Utah Aiding and Abetting Case Examined by SCOTUS

Supreme Court Examines Aiding and Abetting

Photo: Miroslav Pragl/Wikimedia Commons

In a 2007 Utah case of a drug deal gone bad, the facts have been unclear since the beginning. However, what is known is that one of the defendants was charged with possessing drugs with an intent to distribute, possessing ammunition as a felon, and a firearms charge revolving around either discharging the weapon or aiding and abetting the use of one (although this delves into murky waters again, as it was unclear who actually fired the weapon or had knowledge of it).

These charges led to a sentence of 48 months in prison, plus an addition mandatory sentence of ten years for the firearms charge under Federal law. This conviction was appealed on the basis that the trial judge erroneously instructed the jury regarding the aiding and abetting aspect of the crime, but the Denver-based 10th Circuit Court of Appeals agreed with the trial court, and the case of Rosemond v. United States continued on to the U.S. Supreme Court in November of 2013.

Who’s on First, and Who Shot Whom? The Case at Hand

In 2007 in Tooele, Utah, Justus Rosemond, a previously convicted felon, and two others were attempting to sell a pound of marijuana in a deal set up by one of Rosemond’s accomplices. Upon arrival at the scene of the crime, the potential buyers inspected the marijuana and then assaulted one of Rosemond’s accomplices and ran. Shots from a 9mm were fired at the thieves, and the would-be-drug dealers gave chase.

Those are the only facts not being disputed. After this point, the details get fuzzy. Regarding the shots fired, testimony was unclear as to who did the actual shooting. Immunity was given to both of Rosemond’s accomplices in exchange for their testimony (but not to the convicted felon Rosemond), but while one of the suspects claimed it was Rosemond, the other said her back was turned and she didn’t see who it was–a change from her earlier statement. Even the testimony of a witness was inconclusive.

These details were considered irrelevant by the prosecution who tried Rosemond under one of two theories, either A) he was the actual shooter, or B) he was guilty of aiding and abetting the drug crime because he knew a gun was used. Notice the last part, “he knew a gun was used.” When the jury brought back a guilty verdict, it was a “general verdict,” meaning that they did not state under which theory they convicted him.

So What Actually Constitutes Aiding and Abetting?

Rosemond didn’t appeal any of the convictions except for the firearms charge which added a mandatory ten years to his sentence. The reason for this mandatory sentence can be found under U.S. Code 924(c), which essentially states that if a weapon is used in the furtherance of a drug crime, someone guilty of aiding and abetting that crime is as guilty as the person who used the gun.

However, in the response from the Supreme Court, they stated that in order to be found guilty of aiding and abetting, the government must prove “that the defendant actively participated in the underlying drug trafficking or violent crime with advance knowledge that a confederate would use or carry a gun during the crime’s commission.”

This “advance knowledge” is different than the prosecution and judge’s direction to the jury that he would be guilty of the aiding and abetting if he “knew his cohort used a firearm in the drug trafficking crime.” The defense maintained that he needed to have acted intentionally “to facilitate or encourage” the firearm’s use.

When the case was taken to the 10th Circuit Court of Appeals, they agreed with the district court, even though they stated other Circuit Courts had found along the same lines as the defense. They justified this by stating that previous cases in their circuit had already established precedence in this matter.

While the prosecution stated that even if Rosemond didn’t have advanced knowledge that a gun would be used, the fact that the crime continued (via the car chase) after shots had been fired contributed to their argument that the Rosemond facilitated or encouraged the use of the firearm. According to prosecution, he knew that a gun was used, making him guilty of aiding and abetting.

There were various other arguments on both sides of the issue, and when the case was presented to the U.S. Supreme Court, both the defense and the judges raised various scenarios to establish whether or not aiding and abetting applied in this case.

Ultimately, the Supreme Court found that the circumstances surrounding Rosemond’s case did indeed satisfy certain requirements of 924(c), specifically that he acted with intent to bring about the drug trafficking crime and make it successful “with full knowledge of the circumstances constituting the charged offense.” However, they maintained that the instructions to the trial court jury were erroneous in this issue because “they failed to require that Rosemond knew in advance that one of his cohorts would be armed … to decide whether Rosemond knew about the gun in sufficient time to withdraw from the crime.”

