respect to foreknowledge, but he even as Court of Appeals briefed, he didn't say that the instructions in this case were wrong because it said used versus wood use. So I don't think the issue is properly here, but I think it would be a sensible resolution if the Court were to remand these case specific issues after clarifying the basic standard of 80 and embedding to the Court of Appeals to work through the forfeiture and waiver and harmless air and so forth. If there are no further questions. Thank you, Council. Mr. L, would you have four minutes remaining? Thank you, Mr. Chief Justice. One point that I want to emphasize is a point made by Justice Kagan, which is that traditionally because the actous reas is relatively small for adding embedding 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 principle, that they ordinarily require purposeful intent. And as Professor Wayne LaFave said, who obviously doesn't have a stake in the case, liability has seldom been imposed on the basis of knowing assistance. The background rule is that it has to be purposeful intent. The cases should I look up for that. I think that is to say, I thought generally in the criminal law a person who commits an illegal act is liable for the known consequences of that act. That is the general rule. I can't think, I mean, people use all kinds of terminology, you know, different kinds of terminology, but I thought that is the basic principle. The standard for accomplice liability requires purposeful intent. It is general. Where do I say it when you say purposeful intent? He didn't want it, but he knew it would happen. And moreover, he helped to produce the occasion on which it would happen. It was his purpose for doing it. And the cases you can look at are, Nyan Nissen. We just tell me we're in the grief, they are. Are you already aware of these? I mean, Nyan Nissen, Nyan Nissen, which is a case of this court from 1949, where the court adopted the standard from the Learned Hand Case Pione that adopted the purposeful intent standard. And Pione is obviously very important in case as well, but Hicks. And Hicks in 1893, this Court reversed a conviction because the jury instruction did not require proof of intent to encourage the Court. We used the word intent. Some people used it in order to encompass the situation of the known but undesired purpose. But the Court went on to say that action for any other purpose, even if with the, even if it had the effect. That's a language. I'm sure you'll find language. 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. I would commit, you know, blowing up the carriage. And you kill the maid who you didn't want to kill. You're liable. I would point you to which one is the fate. I'm sorry, I don't have a case of the top of my head. I know that they say the principal will go, but Lafayette, chapter 13.2 collects cases. And he makes the point there that liability has seldom been imposed on the basis of knowing assistance for eight years in a better, is you have to have purposefully. At that say, Lafayette. Lafayette. Lafayette. Wayne Lafayette. Councillor, do you have anything for us on Rule 30? You know, on Rule 30, I won't pretend that it was a model of clarity in preserving the air about after arriving, after arising intent. But I will say that there is no contest. I mean, that is to us, just as a sign that, of how messed up the jury instructions are. But we did preserve, we say, our objection both with respect to the absence of facilitating the right offense. And the intent to commit the crime as opposed to knowledge that the gun would be used. And so how did you preserve that objection? With respect to intent and the, by objecting to their instruction on the basis that it didn't include intentional facilitation of the 924 CFS. And if there are no further questions, I will rely on our submission. Thank you, Council. Case is submitted.

We look at argument first this morning in case 12, 895, Roseman versus United States. Mr. Elwood? Mr. Chief Justice, and may it please the Court. It has long been a bedrock principle of American law that aiding at a bedding liability requires proof that an accomplice act with purposeful intent to facilitate or encourage the crime of conviction and that mere knowing assistance is insufficient. Do you agree that a jury could find the defendant guilty of the firearms charge under proper instruction? In other words, was there sufficient evidence so that if proper instruction were given, there could have been a conviction? Even if the, I think in this particular case, even if the jury had been given a proper instruction, it would have been a difficult charge to make out because the government never really argued facilitation after getting knowledge of the firearm. There was never evidence of foreknowledge that government never asserted evidence. Well, I guess we can get in later to whether or not if you know a firearm is being carried, and if you then facilitate the commission of the underlying felony by driving the car, participating in the transaction, whether that's sufficient. But let me ask you this. The instruction that was given, which is a J.A.196, would it be okay if paragraph 1, the defendant knew his cohort used a firearm? I think there is a real problem with that because it's retrospective. Would the instruction of been sufficient if the defendant knew his cohort would use or was carrying? Would that change it? Well, I think at least that would have required foreknowledge, but I think it would still have been problematic because it would only have required knowing facilitation. And courts traditionally have required intentional facilitation. That is at the end to further the crime. You do not agree, then, that if you know that there is a bank robbery of foot and you are cooperating in that, you are the wheelman. And you also know that the people who are conducting the bank robbery are carrying firearms. You say that there is no criminal liability for the firearms unless you intended them to use the firearms. Is that your? It's our position that you could infer from the fact that you are assisting paying transaction involving the knowledge is not itself. The question is, what does the jury have to find? I know they could. I know what they could infer. The question for Justice Scalia is, you drive the car, you know firearms are there and might be used, is that sufficient? And that is his question. I think that that would be, that would support a verdict. That would support a verdict. The only question is that you would say it would support a verdict, you are saying it would support a finding of intent. That is correct. But the question is whether you don't even have it? Let's assume there is a moron of evidence that he didn't really want them to use firearms. That there is no way you can say he intended them to you. But he knew that they had firearms. And I think that you could conclude from that that his purpose in assuming that you are No, no, you can. It's my hypothetical. And you cannot include from that there is so much other evidence. 