Summary
applying Wilson–Bey to possession of a firearm during a crime of violence
Summary of this case from Perry v. United StatesOpinion
Nos. O5-CF-716 07-CO-637
January 4, 2010
On Appellee's Petition for Rehearing, FEL3155-03.
BEFORE: RUIZ and BLACKBURNE-RIGSBY, Associate Judges, and FERREN, Senior Judge.
ORDER
The government's petition for rehearing is granted to the extent that the division opinion affirming appellant's convictions is modified in Wheeler v. United States, 977 A.2d 973 (D.C. 2009) to the limited extent that follows:
1. On page 985, second column, the first full sentence shall be amended to read in part (with addition shown in bold):
"Every juror found, at the very least, that Wheeler had joined a criminal conspiracy to commit murder with an unknown co-conspirator. . . ."
2. On page 986, second column, the first full sentence shall be amended to read in part (with addition shown in bold):
"Thus, as elaborated in note 34, supra, without a conspiracy, a jury finding on count two. . . ."
3. On page 986, footnote 34 shall be amended to read in part (with additions shown in bold):
". . . Although PFCV apparently may be characterized as a "general intent" crime, see note 11, supra, our recent decision in Lancaster necessarily required the same criminal intent for an aider and abettor of PFCV as for the principal. Because "specific steps to assist . . . in the actual possession of firearms," not mere "`general participation in the criminal venture,'" will be necessary to prove aiding and abetting of the possessory firearms offense," id. at 174, 175 (italics omitted), the charged aider and abettor will have to know and intend the steps taken, amounting to the same mental state required of the principal. No coherent, conceptually sound argument can be made that the required specific steps — inherently purposeful as they must be — can be merely the "natural" or "reasonably foreseeable" consequence of ( i.e. , a mere negligent reaction to) the principal's action. Lancaster, therefore, necessarily implies a requirement that the trial court apply Wilson-Bey to PFCV and instruct accordingly. As a result, Lancaster makes clear that Wilson-Bey is not limited to specific intent crimes — a conclusion that this court reached implicitly last year in Coleman v. United States, 948 A.2d 534 (D.C. 2008). . . ."