The End of Joint Venture for Possessory Firearm Offenses: Commonwealth v. Humphries Exposes Theory Flaws

Massachusetts has developed a rather unusual approach to accomplice liability when the Commonwealth's theory of the case is one of joint venture.  Having torn down the distinction between principal and participant, joint venture allows the Commonwealth to convict an individual involved - even if tangentially - in a criminal act regardless of whether there was an agreement to commit a crime and regardless of whether the offensive acts exceeded the realm of reasonable foreseeability.

The current incarnation of the theory is that because all "joint venturers" carry the same intent, all are charged equally regardless of individual action.  Because it is a theory and not an actual offense, it need not be charged in an indictment.  For clarity, in the Commonwealth of Massachusetts, whether an individual commits the actus reus of a criminal offense or s/he does not, so long as s/he aided and abetted the offense -even if only verbally - the common intent to commit the crime ultimately alleged is shared.  Now, to those who have actually thought about this it sounds a lot like conspiracy which, unlike joint venture, requires the Commonwealth to establish a relationship, agreement to commit a crime, and complicity only to the limit of the reasonable foreseeability of that agreement. Pinkerton v. United States, 328 U.S. 640 (1946).

The agreement within the conspiracy is the essence of the crime - the intent to participate in the offense and all that might flow from it - establishes the mens rea of the crimes that eventually occur.  Yet, with no agreement required, the theory of joint venture liability is fashioned entirely out of air.  The most recent case on this theory of liability exemplifies why its flaws; through these flaws it fails to comport with due process of law.  Although the outcome of the case appears to favor the defendant, it does nothing to advance criminal justice.  Even if accomplice liability is appropriately considered, the current state of joint venture theory is a civil concept and has no place in criminal law.

In Commonwealth v. Humphries, SJC-11237 (July 12, 2013), on both possessory and non-possessory crimes, the defendant was charged as a joint venturer.  The court addressed only the offense of unlawful weapon possession in its joint venture analysis.  Essentially, it reviewed the state of the law that an individual so charged could demonstrate by some evidence that s/he had a license or firearm identification card and shift the burden to the Commonwealth to disprove the defense of license.  The information regarding a license is uniquely known to the defendant in such cases.  Massachusetts has no statewide firearm license registry; the law leaves licensing to the individual police chiefs thus the work for the Commonwealth to prove this element is overwhelming and it need not do so unless the defense of license is raised before trial.  This post says nothing about the constitutionality of that framework both because the Second Amendment has been held to be an individual right and is applicable to the states and because the Commonwealth bears the burden of proof beyond a reasonable doubt of every element of the offense but routinely obtains a jury instruction informing the jury that it may presume the absence of license, merely that this is the state of the law as it stands.

However, when a joint venturer is involved, particularly one not charged with the defendant, that third party may or may not have had lawful possession of the firearm involved in the offense.  Due to the difficulty for the defendant to know this, the burden is not first upon him or her to assert license as a defense; rather the Commonwealth must now prove absence of lawful possession for the firearm of the third party (as to the defendant, the burden-shifting paradigm is the same).  The defendant in such cases need only assert the defense of license prior to trial to trigger this new element of the offense upon the Commonwealth.

Unpacking that a bit, the law now goes something like this: on a possessory offense, where the Commonwealth proceeds under a joint venture theory, if the defendant raises an affirmative defense as to a third party (the presumed joint venturer, whether charged or not), then the Commonwealth must disprove that defense in order to gain conviction.  This necessarily will cause prejudicial joinder in every single possessory case for firearms and motions to sever must be allowed in order to comply with Art. 12's mandate that every subject has the right to produce all proofs that may be favorable to him (or her).  The problem then lies in who is tried first because information gleaned from one trial (i.e. the defendant does not assert an affirmative defense of license, merely raises the question of license of the third party) can be used to convict the second one to face trial (because there was no evidence produced on the defense of license by the first defendant to face trial).  Joint venture does not require any kind of an agreement between the two parties that one member would carry a firearm and it does not recognize the reasonable foreseeability concept (also straight out of civil liability) that an individual who participates in an offense would anticipate consequences outside the immediate commission of the crime.

Query whether this triggers a de facto Wharton's Rule type of dismissal when only one person is charged.  Wharton's Rule - technically not required under Massachusetts law but almost always applied - provides that an agreement by two persons to commit a particular crime cannot be prosecuted as a conspiracy when the crime is of such a nature as necessarily to require the participation of two persons for its commission.  Classic Wharton's Rule offenses include adultery, incest, bigamy, and dueling and all are crimes characterized by an agreement to complete the substantive offense.  

In Commonwealth v. Cantres, 405 Mass. 238, 242 (1989), the court declined to make a general determination of the rule in Massachusetts and stated, possibly in dicta, that it would not apply to conspiracy to distribute controlled substances.  That limitation is questionable after Humphries when, for example, the charge is distribution of under one ounce of marijuana or if there is a defense of a medical prescription for one or more charged – at least with the possession with intent to distribute – when more than one person is charged.  That is, firearms and small amounts of marijuana have moved from the category of presumptive contraband to mere evidence where the evidence may be lawful or excusable but that knowledge is in the mind only of one participant in the offense and as unknowable to any other participant as it is to the Commonwealth.