In March of this year, the Supreme Court remanded the case back to the Court of Appeals to determine whether or not this objection was properly preserved and whether the error in instructions was sufficient to cause harm to the final verdict.

Man Arrested Videoing Police; Files First Amendment Violation Suit

Arrested Man Claims First Amendment Violation

Photo: Ed Uthman

It is being speculated that the activities of law enforcement across the nation haven’t been this much in the public eye since the 1960s and 70s. While much of this is being connected to the recent events in Ferguson, Missouri, it seems that the true cause is the proliferation of phones with the capability of taking video. While not everyone is carrying a video camera with them, most people have their phones, and people are using them.

In a recent case in Austin, Texas, a man claimed a U.S. Constitution First Amendment violation after he was arrested multiple times for videoing the activities of Austin PD law enforcement officers. He also claimed violations to the Fourth and Fourteenth Amendment of the U.S. Constitution as well as violations of the Bill of Rights to the Texas Constitution and state law. The multiple defendants, ranging from specific officers all the way to the city of Austin itself, asked the District Court to dismiss the case.

Putting Himself in the Wrong Place at the Right Time

The case at hand revolves around three arrests of Antonio Francis Buehler. The first took place in January of 2012 when the plaintiff witnessed two of the defendants engaged in a traffic stop. Seeing what he believed to be unreasonable actions by the police officers, Buehler took out his camera and began filming. He addressed the officer’s directly, however, he didn’t move “more than a couple steps away from his truck.” After the initial suspect was detained, the officers moved toward Buehler, forced him to the ground and arrested him for Resisting Arrest, Search, or Transportation.

According to court records, Buehler filed a complaint with the Austin Police Department Internal Affairs, but no action was taken. In addition, Buehler asserts that he was contacted by another of the defendants, Chief of Police Art Acevedo, and was assured than an investigation would take place, but “[d]espite this personal knowledge and personal assurances, the civil rights violations continued.”

The next two arrests occurred under similar circumstances when Buehler was with members of a group he formed as a result, the Peaceful Streets Project. Both times Buehler was arrested and charged with Interference with Public Duties, his camera was taken, and his reports to Internal Affairs were filed without action being taken.

As a result, Buehler filed the suit claiming a First Amendment violation as well as Fourteenth Amendment, as he stated he had a right to film and publish the conduct of law enforcement officers. He went on to claim further violations to the Fourteenth Amendment as well as Fourth Amendment, “specifically false arrest, excessive force, unlawful search and seizure, and malicious prosecution.” In addition, he claimed the City of Austin and Police Chief Acevedo were liable because the failed to have a policy regarding “how Austin police officers should proceed when a private citizen records their conduct” and because they had knowledge of alleged civil rights violations but didn’t take action to remedy or prevent further violations.

So Was it a First Amendment Violation?

Without a doubt, the biggest question regarding this case is whether the actions of the defendants constituted a First Amendment violation or whether to dismiss the case.

To decide whether or not to dismiss this case, per the wishes of the defendants, the District Court had to examine several factors. First, they evaluated whether or not the defendants’ actions fell under “qualified immunity,” which protects state officials from civil damages when acting in official capacities. This is a two-step process. The first is establishing if a constitutional right has been violated, and the second step is determining whether or not the defendants’ alleged conduct was reasonable.

In regards to the claim of a First Amendment violation, the defense claimed that the right to photograph or videotape a police officer is not a constitutional right. However, citing several cases, the District Court decided this did indeed fall under that right. Among aspects of the First Amendment they discussed were included:

  • Right to assemble in a public forum, citing a case that referred to it as “the most precious of the liberties safeguarded by the Bill of Rights.”
  • Right of individuals to speak on matters of public concern, citing precedent by the Fifth Circuit Court of Appeals establishing “speech concerning police misconduct” as a matter of public concern.
  • Right of private individuals to receive and gather information. Again citing multiple cases and referring to the changing face of the media and news reporting, the District Court found that private individuals have the same rights to receive and gather information of public concern as that of the press.