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. You know, I hate to be accused of resisting the hypothetical because in that case, I don't think it matters whether you have this subjective desire, like you think, boy, I sure wish those firearms weren't involved. But because at that point, your goal is to facilitate and make sure that this, uh, bang up the gun, it succeeds. The whole thing with the gun. So you don't have to, you don't have to. But that is your purpose. We would say that that is the purpose in facilitating. And the question is not just that. If you intend to crime, if you intend to crime and you know that the crime is being conducted with firearms, that's enough. I don't think that that, I think that you have to have the foreknowledge. And I think that there is certainly no way. Yes, beforehand, beforehand. Beforehand. You know beforehand that the crime is going to be perpetrated with firearms. That's all you do. You know beforehand and you facilitate the crime. I think that you, the question is whether it, you can't even conceive of the circumstance where knowing, that is participation, knowing that a firearm would be used or. Well, give me an example of that. For example, if you agree to drive your neighbor to pick up drugs at someplace in Philadelphia or, let's make it Pittsburgh, and then you drive him to West Virginia to spend the weekend dealing on the way there, he tells you the guy who distributed these to me, you know, he always carries a darenjor in his boot. And at that point, you don't facilitate his use or carriage of the gun with respect to the drug distribution offense. It has no role in the crime. And so I think you can conceive of enough. I don't understand the example. The, the, the alleged aider in a better learns about this after it's happened. Yes, that's the idea. But he's still facilitating the drug distribution offense at a time he knows that a gun is, you know, being carried in relation to it. Well, what do you mean? Maybe this is the same as Justice Scalia's hypothetical, but let me try it. Suppose that two guys have a meeting and it's in a place that's where there's an electronic eavesdropping device. In fact, there's a camera. So it's all recorded. So we know exactly what was said. And the principle says, here's the deal. I'm going to go rob a convenience store and I'm going to carry a gun. And the, the aider in the better says, well, all right, I'm in on the, you know, I'm, I'm in on robbing the convenience store, but I don't have anything to do with the gun. I think you should carry a baseball bat. The principle says, no, that's the deal. I'm robbing the store. I'm carrying a gun. Take it or leave it. Are you going to drive me there? And the, the other guy says, I hate guns. I don't want to have anything to do with guns. I hate this idea about the guns. They go back and forth. And the principle says, finally, look, this is it. This is the deal. Robbing the store. I'm using a gun. You're going to help me or not. And the guy says, well, all right, I'm going to drive you. But I want to note it for the record that I'm opposed. I'm opposed to the use of a gun. And at that point, it's his purpose to facilitate a transaction and to, you know, help it succeed. And it's at a time when he knows that a gun will be used. And I think you can conclude that it's his purpose. So I don't really see it. I can't, I can't think of a situation where a person facilitates the crime, knows what the crime is going to be, knows that a gun is going to be used, but doesn't intend where the gun to be used. In those two situations, knowledge and intent seem to me to be, to be the same thing. The question is whether there are, because there are just no instances that are more like my hypothetical than like your hypothetical. So you don't even have to bother troubling the jury about whether they had the intent. Well, I didn't understand your hypothetical. So you could give it to me. Well, the point of it is that at a time when you are, when you are still participating in the underlying offense, the drug trafficking offense, you know that a gun is being carried in relation to it. But you don't have any intent to facilitate it. You don't care one way or the other if it gets used. You know an intent to facilitate it, and you don't facilitate it. And the question is whether it's your, Well, but that's a conclusion. The jury seems to me could say you do facilitate it if in these hypotheticals you drive the car. But with knowledge that the gun might be used. No, but the gun is not going to be used in your act of facilitation. It may be used over in, well, the mission is that you could find out why. And the question would never have been used if you didn't drive the car. But I think the jury could equally well conclude that you did not intend to facilitate the use of the gun. And you did not facilitate the use of the gun. And the question is whether you even need to trouble the jury with it. Because the government's instruction conclusively presumes both knowledge or concludes conclusively presumes intent from knowledge alone. And it conclusively presumes facilitation of the gun. In my, in my hypothetical, could a rational jury say he knew about it, but he didn't intend it? I think that in your case with the foreign knowledge and where he, you know, facilitates he carries the gun and he carries the person to the offense. I think that that would be a tough slog in a case. But there are as a case where there isn't foreign knowledge. And the government never argued that he knew before the gun, before the gun was fired. Well, in my case, I'll finish. I want to ask another question about this. But in my case, if the judge had given the instruction, it's enough that he knew about it. He facilitated the crime and he knew there was a gun. Would that be error? I think it would be error because you're instructing them on the wrong elements. It might be harmless error, but there is the point, we both sides agree here that you have to facilitate the crime of conviction and you have to intend that the gun be used. I don't think it's ever harmless error to not instruct the jury to do it. You instruct the jury not to find one of the elements of the crime. Well, if indeed intent is necessary, it seems to me he has to instruct the jury to find intent. It's not up to the court to say, well, there surely was intent anyway, so it's harmless error. Well, he has to find it. I think, you know, I'm fine with it being a harmful error to. But my point was merely to note that I think that it is something that you have to instruct the jury on as a prop. Excuse me, but what are we- Even if it's not making a difference? I think what we're driving at here, and I think this is the moment you're resisting. But to me, and as you can tell from my colleague's questions, if you know that someone's carrying a gun and whether you want them to use it or not is irrelevant, if they take it out and use it and you have gone along with them in the crime, you're guilty. Okay? That's what we're driving at. Assume that I believe that. Assume that I believe that if you have knowledge of the gun and that I am participating in the crime with your