Rosemond, Mens Rea, and the Elements of Complicity

The confluence of two widely invoked federal statutes – one governing accomplice liability, the other imposing a sentencing enhancement when firearms are involved in a violent or drug-trafficking crime – reached the Supreme Court this past Term in Rosemond v. United States. The Court’s analysis of the mens rea issues raised in that case starkly illustrates the confusion characterizing this area of complicity law, which has attracted surprisingly little attention from courts, legislators, or scholars. The lack of clarity is particularly acute for crimes like the weapons offense in Rosemond that can plausibly be interpreted to include a circumstance element. This Article attempts to fill the gap in the law and academic literature, analyzing the competing ways in which the elements of the crime in question in Rosemond can be classified. Moving beyond the confines of Rosemond, the Article proposes generally that the mens rea of purpose traditionally required for accomplice liability extend to every conduct element of a crime, as well as to circumstance elements if criminal law narrowly defines the concept of conduct as the defendant’s willed movements. If, however, the line between conduct and circumstance elements is drawn such that conduct is more broadly conceived, this Article would attach the same mens rea vis-a-vis attendant circumstances to both the principal and her accessories. This approach, the Article concludes, appropriately limits accomplice liability to those demonstrating sufficient culpability with respect to the gravamen of the crime and thus preserves the rationales underlying complicity law’s imposition of a relatively onerous mens rea burden on the prosecution