Given these considerations, it seemed obvious that a First Amendment violation had taken place. The District Court went on to say that these rights are not without limit and that a police officer must be free to perform his official duties without undue interference. However, they quoted another case stating, “The freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.”

Finding that a First Amendment violation had occurred and that it was an individuals right to photograph or videotape a police officer, the Court went on to also establish that, contrary to defense arguments, this right was clearly established at the time of Buehler’s arrest and that retaliating against a citizen for photographing or videotaping them constituted a depravation of that right.

Regarding whether the officers’ actions were reasonable, the Court referred to Buehler’s allegations that he informed the officers of his intent to record and attempted to comply with their directions so as to not interfere with the performance of their duties. The Court stated that if they accepted these allegations, the officers’ actions could not be considered reasonable. Therefore, the defendants were not considered entitled to qualified immunity.

The First Amendment violation was really the biggest issue at hand, and the Court found that he had a right to seek relief. In regards to the other aspects of his suit, they found as follows:

  • False arrest claims: Granted on the basis that he was arrested without probable cause to believe he committed an offense (based on the charges of “Resisting Arrest, Search, or Transportation” and “Interference with Public Duties”)
  • Malicious prosecution: Dismissed.
  • Use of excessive force: Dismissed. Even though psychological harm can be part of this claim in addition to physical harm, Buehler did not allege any physical or psychological harm.
  • Unlawful search and seizure: Granted in regards to the cameras taken as a result of arrests.

The claims Buehler made against the City of Austin and the Austin PD were a little more complicated. Because Buehler claimed he had notified the police chief of the civil rights violations and no action actions were taken were reason enough for the District Court to grant his claim that the city had failed to establish a policy or adequately train or supervise the officers if such a policy existed.

While certainly not the first of its kind, this case definitely adds another element to this growing concern both with among law enforcement and citizens as to how they interact with one another. While the case clearly states that Buehler was in the right to do what he had done, caution is still strongly advised in these circumstances. Law enforcement officials must carry themselves in a manner befitting their position, but citizens need to remember and be mindful of the tense situations in which those officers find themselves on a daily basis. It’s your right to film, but you must not interfere.

Cellphone Tracking: Not the Exact Science Federal Prosecutors Claim. Court Overturns Conviction based upon Questionable Cell Phone Tracking Data.

Cellphone Tracking Accuracy Questioned

Photo: Marc Johnson

In late 2009, the FBI formed a special unit dedicated to assisting in their investigations of crime utilizing the tracking and analysis of cellphone use. This agency, the Cellular Analysis and Survey Team (C.A.S.T.) has had many successes with their methods. The agency has trained over 5,000 state and local police investigators, and now they want to expand from their current 32 full-time agents. Unfortunately, besides criticisms of invasion of privacy, their methodology, especially when it comes to the area of cellphone tracking and location, has been proven flawed in many cases. One of the biggest cases to shine a light on these flaws deals with Lisa Marie Roberts, of Portland, Oregon, who was recently released from prison after serving almost twelve years for a murder she didn’t commit.

A Case of Flawed Cellphone Tracking

In 2004, Lisa Marie Roberts was told by her court appointed attorney that she should plead guilty for the 2002 murder of her girlfriend, Jerri Williams. Her attorney told her that state cellphone tracking evidence placed her phone within 3.4 miles of the park where Williams’ body was found. Her attorney told her there was no chance of acquittal.

According to a report from the Washington Post, Roberts was quoted as saying, “I just bawled. I didn’t do it.” However, she took the plea deal for a 15 year sentence. In April of this year, the guilty plea was thrown out by U.S. District Court Judge Malcolm F. Marshall. In addition to calling into question the validity of the cellphone tracking evidence [more information in the next section], witness testimony placed her more than 8 miles away from the scene of the crime, and new DNA evidence placed another suspect at the park. Roberts was released from prison at the end of May.

Cellphone Tracking: Misunderstood and Overused Science

Even though cellphone tracking has been used for years by prosecutors, experts are starting to come forward to say that the way the information is being used is flawed. While some are simply calling the technology interpretation “misunderstood,” some are even going so far as to call it “junk science.”