knowledge of that gun, whether the knowledge is secured before the crime starts or during the crime, if I continue to participate in the crime knowing that you have a gun, then that's knowledge of the gun and intent to facilitate. I thought the example that you were relying on here or the issue that got confused in the briefs was whether or not from the sequence of facts in this case, you can actually discern that intent to facilitate the crime because the alleged shooter, which your client said, was someone else, got jumped into the car and the car took off before anybody could abandon the crime. So what I actually thought this case was about, at what juncture do you instruct the jury to say that you have to be a participant with knowledge of the crime, but you're saying something different right now. You're almost suggesting that there has to be a pre-knowledge that the gun will be used. No, I don't think that there has to be pre-knowledge. My point is this, that there are circumstances I think where you can know of a gun and be participating in the underlying predicate offense and not facilitate the use of the gun. I'm far too much in there, give me an example. For example, if your job, the lowest level guy in a drug organization, you stand on a street corner every night and you hand out drugs, anybody who comes up, you don't carry a gun, nobody is ever carried a gun at that street corner. One that you're doing it and you see that the guy who you work for, his enforcer is coming by and you know he always carries a gun. He walks behind you and you know he's present and around you for about 90 seconds, but during that time you just do exactly what you always did. I think a jury could conclude and I'm not saying that they couldn't conclude otherwise, but they could conclude that he didn't facilitate the use of a carajer again. What would the instruction look like? It would just to, to, to, to, to, what would it look like to capture the difference you're trying to convey? Who would just say that the, that the jury has to find that the defendant facilitated the use or carriage of a gun during an in relation to a crime of violence or drug trafficking offense. Well, they do come up against the government's argument that you don't have to facilitate every element. Right. But that's the thing. Those are what we think would be the proper instruction that they just have to be instructed on the facilitation and on the intent. I think you say that you don't need prior knowledge. I think you need prior knowledge. I think you have to have prior knowledge before you facilitate it. I think that yeah. Right. So what do you do? You don't need prior knowledge before the whole transaction happens. If you continue to, if there's an act of facilitation, after you know. Right. Exactly. That's all I mean by the absence of prior knowledge. But I mean everyone's your degrees. Mr. L. L. were in the knowledge of the facilitation. You're dealing with all kinds of hypotheticals. But in this case, we had a jury determination that Roseman was the person he was convicted of carrying ammunition. Right. There were two counts of carrying possession of the ammunition. And couldn't one infer from that that if he possessed the ammunition, he was the gun carried. Two things, Justice Ginsburg. First, the government never raises below and it wasn't pressed or passed on below. And so I think under Glover versus United States, this court wouldn't ordinarily consider that in the first instance. We'd leave it for a remand. But secondly, I think that it's not clear enough. I mean, you can't say beyond a reasonable doubt that the error didn't infect that too. Because the jury was instructed four times that you can possess something through constructive possession, through a Confederate. And I think when the jury concludes that he is guilty of a possession offense, which is 924C, as a possession offense, as an aide or a better. And they marked on the jury, on the judges' instruction that he used the gun, he carried the gun, that the jury could have believed that they were, that he constructively possessed the gun. And thereby constructively possessed the ammunition. What was the evidence that the jury had on whether he possessed the ammunition? I think the only evidence of possession was that it was inside the gun that was fired. And I think the jury rejected the idea that he was the shooter because the two eyewitnesses said that the shooter was someone else. The shooter was the guy in the backseat who was Ronald Joseph. I just didn't know. You said the only evidence was that it was inside the gun. And the only evidence of his, and what was the evidence that he possessed cartridges? No, the only evidence was that the ammunition was inside the gun. And was there any evidence that he had the gun? The evidence that he had the gun was the guy who, the evidence of the other guy, and the evidence of the cartridges are exactly the same. The only evidence was that the cartridges were inside the gun. And the two eyewitnesses were at the scene said that the person got out of the driver's side and the evidence suggests that Mr. Roseman was on the passenger side and that he got out of the backseat and he was in the front seat. So the evidence, I think, is that he was merely in the car and that he was the shooter. And the jury, remember, asked, do we have to answer question three, which was the, all the different ways you can use the gun, if we find him guilty on an aiding in a betting theory, which certainly suggested they did not believe he was the shooter. Did he facilitate the crime after the shots were fired? The government did not ever argue for the solicitation after the shots were fired. I suspect because they only argued that he, that what happened afterwards was evidence he was the shooter. I suspect because they appreciated that the offense was over with. He was only charged with possession of marijuana with intended distribute. When Mr. Gonzalez took off with the marijuana and they lost control, if they went around afterwards, looking for him, which there's not even very much evidence of that. But do we have cases that say that assisting flight immediately after the crime is not aiding in a betting the crime? The crime is over. So everybody said the crime is over. Let's walk home. I am not aware and the government hasn't cited any. I mean, there's, for different crimes, you know, there's, there's different law about whether flight is part of the offense. But in any event, the question is whether that would be aiding in a betting that crime the possession offense or some distinct crime or whether that would be being an accessory after the fact. Is this just a fact of a charge? Is it just flight? I thought there was evidence that they were chasing the people who robbed them. There was no evidence that that intent to chase him was ever communicated to Mr. Rose Mon. Well, he jumps in the car and you know, they're going after them. 