Taking that into firearms offenses, the Commonwealth has been known to prove complicity in an ultimately charged offense by demonstrating that an individual was aware of the presence of a firearm.  But if the firearm is possessed legally - and there is no way for the individual to know that - and there is no agreement to commit an offense, but an offense ultimately occurs -what culpability does the unarmed individual have?  Or, if several people gather together, some with lawful, licensed weapons and others without and one of the group commits an offense, what kind of liability accrues to those who indeed carried firearms, had no intention to use them save lawfully, and yet were present when a group member committed a criminal act? 

Wharton's Rule applies solely and exclusively to conspiracies and not to joint venture although given the construction of joint venture liability, it is unclear why.  Perhaps it is that the SJC has stated that joint venture liability finds its roots in accessorial or accomplice liability.  Yet, conspiracy or vicarious liability rests in agency law.  This is part of the analytical problem in all of the joint venture theory cases where the Commonwealth is not obliged to indict an additional element in order to net all alleged participants under the actions of the principal. 

Accomplice liability must be, and traditionally has been, a specific offense crime even if the underlying offense may be a general intent crime. Yet this is not the jury instruction given in a charge where the Commonwealth proceeds on joint venture liability.  The jury only must decide whether there has been proof beyond a reasonable doubt for the intent requirement of the underlying offense which, in this era of minimizing mens rea, is almost always a general intent to commit the crime alleged.  The tragedy of joint venture is that the government need never prove that the defendant agreed to commit the ultimate offense charged; merely that the defendant aided and abetted the ultimate offense in some way (or often, that the individual was present at the time the act occurred) regardless of any specific intent to engage in the act charged.

Conspiracy is a different offense altogether.  It has its roots in agency law with the idea that, due to the agreement itself, co-conspirators speak with one voice. United States v. Gooding, 12 Wheat 460, 469 (1827); Lutwak v. United States, 344 U.S. 604, 617 (1953).  This form of liability is vicarious: if two people agree to commit an offense and one person actually accomplishes it, the person who agrees is equally liable through the unity established with the agreement to act.  Thus, the government must prove the specific intent to conspire, the agreement to commit a crime, the fact that the crime alleged flows with reasonable foreseeability from that original agreement and that the conspirator who acted acted with the proper intent to commit the alleged offense.  The tragedy of conspiracy is the broad interpretation of reasonable foreseeability.

Accomplice liability and vicarious liability are NOT the same thing.  Accomplice liability requires both the mental state to commit the crime involved, the participation in some way with the offense AND the knowledge of the principal that the accomplice is there, ready willing and able to help.  It is satisfied only if the accomplice aids or encourages the principal with the intent to promote the crime.  Vicarious (or conspiratorial) liability presumes that all think and act as one; however even actual conspiracy cases have forced courts to shift away from full liability when they infringe upon the demands of due process.  See, i.e. United States v. Hansen, 256 F.Supp.2d 65, 67 n.3 (2003)(citing circuit court decisions questioning vicarious liability for offenses in which the defendant has only a slight connection despite the initial agreement to conspire.  The case also states at 67, "'Foreseeability' is the language of negligence law.  It is not a usual criminal law concept and surely not a concept that puts meaningful due process limits on criminal liability.")

While Massachusetts punishes joint venturers under the accomplice theory, it does not concomitantly increase the mens rea requirement of the Commonwealth's burden of proof.   And, it need not prove any kind of agreement as it would have to do in a conspiracy charge.  As disturbingly broad as conspiracy charges are, joint venture theory cases are often worse for defendants since the burden of proof is too low for an aider and abettor to be charged, convicted and possibly sentenced as the principal without any agreement with the principal to act.

Common law in Massachusetts recognized a principal in the first degree - the individual who with the required mens rea completed the act of the offense.  It also allowed for a principal in the second degree, which was essentially aiding and abetting.  The crime charged and the punishment varied appropriately.  That distinction no longer exists - the Commonwealth is free to charge all alleged participants as principals but present the theory of joint venture liability at trial to all of those charged.  The joint venturer's culpability depends on whether the principal commits the crime...even though there was no agreement to do so and even if no specific intent to perform the criminal acts committed by another exists in the minds of the co-venturers and even if the ultimate offense was not reasonably foreseeable to a casual participant in the events. Given that the Commonwealth can demonstrate accomplice liability from any indication of participation - regardless of agreement to do so - the casual comment could rise to the level of incitement.  This seems to fray the edges of due process of law.

Although there will be both puzzled faces and cheers from the recent Humphries decision, the case itself - along with all of the joint venture cases, especially since the landmark Zanetti case, should press counsel to question whether the theory comports with basic criminal law procedural requirements.  This is true in regard to the charge, the potential punishment, the idea that a co-venturer's statement, even if it would be considered "in furtherance of" a conspiratorial crime, could possibly be submitted against an accomplice without violating the prohibition against hearsay, the application of "reasonable foreseeability" where no initial agreement ever existed or need be proven, and the intent the Commonwealth must prove to obtain conviction which should be the specific intent to aid and abet combined with the principal's intent to commit the offense.  

Humphries is a case to celebrate so long as it is the beginning and not the end of the destruction of joint venture liability in criminal law.