The idea behind cellphone tracking according to C.A.S.T. and prosecutors is that cellphone tower records can pinpoint a person’s precise location. The flawed logic is the assumption that when you make a call, it is automatically routed to the nearest cell tower. Ergo, if a crime has been committed, a search of those records can tell investigators if the suspect was in the vicinity of the crime. Here is a quick layman’s explanation of how cellphones actually work and how this information is being used in a flawed manner:

  • Step 1: Hit “send” on the phone. Depending on whether it is a rural or urban area, the phone sends out a radio-frequency signal to towers within a radius of up to twenty miles.
  • Step 2: A switching center evaluates the call, determines the destination and a software program “decides” which tower to connect your call based on a variety of factors.

 

It is this second step which causes discrepancies and invalidates the use of cellphone tracking as an investigative tool, according to experts. For example, the decision of which tower your call will use may not be the same even if you make repeated calls to the same destination in a short period of time. Sometimes a call will shift towers during the same call. This was another piece of exonerating evidence for Roberts. Apparently she had received another call moments before the one which placed her near the park. This first call came from a tower 1.3 miles away from the second call, but there was no way she could have traveled that distance in the 40 seconds that elapsed between calls.

In addition, sometimes the nearest tower may be overloaded (in the case of too many people using the tower, for example at a sporting event) or under routine maintenance, in which case your call is routed to a different tower. According to a report from The New Yorker, the only certainty is that your call will connect with a tower “somewhere within a range of roughly twenty miles.” Even if one figures half of that radius [10 miles] and the fact that most towers have three directional antennae, each covering a third of the circle, you still get an area of almost 105 square miles. Not very accurate science.

Cellphone Tracking Hits and Misses

While it’s true that this method isn’t to be trusted without question, there have been instances where investigators have been–and could potentially continue to be–successful. For example, most smartphones have G.P.S. which pinpoints your location to between 50 and 100 feet. Also, if you are under investigation, law enforcement agencies can “ping” your phone and give real-time locations.

A successful case in 2010 gave fuel to the fire driving the establishment C.A.S.T. In this case, Kelvin L. Jones, a rogue New York City police officer, staged a $1 million perfume heist. Jones was using a prepaid phone–a similar plan used by other criminals to try to mask their movements–but FBI agents were still able to create a map of locations following Jones’ movements as he pulled off the crime. This led to a successful conviction.

According to the chief of forensics for the Los Angeles County public defender’s office, Jennifer Friedman, “In every major case in Los Angeles, they use cell-tower information…It’s like fingerprints, it’s that common.” However, in a 2012 California murder case, a radio frequency engineer for AT&T testified that towers in the L.A. area have ranges of zero to 20 miles. Other experts have also added that towers can be affected by such things as topography and atmospheric conditions, and even though the FBI has claimed they run “drive tests” to confirm their data, these changing conditions make it nearly impossible to say with certainty that one day’s data matches a day being investigated in the past.

Courts are starting to agree. While there have been successes with cellphone tracking investigations, there have been numerous misses, besides the case of Lisa Marie Roberts. Enough so that many judges are no longer allowing the evidence or instructing jury members to weigh the evidence critically. Even where judges allowing the evidence, many juries, increasingly familiar with modern technology, are starting to figure it out on their own.

While the U.S. Supreme Court recently ruled that warrants must be obtained to search cellphones (which would apply to obtaining the G.P.S. chips from phones), there is currently no national protocol as to whether a warrant is required for getting call records and cellphone tower data.

[For more information on the Supreme Court decision regarding warrants to search cellphones, click on our post, Cellphone Privacy and Fourth Amendment Upheld by Supreme Court.]

In the case of Lisa Marie Roberts, to get back to the beginning, this case illustrates the importance of an experienced criminal defense attorney. Roberts’ court appointed attorney encouraged her to take the plea deal without even looking at the evidence or considering the implications or flaws. If you have been charged with a crime where the evidence deals with your cellphone, make sure you contact a criminal defense attorney who will do everything in their power to assure your rights.