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 was, it wasn't charged. It might be, 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've dispute these facts, let's go get them. I think I jumps in the car. It seems to me that that's aiding in a betting the underlying illegal activity. Which knowledge, of course, the firms were fused. I agree. But first, that's not on a theory that the government ever espoused. They never argued that facilitation. And secondly, I don't know that that would be facilitation of possession of marijuana with intended distribute it. That ended under the courts' instructions when they lost control of the marijuana when Mr. Gonzalez disappeared. Gonzalez, I understand your argument about intent, but you also are arguing that the actous, reas instruction was insufficient. You're structuring about what your client did. Yes. It gets necessary for an eater and a better to facilitate every element of a criminal offense. We're not saying that. We are saying that when you have to instruct them, did he facilitate the actual crime of conviction? Because what the government is doing here, what their instruction does, is it conclusively presumes that he facilitated the distinct offense, which this court has said the entirely new crime of 924C from the fact that they did the underlying offense. Their favorite example in the brief is a mail fraud example. But under the government's theory, because you engage in an act of mail fraud, you could be convicted of racketeering without any additional actous reas, because that is a predicate crime to Rico. And that's the thing is, we should just say you can't presume the full offense, facilitation of the full offense, from the fact that you just facilitated. So if there were not, if the drug offense itself were not illegal, there wasn't a drug offense and then the additional firearm element, it wouldn't be necessary for the defendant to facilitate every element of that offense. It's dependent on the fact that there's this other criminal crime. We're just saying that they have to be, that jury just has to be instructed to ask, what did he facilitate the crime of conviction? And they're asking a different question, essentially. And they wouldn't present the same risk that you would convict someone twice and they'd serve two consecutive sentences under the hypothetical you suggest. But we still say they should be asked whether they facilitated the right crime. Well, but the crime of conviction was a drug offense with the use of a firearm, right? It was, I can't work with you. And so I thought, I thought the law is pretty clear that if you facilitate an offense, you do not have to facilitate each element of that offense. So long as you have knowledge that that element existed. And our submission is just that the jury still has to be asked, did he facilitate the crime? This is both sides degree that you have to add that one of the elements is whether they facilitated the crime of conviction. But more precisely, they could be asked, did he facilitate the drug deal knowing that a firearm was going to be used in the drug deal? Would that satisfy you? No, we think they're asking both the wrong questions then. But is our submission? I don't understand what your position is. He has to use the gun himself. No, his, our only position is that they have to ask the jury that he facilitated the 924C offense. I think it would help if you told us what the definition of the crime is. We'll talk about the jury instructions later. Justice Scalia is asking whether or not if you facilitate the drug crime knowing that a weapon is being carried, if that is sufficient for aiding an abedie, as a legal matter. Forget the jury instructions. And it's our submission that you have to both facilitate the 924C offense and that you have to have the intent that the gun be used or carried during an embellishment to the crime. Does that have to do with the additional 120 months? The underlying crime is 48 months, and then the gun makes it 120 months more. That's right. But it's, I think 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 also have facilitated the other. And we just don't think that that is something that you can say with 100 percent certainty because it's a criminal law. Well, it isn't criminal law replete with crimes which have lesser included offenses as part of them. So wouldn't your rule be a very difficult one to apply because it would suggest that the person had to facilitate some part of the crime that was not a part of a lesser included offense? There are some courts that apply this, our rationale to lesser included as well. But lesser included crimes are the same crime for block breaker purposes. You can't be sentenced to both be greater and the lesser. And I think most courts require that you show the intent that the gun be used. They don't as often require that you facilitate the discrete use of or encourage the crime. Well, let me go back to my earlier hypothetical about taped conversations. Suppose that the alleged aider and a better there says, I intend for you to use the gun. I have that intent. However, I'm not going to do one thing to help you get the gun or use the gun. I don't want to. I'm not going to. There's an act of serious problem there because he doesn't facilitate the use of the gun. Well, he may say that he's not going to facilitate it, but depending on what his actions are, he may very well may facilitate it. If he drives the gun and the person to the crime, you know, that is an act of facilitation. And so, you know, it doesn't depend on what the person says. It depends on what the person has. I just want to make clear and we'll get back to the bank robbery hypothetical driving the car knowing that a gun is being carried and might be used is or is not sufficient facilitation to make you an aider and a better in the drug in the gun aspect of the crime. I think that that would be enough because you're carrying the gun as well as the person. If I can reserve it, you are not carrying it. Your cohort is carrying it. Oh, yes, you're carrying your, you're by your eye. The gun is on the car. Our whole heart has the gun. The cohort is going to rob the bank. Are you, or are you not, eating and abetting because you're facilitating it by driving the car? Yes or no? We would say that yes, that is certainly enough to go to the jury and that I think that that would be enough to show that because you're carrying both the gun on the, your cohort and you're carrying the cohort, that that would be enough to facilitate that. I would like to. But only you say it's enough to go to the jury and what you would ask the jury to find is intent, right? That's correct. You would still find most facts that were stated by Justice Kennedy. In addition, the jury would have to find intent. That is correct. There are, I'd like to reserve the remainder of my time for a bottle. Thank you, counsel. Mr. Bash? Mr. Chief Justice and may it please the Court. I'd like to start by defining exactly what the government intends the men's rail committee requirement is for Aiding and Avedding and then give the Court an example to examples to show how it differs both from what Mr. Elwood is saying and how it differs from a knowledge standard. Aiding and Avedding requires an intent to facilitate