Joining every other circuit to decide the question, the Sixth Circuit held in Nicholson v. United States (No. 21-1768) and Sorrell v. United States (No. 21-1779), that aiding and abetting a "crime of violence" is still a "crime of violence" under the force clause in 18 U.S.C. § 924(c).
The petitioners in these consolidated 2255 appeals were convicted after a jury trial of (among other things) using and carrying a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c). The “crime of violence” element was predicated on the jury finding that the defendants committed either one of two other offenses charged under the Violent Crimes in Aid of Racketeering (VICAR) statute, 18 U.S.C. § 1959—both arising from the assault of a rival gang member but with one being VICAR conspiracy to commit assault and one being VICAR aiding and abetting assault with a dangerous weapon.
Everyone agreed that under existing precedent, VICAR conspiracy to commit a crime of violence is not a crime of violence no matter the predicate offense. And the Court quickly dispatched the question whether VICAR assault with a deadly weapon is a crime of violence, relying on its rule that any assault, no matter how minimal, satisfies the force clause when committed with a gun. The central issue became whether the § 924(c) conviction remained valid as alternatively predicated on VICAR aiding and abetting that crime of violence.
Under § 924(c), the force clause requires that the offense have “as an element the use, attempted use, or threatened use of physical force against the person or property of another.” In United States v. Taylor, 142 S. Ct. 2015 (2022), the Supreme Court held that attempted Hobbs Act robbery is not a crime of violence under § 924(c). It reasoned that because the attempt crime at issue requires proof only of an intent to commit the crime and a substantial step toward it—which could be just arriving at the planned location with intent and tools—it does not satisfy the force clause.
The petitioners here contended that aiding and abetting as defined in Rosemond v. United States, 572 U.S. 65 (2014), means that the government must prove only two elements: an affirmative act in furtherance of an offense (which could be mere words of encouragement) and the intent to facilitate the offense’s commission. But the Sixth Circuit was not swayed, focusing on the fact that the government still must prove that someone committed all the elements of the charged crime of violence—unlike for the incomplete attempt offense in Taylor. The Court also relied heavily on the fact that a person convicted of aiding and abetting is treated as a principal.
Finally, the Court in Nicholson rejected the petitioners’ claim that because the jury could have been non-unanimous in its decision about which predicate supported the § 924(c) conviction—the invalid VICAR conspiracy or the valid VICAR aiding-and-abetting—their conviction must be vacated. Following its recent decision in Baugh v. United States, 64 F.4th 779 (2023), the Court held that the invalid conspiracy offense did not encompass conduct beyond the scope of the valid aiding and abetting offense (both arising from the same scheme to assault the rival), so the error was harmless.
Opinion here: https://www.opn.ca6.uscourts.gov/opinions.pdf/23a0183p-06.pdf
While certainly a blow for post-Taylor aiding and abetting arguments in this Circuit, Nicholson still leaves room for (and provides inferential support for) challenging predicates that do not rise to the level of aiding and abetting, either because they do not require proof of the commission of the completed offense (by anyone) or because they do not treat the defendant the same as a principle or an aider or abettor, but something less. E.g., United States v. Benton, 639 F.3d 723 (6th Cir. 2011) (holding that Tennessee solicitation to commit aggravated assault is not a violent felony under the ACCA’s force clause because solicitation is “distinguished from” criminal responsibility as an accessory before the fact or as an aider and abettor under Tennessee law).
No comments:
Post a Comment