Rosemond v. United States, 12–895.

CourtUnited States Supreme Court
Writing for the CourtJustice KAGAN delivered the opinion of the Court.
Citation188 L.Ed.2d 248,134 S.Ct. 1240,572 U.S. 65
Parties Justus C. ROSEMOND, Petitioner v. UNITED STATES.
Docket NumberNo. 12–895.,12–895.
Decision Date05 March 2014

572 U.S. 65
134 S.Ct. 1240
188 L.Ed.2d 248

Justus C. ROSEMOND, Petitioner

No. 12–895.

Supreme Court of the United States

Argued Nov. 12, 2013.
Decided March 5, 2014.

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, Gorence & 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.

Justice KAGAN delivered the opinion of the Court.**

572 U.S. 67

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

572 U.S. 68

their quarry, a police officer, responding to a dispatcher's alert, pulled their car over. This federal prosecution of Rosemond followed.1

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 commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission is punishable as a principal."

Consistent with the indictment, the Government prosecuted the § 924(c) charge on two alternative theories. The Government's primary contention was that Rosemond

134 S.Ct. 1244

himself used the firearm during the aborted drug transaction. But recognizing that the identity of the shooter was disputed, the Government also offered a back-up argument: Even if it was Joseph who fired the gun as the drug deal fell apart, Rosemond aided and abetted the § 924(c) violation.

The District Judge accordingly instructed the jury on aiding and abetting law. He first explained, in a way challenged by neither party, the rudiments of § 2. Under that statute, the judge stated, "[a] person who aids or abets another to commit an offense is just as guilty of that offense as if he committed it himself." App. 195. And in order to aid or abet, the defendant must "willfully and knowingly associate[ ] himself in some way with the crime, and ... seek[ ] by some act to help make the crime succeed." Id ., at 196. The

572 U.S. 69

judge then turned to applying those general principles to § 924 (c) —and there, he deviated from an instruction Rosemond had proposed. According to Rosemond, a defendant could be found guilty of aiding or abetting a § 924(c) violation only if he "intentionally took some action to facilitate or encourage the use of the firearm," as opposed to the predicate drug offense. Id ., at 14. But the District Judge disagreed, instead telling the jury that it could convict if "(1) the defendant knew his cohort used a firearm in the drug trafficking crime, and (2) the defendant knowingly and actively participated in the drug trafficking crime." Id., at 196. In closing argument, the prosecutor contended that Rosemond easily satisfied that standard, so that even if he had not "fired the gun, he's still guilty of the crime." Id ., at 158. After all, the prosecutor stated, Rosemond " certainly knew [of] and actively participated in" the drug transaction. Ibid . "And with regards to the other element," the prosecutor urged, "the fact is a person cannot be present and active at a drug deal when shots are fired and not know their cohort is using a gun. You simply can't do it." Ibid .

The jury convicted Rosemond of violating § 924(c) (as well as all other offenses charged). The verdict form was general: It did not reveal whether the jury found that Rosemond himself had used the gun or instead had aided and abetted a confederate's use during the marijuana deal. As required by § 924(c), the trial court imposed a consecutive sentence of 120 months of imprisonment for the statute's violation.

The Tenth Circuit affirmed, rejecting Rosemond's argument that the District Court's aiding and abetting instructions were erroneous.2 The Court of Appeals acknowledged

572 U.S. 70

that some other Circuits agreed with Rosemond that a defendant aids and abets a § 924(c) offense only if he intentionally takes "some action to facilitate or encourage his cohort's use of the firearm." 695 F.3d 1151, 1155 (2012).3 But the Tenth Circuit had already adopted a different standard, which it thought consonant with the District Court's instructions. See, e.g., United States v. Wiseman, 172 F.3d 1196, 1217 (1999) (requiring that the defendant "actively participated in the" underlying crime and "knew [his confederate]

134 S.Ct. 1245

was carrying [a] firearm"). And the Court of Appeals held that Rosemond had presented no sufficient reason for departing from that precedent. See 695 F.3d, at 1156.

We granted certiorari, 569 U.S. ––––, 133 S.Ct. 2734, 186 L.Ed.2d 191 (2013), to resolve the Circuit conflict over what it takes to aid and abet a § 924(c) offense. Although we disagree with Rosemond's principal arguments, we find that the trial court erred in instructing the jury. We therefore vacate the judgment below.


The federal aiding and abetting statute, 18 U.S.C. § 2, states that a person who furthers—more specifically, who "aids, abets, counsels, commands, induces or procures"—the commission of a federal offense "is punishable as a principal." That provision derives from (though simplifies) common-law standards for accomplice liability. See, e.g., Standefer v. United States, 447 U.S. 10, 14–19, 100 S.Ct. 1999, 64 L.Ed.2d 689 (1980) ; United States v. Peoni, 100 F.2d 401, 402 (C.A.2 1938) (L. Hand, J.) ("The substance of [ § 2' s] formula goes back a long way"). And in so doing, § 2 reflects a centuries-old view of culpability: that a person may be responsible for a crime he has not personally carried out if he helps another to complete its commission. See J. Hawley & M. McGregor, Criminal Law 81 (1899).

572 U.S. 71

We have previously held that under § 2"those who provide knowing aid to persons committing federal crimes, with the intent to facilitate the crime, are themselves committing a crime." Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N. A., 511 U.S. 164, 181, 114 S.Ct. 1439, 128 L.Ed.2d 119 (1994). Both parties here embrace that formulation, and agree as well that it has two components. See Brief for Petitioner 28; Brief for United States 14. As at common law, a person is liable under § 2 for aiding and abetting a crime if (and only if) he (1) takes an affirmative act in furtherance of that offense, (2) with the intent of facilitating the offense's commission. See 2 W. LaFave, Substantive Criminal Law § 13.2, p. 337 (2003) (hereinafter LaFave) (an...

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