or encourage the Commission of Defense. And I think that breaks down into two constituent parts. One, an intent to make some action easier or to encourage some action by the principle, two, the knowledge that the principle intends to commit a crime of which that action is a constituent part. What Mr. Elwood is saying is something quite different. It's that you have to intend that the crime succeed. If that's true, all paid accomplices are out. If they don't intend that the crime succeed. If the bank robbers say, hey, can you look the other way security guard while we go into the bank will give you $1,000 if you do it? That's not Aiding and Avedding under his theory. If the security guard says, well, I only wanted $1,000. I didn't care whether you ultimately succeeded in the bank. We give an example in our brief. If the person actually gives the gun, so it meets the actous, reas requirement that Mr. Elwood has proposed, he actually gives the gun to somebody, not because he cares if that person commits the crime, which he knows he intends to commit, but as a favor or as a threat. Kagan, that's a very fanciful hypothetical because the one thing the guard is going to know that if the robber gets caught, he's in great jeopardy of being caught himself and convicted. Of course, he wants the crime to succeed because he doesn't want the people to be there and being pressured by investigators or whatever to say, okay, what, you know, who was in on this with you? So, if you're being paid for a crime to assist in the commission of the crime, you want it to succeed? Well, if your payment's not coming from the loot, I don't think that's really true, but let's take that as true as given. I mean, go back to my example about the guy that's just doing a favor from somebody. Sure, you can use my gun to commit a robbery. I don't have any stake in it if you decide tomorrow that you don't want to commit the robbery. He has a stake in it. If the guy is caught, the police are going to say, where did you get the gun? He may turn them in or not, but it's certainly a danger, a danger that wouldn't be there if the crime succeeded. I don't think that's the sort of intent requirement that Mr. Elwood is talking about. I mean, I think he's talking about an intent that's abstracted from the idea that if you get caught, everybody might go to jail. I mean, that sort of seems to beg the question of whether you're actually going to be liable for the gun. Why don't we just take it that we have a crime, the underlying crime. It's a 48-month crime. And then if you have a gun in connection with that crime, it becomes 120 months consecutive. 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 get ten years of your life for government proving no more than the 48-month charge is a bit much. It's not proving no more than the 48-month charge. And I'll just as a footnote, ten years only for gun as fired. It's five years if it's carried or used, and which obviously creates a much greater danger to people's lives and property if it's fired. But it's not only proving that you facilitated the drug offense. It's facilitating the drug offense with the four knowledge that a gun was going to be involved in it. And now this, but this instruction at J196, say it says that the defendant knew his cohort used the firearm. It really should say that knew his cohort would carry a firearm. Justice Kennedy, two points. Because when I read this, I thought, well, given these confusing facts, a jury might think that there's liability if he knew that a firearm was youth, which is a very odd interpretation, but that's the instruction lends itself to that interpretation. Justice Kennedy, that is an odd interpretation, and it's wrong, and we do not contend that liability could be imposed if you learned of the gun only after your participation ended. A couple points on that. But do you agree that taken by itself, that one could be read that way? Well, I don't think read in context of the full instruction. If you look at the description, it's taken by itself. So not the instruction taken by itself, but one phrase in the instruction taken by itself. I think it's possible, but I think if you read it in the context of the full charge and what reasonable jurors would think, you have the formulation right above that on page 196 that mirrors exactly the Pione standard. And I don't think reasonable jurors reading that in conjunction with the more specific instruction on count two could think that he could be liable at this participation ended only after the firearm was used. And Justice Kennedy, nobody below thought that, because Petitioner never objected on the ground that the particular wording of this instruction allowed conviction if you gained knowledge only after your participation. So he proposed to propose a different instruction that departed from the instruction that was given on that point. Mr. Chief Justice, first of all, under Rule 30, it's not enough to propose an alternative instruction that does not contain the defect. You have to lay out the specific grounds for your objection. He did not do that here, so it should be plain error review. That's doubly true here where his instruction had its own error. His instruction would have required intentional facilitation of the gun, which is the question on which this Court granted Sir Shurari. His instruction had two wrongs don't make it right. Well, two wrongs don't make it right, but he certainly did not comply with the Rule 30 standard for raising the objection with respect to four knowledge that he's proposing now. So at minimum, that should be reviewed for plain error. In addition, even if the Court believes that we waive the harmless error argument by not raising it below with respect to his primary argument, the Court should certainly hear our plain error, our harmless error argument with respect to the ammunition counts with respect to instructional error that he did not raise below. Mr. Chief Justice, look at his instruction and think about the bank robbery hypothetical with the driver of the car. His number two is that they intentionally took some action to facilitate and encourage the use of the firearm. I think that would be an okay instruction in the bank robbery hypothetical. It would be an- It would be an- He drove the car. The principal object was to rob the bank not to use the firearm, but he facilitated the use of the firearm. I can see that a judge could give that instruction. I think the only way petitioner fits that instruction into his view of the law is because the driver started out driving the people to the bank so he says, oh, well, you're satisfying my act as Reyes' requirement because you actually transported the guns to the bank, but tweak the hypothetical a little bit. Suppose the getaway driver is paid only to show up at the end and to, you know, ferry the bank robbers away. He knows all along that it's going to be a firearm offense. I'm pretty sure Mr. L. Wood would say because you took no act facilitating the gun in that case. You only sort of showed up at the end, even though you knew a gun would be used, that that's not the facilitation. So