JUSTUS C. ROSEMOND, PETITIONER
Argued November 12, 2013
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
[134 S.Ct. 1241] Syllabus [*]
Petitioner Justus Rosemond took part in a drug deal in which either he or one of his confederates fired a gun. Because the shooter's identity was disputed, the Government charged Rosemond with violating 18 U.S.C. §924(c) by using or carrying a gun in connection with a drug trafficking crime, or, in the alternative, aiding and abetting that offense under 18 U.S.C. §2. The trial judge instructed the jury that Rosemond was guilty of aiding and abetting the §924(c) offense if he (1) "knew his cohort used a firearm in the drug trafficking crime" and (2) "knowingly and actively participated in the drug trafficking crime." This deviated from Rosemond's proposed instruction that the jury must find that he acted intentionally "to facilitate or encourage" the firearm's use, as opposed to merely the predicate drug offense. Rosemond was convicted, and the Tenth Circuit affirmed, rejecting his argument that the District Court's aiding and abetting instructions were erroneous.
1. The Government establishes that a defendant aided and abetted a §924(c) violation by proving that the defendant actively participated in the underlying drug trafficking or violent crime with advance [134 S.Ct. 1242] knowledge that a confederate would use or carry a gun during the crime's commission. Pp. 1245 - 1251, 188 L.Ed.2d, at 258-265.
(a) The federal aiding and abetting statute, which derives from common-law standards for accomplice liability, has two components. A person is liable under §2 only if he (1) takes an affirmative act in furtherance of the underlying offense (2) with the intent to facilitate that offense's commission. Pp. 1245-1246, 188 L.Ed.2d, at 258-259.
(b) The first question is whether Rosemond's conduct was sufficient to satisfy the affirmative act requirement of aiding and abetting. Section 924(c) has two elements: a drug deal or violent crime, and using or carrying a firearm in connection with that crime. The instructions permitted the jury to convict Rosemond of aiding and abetting even if he facilitated only the drug element, and not the gun element, of the §924(c) offense. Those instructions were correct. The common law imposed aiding and abetting liability on a person who facilitated any element of a criminal offense, even if he did not facilitate all elements. That principle continues to govern §2. See, e.g., United States v. Johnson, 319 U.S. 503, 515, 63 S.Ct. 1233, 87 L.Ed.1546, 1943 C.B. 995. Pp. 1245 – 1249, 188 L.Ed.2d, at 259-261.
(c) In addition to conduct extending to some part of the crime, aiding and abetting requires intent extending to the whole crime. The defendant must not just associate himself with the venture, but also participate in it as something that he wishes to bring about and seek by his actions to make it succeed. Nye & Nissen v. United States, 336 U.S. 613, 619, 69 S.Ct. 766, 93 L.Ed. 919. That requirement is satisfied when a person actively participates in a criminal venture with full knowledge of the circumstances constituting the charged offense. See Pereira v. United States, 347 U.S. 1, 12, 74 S.Ct. 358, 98 L.Ed. 435. An active participant in a drug transaction has the intent needed to aid and abet a §924(c) violation when he knows that one of his confederates will carry a gun. This must be advance knowledge-meaning, knowledge at a time when the accomplice has a reasonable opportunity to walk away. Pp. 1248 - 1251, 188 L.Ed.2d, at 261-265.
2. The trial court's jury instructions were erroneous because they failed to require that Rosemond knew in advance that one of his cohorts would be armed. In telling the jury to consider merely whether Rosemond "knew his cohort used a firearm, " the court did not direct the jury to determine when Rosemond obtained the requisite knowledge-i.e., to decide whether Rosemond knew about the gun in sufficient time to withdraw from the crime. The case is remanded to permit the Tenth Circuit to address whether this objection was properly preserved and whether any error was harmless. Pp. 1251 - 1252, 188 L.Ed.2d, at 265-266.
695 F.3d 1151, vacated and remanded.
John P. Elwood, Washington, DC, for Petitioner.
John F. Bash, Washington, DC, for Respondent.
Donald B. Verrilli, Jr., Solicitor General, Mythili Raman, Acting Assistant Attorney General, Michael R. Dreeben. Deputy Solicitor General, John F. Bash, Assistant to the Solicitor General, Counsel of Record, Joel M. Gershowitz. Washington, DC., for United States.
Robert J. Gorence, Gore nee & Oliveros, P.C., Albuquerque, NM, John P. Elwood, [134 S.Ct. 1243] Counsel of Record, Eric A. White, Travis R. Wimberly, Vinson & Elkins LLP, Washington, DC, David T. Goldberg, Donahue & Goldberg, LLP, New York, NY, Daniel R. Ortiz, Charlottesville, VA, for Petitioner.
KAGAN, J., delivered the opinion of the Court, in which ROBERTS, C. J., and Kennedy, Ginsburg, Breyer, and Sotomayor, JJ., joined, and in which SCALIA, J., joined in all but footnotes 7 and 8. ALITO, J., filed an opinion concurring in part and dissenting in part, in which Thomas, J., joined.
A federal criminal statute, §924(c) of Title 18, prohibits "us[ing] or carr[ying]" a firearm "during and in relation to any crime of violence or drug trafficking crime." In this case, we consider what the Government must show when it accuses a defendant of aiding or abetting that offense. We hold that the Government makes its case by proving 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. We also conclude that the jury instructions given below were erroneous because they failed to require that the defendant knew in advance that one of his cohorts would be armed.
This case arises from a drug deal gone bad. Vashti Perez arranged to sell a pound of marijuana to Ricardo Gonzales and Coby Painter. She drove to a local park to make the exchange, accompanied by two confederates, Ronald Joseph and petitioner Justus Rosemond. One of those men apparently took the front passenger seat and the other sat in the back, but witnesses dispute who was where. At the designated meeting place, Gonzales climbed into the car's backseat while Painter waited outside. The backseat passenger allowed Gonzales to inspect the marijuana. But rather than handing over money, Gonzales punched that man in the face and fled with the drugs. As Gonzales and Painter ran away, one of the male passengers- but again, which one is contested-exited the car and fired several shots from a semiautomatic handgun. The shooter then re-entered the vehicle, and all three would-be drug dealers gave chase after the buyers-turned-robbers. But before the three could catch their quarry, a police officer, responding to a dispatcher's alert, pulled their car over. This federal prosecution of Rosemond followed.
The Government charged Rosemond with, inter alia, violating §924(c) by using a gun in connection with a drug trafficking crime, or aiding and abetting that offense under §2 of Title 18. Section 924(c) provides that "any person who, during and in relation to any crime of violence or drug trafficking crime[, ] . . . uses or carries a firearm, " shall receive a five-year mandatory-minimum sentence, with seven- and ten-year minimums applicable, respectively, if the firearm is also brandished or discharged. 18 U.S.C. §924(c)(1)(A). Section 2, for its part, is the federal aiding and abetting statute: It provides that "[w]hoever ...