I take your point, Justice Kennedy, that in a wide swath of cases it may not matter, but I think in some cases it is going to matter and take his intent requirement. I mean, the person that lends the gun just to be a good guy, not because he cares about the offense. I'm pretty sure he's out. And if the jury is convinced, hey, I knew he was going to commit a robbery or an assault, but I just did not care. If the jury is convinced by that, he is acquitted, and that can't possibly be right. He would not be guilty of any 924C offense at all. I mean, not only the 10 years. Could you talk practically about what the difficulties are for the government in these scenarios? It's nice to put hypotheticals in where you know where you say someone new XY and Z. The reality is that in most cases you don't. Occasionally you get a co-conspirator that will tell you, but in most cases you have just the act. Defendant is present during a crime. A gun is pulled and he leaves with his cohorts. You don't know whether he had a dance 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? If he continued participating after he learned about that, that's your point, right? That's your point. Yes. If he learned about the gun and said, hey, I'm asking. So isn't this really an argument about how you define facilitation? You're not arguing that some form of participation in the crime with knowledge that the gun is being used is required. You're really arguing about how far the proof has to go. Well, your adversary keeps saying near knowledge that the gun is being used is not enough. I think it's more qualitative than that and the question suggests it's purely quantitative. It's qualitative in the sense that the facilitation can relate to either element. So it can relate to the gun in particular or this could be the guy that set up the drug deal knowing that a gun would be involved or set up the robbery, knowing that a gun would be involved. I think you see in the court appeals cases here the practical difficulties that come in, because although most courts of appeals I think eight have technically adopted the position that you have to facilitate the gun in a direct way, if you look at the actual holdings of the cases, it doesn't differ in practical application from our approach. There's one case, I think it's price out of the third circuit where the guy may have learned of the gun, and I may have the case name wrong, but the guy learned of the gun only as the robbery was taking place, but he continued to participate in the robbery while his Confederate brandish the gun, he collected the money and so forth. And as far as your question about the practical problems, I mean, I think explaining to a jury, what does it mean to facilitate the gun in a specific way during a crime like that is incredibly difficult. I mean, we say in the brief, what if you're exchanging the money while the other person is brandishing the firearm? Maybe that person would say it. Sotomayor, what's so hard about saying did you have knowledge that the gun would be used either, and you facilitate, and you put you continue to facilitate the crime? We agree that that is the law. Well, Mr. Bash, what about this case? Suppose that there are two guys and they're talking about committing a crime, and they have the same kind of, same kind of conversation that Justice Solito was referencing, you know, one guy says, I want to bring a gun, the other says, no, I think that's a really bad idea. But this time, the guy says, okay, you've convinced me it's a bad idea to bring a gun, I won't bring a gun. And so then they go out and they rob whatever they're robbing, and in the middle of it, you know, or they do a drug transaction. And in the middle of that drug transaction, the guy who said, don't bring a gun, looks over, and he realizes that notwithstanding the promise, his Confederate did bring a gun. But there they are. They're in the middle of their drug transaction. So the guy, you know, they're in, they're handing the money to each other, and the guy keeps on doing it, all right? Is that enough, even though, you know, there's four knowledge, there's acts after he realizes that the guy has a gun. Is that sufficient? If the gun is drawn, and the person continues to facilitate the drug crime or the violent crime, that is enough. But what exactly would you want him to do at that point to not be convicted of this offense? Would you want to just say, you know, sort of like, drop everything I'm out of there? Is that the idea? Yeah, take this case. This is an $800 marijuana deal. It's a small-scale drug deal that happens all the time without firearms. This is Mr. L. Wood says, usually this kind of deal is not done with a firearm. Only 5 percent of marijuana offenses have a firearm. Yes, if you're 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. Right. I mean, I guess that's the question. Is there always a reasonable opportunity to withdraw after you see that there's a gun in the offense that you didn't expect to be there? And do you think that there has to be a reasonable opportunity to withdraw? Or would you say, no, everybody has a reasonable opportunity to withdraw all the time. You can just leave. Two points on that. First, I think a lot of that would come in through the duress defense. I mean, if you really feel like, oh, my God, this guy is a gun and he might shoot me if I withdraw. I think you have a pretty solid duress defense. The other point I would say, which is maybe a little tangential to the hypothetical, is there's a traditional doctrine of 18 in a betting law. This is at 2.06 of the Model Penal Code. It's in the Lafayette treaties and the Wharton treaties, that if you counterman your assistance after you've assisted, but before the crime is accomplished or completed, for example, if your assistance was only encouraging, you start discouraging. Or if you take all actions possible to prevent the crime, for example, you assisted, you have a change of part, you call the police to prevent the crime, you're not liable for 18 in a betting. And I think that reflects a broader point, which is that the traditional common law contours of 18 in a betting work pretty well with the contemporary purposes and problems that this statute was designed to solve. I mean, this is a statute about the mix of guns and drugs or guns and violence. And I don't see why Mr. L. Wood contends that if you assist one side of that or equation or the other, it's a different result. I think if you assist either side of that equation, knowing that the equation is going to happen, by the principle, that's 18 in a betting. It's 18 in a betting under the historical test. I think it's 18 in a betting under this Court's cases. I don't see why there would be a different result. Mr. Bash, would you explain why in this situation the gun 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 gun abetted a drug deal when the deal failed? Well, of course, the prosecution's principal theory was that he was the gunman who brought it along to facilitate his drug deal. But assuming the theory of the facts that the gun was fired after Gonzalez absconded with the drugs, I mean, I think one way to think about it is like this. Suppose that what had happened is that Gonzalez had gotten 10 paces and Petitioner had been engaged the drugs back. I don't think this Court or courts generally would expect the government to charge two counts of possession with intent to distribute for that brief period in which someone snatches possession away and you get it. That was certainly what the prosecutor thought here. And it's obviously not the issue in this case. The only way that question comes into this case is that Mr. L. Wood is trying to say that the prosecutor understood that you didn't need for knowledge of the gun. And that's not what the prosecutor understood. The prosecutor understood that this offense could continue for at least some period after in which the Confederates gave chase to reclaim the drugs. And that may have been a wrong theory, but no one below ever understood that you could be convicted if you didn't know of the gun until your participation ended. That's why Petitioner never objected on that ground. And that's why, of course, we submit that it should be reviewed to my Court. And you agree that for aiding and abetting, you must, the gun offense, you must have knowledge that the gun is being carried by the cohort. Yes. You agree with it? The Carrier used to this. Could the defendant here have convicted of possession of the ammunition on the theory that under the instructions, would the instructions have allowed that conviction on the theory that the defendant ate it and abetted somebody else's possession of the ammunition? I don't think so, because the judge never instructed that if you ate in abet, that's the equivalent of constructive possession of the bullets. And in fact, I mean, what constructive possession means is you had the ability to exercise control over this, over the ammunition. So it doesn't gel with his theory that, oh, I didn't know about the gun until after the shots were fired. I mean, I don't think anyone thought that you could get conviction because the shells were on the ground or something, and you could pick them up after they were fired. The obvious view was that he was the person who shot the gun. And at minimum, I think those convictions, because there were no aiding and abetting instructions on them, show that he must have known about the gun ahead of time if he could exercise a minimum constructive possession over the ammunition fired from him. What's the point of charging him with possession of the gun and possession of the bullets in the gun? It would seem to me that the proof would be pretty much the same. The proof was the same in this case. They didn't charge him with possession of the gun. They charged him with user care enduring and in relation to the drug trafficking offense. And then there were two counts of possession of the ammunition, which were linked to his felony status and his alien status, unlawful alien status. I guess on the question is, what's the point of charging him with possession of the bullets if you're not charging him with possession of the gun? 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 and possession of the firearm in this case. Kagan, what sticks in my crawl a little bit about your possession is this. Usually, we want punishment to 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 there's, let's say, a crime two people are involved in it. 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, but it's really pretty small compared to the overall crime. And then in addition to that, that person does not have really full-fledged intent. Just has a kind of knowledge that this other person with real, purposeive intent is going to bring a gun. 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. We are seeing that. I think that that that jails with the historical law of 18 and 20 years ofAss pulls out the chasing damage at the right time, creeps out in the batting which, as Judge Friendly said in the case you signed a brief gargoulo, assistance of even slight moment counts. But I just I would have thought that the Actas Reyes can be very small. But almost a compensate for that. You have to have full-fledged intent. You have to have a really kind of purpose of purpose that the crime succeed as opposed just knowledge of what will happen. D.J. S. Kagan, I don't think that can be right for the examples I gave. Pay accomplices that don't have a stake or the person who lends the gun to be a good guy. And let me contrast that I never got to this example with what a pure knowledge standard would look like. Suppose there was looting, and the defendant breaks into the store to facilitate his own entry in the store to steal goods. But he knows there's 20 people coming behind him, and he has now facilitated their entry into the store, too. That is not eating and abetting under our theory, because he did not even bear the intent to facilitate by which we mean the intent to make some step in another person's crime easier. He knew it would do that, but that was incidental to an intent to facilitate his own crime. So I do think the men's rea is significantly ratcheted up from what a pure knowledge standard would look like. Would you agree that in order to show eating abetting, and I'll just quote from the California case here, that the atear and abetter has to have knowledge of the criminal purpose of the perpetrator. And the intent to facilitate it? Yes. I think what that formulation masks is exactly what intent to facilitate means, and I think that might be part of the disagreement among the parties, and what we say is that it means an intent to make some step in what you know is a crime that he intent, the principal intends to do easier. And I think it's got to be that. That's also the formulation in the historical sources. We cite a page 47 and footnote 10 of our brief. It's either the intent to commit the crime yourself or knowledge that the other person has that intent. And I don't see how it can be anything else. I mean, if you assist someone in a, just to be a good person, not because you care if the crime succeeds. And if you ask them, and with the truth, Saram, do you want the crime to succeed, you say, well, I'm totally indifferent to the crime. Would you agree that the statement, that the first part of the instruction that the district court gave, defendant knew his cohort used the firearm is inaccurate, is incomplete. Not potentially misleading. In isolation, potentially misleading, I think in context how reasonable jurors would understand this and how the parties understood it because no one raised an objection to this below, I think they understood that your knowledge had to arise before your completion of your presentation. You would never, if you got a call from the U.S. Assistant U.S. Attorney in the field, said this is the instruction I'm going to use, you would tell them, no, don't do that. We would, but the reason this court has, or the reason courts generally have objection rules is when questions about particular verb tenses and phrases arise, the defendant, or one of the parties, is supposed to actually object to that in the district court. That didn't happen here. No, I know you have arguments about failure to object in harmless error, but in a substance of it, you think the instruction, you would never counsel someone to give that instruction. Well, I think as we said in the brief, it would have been clear to say, would use or something that makes absolutely clear that you required for knowledge. 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. It could clarify one facilitation with respect to either conduct element is enough, as far as act is raised, to 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. What, why do you say you say, in context it was okay? What, what context? The, Justice Scalia, the instruction, or part of the same instruction, the paragraph immediately before, just mirror it. That's it. Just that. In order to aid or about another to commit a crime, it is necessary that, definitive willfully and knowingly associated himself in some way with the crime. And then- Well, to help make the crime succeed, and I think a reasonable person reading that would not think I helped make the 924C crime succeed if I didn't even know about the gun, until I was after doing what I was done doing whatever I was going to do. And I also point the Court to page 194, which makes clear that knowingly in that second part of the instruction is defined as voluntarily and intentionally. So you certainly had to intentionally participate in a drug traffic in crime. And that, part of the context, as this Court has said, is all- Sagan, you're knowing that a gun would be used. You had to intentionally participate knowing that a gun would be used. But basically a slight tweak, which is knowing that the principal bore the intent to use a gun. Obviously, you can't know the future. It's that you know that the principal bore that intent, which is a little bit different by I think we're saying the same thing. I don't see how would make the crime succeed helps you because you would say the crime that he has to help make succeed is the underlying drug offense, not the use of the firearm. No, Mr. Chief Justice, we wouldn't say that this umbrella instruction applied to count one and two. The crime you're help making succeed is 924C. What I was saying earlier was that what does it mean to help make a crime succeed? It means intent to make at least one step in that crime easier knowing the other person bore the intent to do the crime. And I think that's how we normally think about it. If there's an armed robbery and you say, well, I'll drive the getaway car. I think you would naturally say in ordinary English you intended to help make that crime succeed even if you didn't bear a specific intent with respect to the gun. I certainly think on, you know, if this had been objected to below, it might be a different matter where Mr. L would, but he did not object to this below. He didn't raise this wording issue even in the Court of Appeals. He raised a sufficiency challenge with respect to foreknowledge, but he even as Court of Appeals briefed, he didn't say that the instructions in this case were wrong because it said used versus wood use. So I don't think the issue is properly here, but I think it would be a sensible resolution if the Court were to remand these case specific issues after clarifying the basic standard of 80 and embedding to the Court of Appeals to work through the forfeiture and waiver and harmless air and so forth. If there are no further questions. Thank you, Council. Mr. L, would you have four minutes remaining? Thank you, Mr. Chief Justice. One point that I want to emphasize is a point made by Justice Kagan, which is that traditionally because the actous reas is relatively small for adding embedding 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 principle, that they ordinarily require purposeful intent. And as Professor Wayne LaFave said, who obviously doesn't have a stake in the case, liability has seldom been imposed on the basis of knowing assistance. The background rule is that it has to be purposeful intent. The cases should I look up for that. I think that is to say, I thought generally in the criminal law a person who commits an illegal act is liable for the known consequences of that act. That is the general rule. I can't think, I mean, people use all kinds of terminology, you know, different kinds of terminology, but I thought that is the basic principle. The standard for accomplice liability requires purposeful intent. It is general. Where do I say it when you say purposeful intent? He didn't want it, but he knew it would happen. And moreover, he helped to produce the occasion on which it would happen. It was his purpose for doing it. And the cases you can look at are, Nyan Nissen. We just tell me we're in the grief, they are. Are you already aware of these? I mean, Nyan Nissen, Nyan Nissen, which is a case of this court from 1949, where the court adopted the standard from the Learned Hand Case Pione that adopted the purposeful intent standard. And Pione is obviously very important in case as well, but Hicks. And Hicks in 1893, this Court reversed a conviction because the jury instruction did not require proof of intent to encourage the Court. We used the word intent. Some people used it in order to encompass the situation of the known but undesired purpose. But the Court went on to say that action for any other purpose, even if with the, even if it had the effect. That's a language. I'm sure you'll find language. 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. I would commit, you know, blowing up the carriage. And you kill the maid who you didn't want to kill. You're liable. I would point you to which one is the fate. I'm sorry, I don't have a case of the top of my head. I know that they say the principal will go, but Lafayette, chapter 13.2 collects cases. And he makes the point there that liability has seldom been imposed on the basis of knowing assistance for eight years in a better, is you have to have purposefully. At that say, Lafayette. Lafayette. Lafayette. Wayne Lafayette. Councillor, do you have anything for us on Rule 30? You know, on Rule 30, I won't pretend that it was a model of clarity in preserving the air about after arriving, after arising intent. But I will say that there is no contest. I mean, that is to us, just as a sign that, of how messed up the jury instructions are. But we did preserve, we say, our objection both with respect to the absence of facilitating the right offense. And the intent to commit the crime as opposed to knowledge that the gun would be used. And so how did you preserve that objection? With respect to intent and the, by objecting to their instruction on the basis that it didn't include intentional facilitation of the 924 CFS. And if there are no further questions, I will rely on our submission. Thank you, Council. Case is submitted

Legal Case Summary

Rosemond v. United States

Date Argued: Tue Nov 12 2013

Case Number: 146440

Docket Number: 2599469

Judges:Not available

Duration: 54 minutes

Court Name: Supreme Court

Case Summary

Rosemond v. United States

Oral Audio Transcript(Beta version)