18 U.S.C. § 924(c) is a federal criminal statute which prohibits either the use or carrying of a firearm “during and in relation to any crime of violence or drug trafficking crime.”


Firearms are often seen as a necessary tool in the illegal drug business because drug deals frequently go bad. That was the case with Justus C. Rosemond. He was part of a drug deal set up by Vashti Perez who agreed to sell a pound of marijuana to Ricardo Gonzales and Coby Painter. The deal took place in a local park. Perez was accompanied to the park by Rosemond and a second confederate, Ronald Joseph. One of the men sat in the front seat, the other in the back. Witnesses could not positively say who sat where.


At the park Gonzales climbed into the backseat of Perez’s vehicle. Painter waited outside. Perez’s backseat passenger handed Gonzales the drugs to inspect, but instead of paying for them, Gonzales punched the backseat passenger in the face and fled the vehicle with the drugs.


This is where the facts get dicey. One of the two men in Perez’s vehicle jumped out of the car and fired several shots from a semi-automatic handgun at the fleeing Gonzales and Painter. The shooter got back in the vehicle and the Perez posse gave chase after the rip-off duo, but before they catch up with the two, a police officer responding to a dispatch pulled their car over.


The Government indicted Rosemond under two theories: either he used a gun in connection with a drug trafficking crime in violation of § 924(c), or he aided and abetted that offense in violation of 18 U.S.C. § 2(a). As we have pointed out before, § 924(c) is a strict statute: Subsection (c)(1)(A) carries a five-year mandatory minimum sentence when a firearm is used, and seven-year mandatory minimum when the firearm is brandished and a ten-year mandatory minimum when the firearm is discharged. The aiding and abetting statute provides that “whoever commits an offense against the United States or aids and abets, counsels, commands or procures its commission is punishable as a principal.”


While the Government prosecuted Rosemond on these two alternative theories, its primary contention was that Rosemond was the one who used the firearm during the botched drug deal. Because the identity of the shooter was never actually determined, the trial judge had to instruct the jury on the aiding and abetting statute. He charged the jury a “person who aids or abets another to commit an offense is just as guilty of that offense as if he committed it himself.” The judge continued that a defendant must “willfully and knowingly associate himself in some way with the crime, and … seek by some act to help make the crime succeed.”


Neither the Government nor the defendant had a problem with these general instructions, but when it came to applying these principles to § 924(c), the judge refused to follow Rosemond’s proposed instructions. Rosemond had proposed that a defendant could aid and abet a § 924(c) offense only if he “intentionally took some action to facilitate or encourage the use of the firearm.” The judge instead instructed 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.”


The judge’s instructions clearly aided the Government’s case. The prosecutor in his closing argument told the jury that even if Rosemond had not fired the gun, “he’s still guilty of the crime” because he “certainly knew [of] and actively participated in” the drug deal. The prosecutor finished with a gut-punch, saying “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.”


The argument proved persuasive. The jury convicted Rosemond of violating § 924(c) without revealing whether jurors had decided he used the gun himself or had aided and abetted a confederate’s use of the gun. As mandated by the § 924(c), the judge imposed a consecutive sentence of 120 months of imprisonment for its violation.


Last year the U.S. Supreme Court granted certiorari to resolve a conflict among the Federal circuits as to which aiding and abetting instruction should apply: the one proposed by Rosemond or the one actually given by the trial court (instructions which were consistent with Tenth Circuit Court of Appeals precedent).


On March 5, 2014, the Court vacated the judgment by the Tenth Circuit upholding Rosemond’s conviction. The court said that although it disagreed with Rosemond’s proposed instruction, the trial judge erred in his instructions to the jury.


The court held that a defendant is criminally liable under the aiding and abetting statute only if he “(1) takes an affirmative act in furtherance of the underlying offense (2) with the intent to facilitate that offense’s commission.”


The court noted that § 924(c) has two elements: a drug deal or a violent crime and the use or carrying a firearm in connection that crime. The court found that the trial judge’s instruction was correct that the jury could convict if it found only the drug element and not the gun element. Such an instruction, the court said, is rooted in common law principles that a person is guilty of aiding and abetting when he facilitates “any element” of a criminal offense, even if he did not facilitate all elements.


Having said that, the court added that aiding and abetting also “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.” This requirement is satisfied when “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.”


And therein lies the flaw in the trial judge’s instructions. His instructions did not require that Rosemond have “advance knowledge” that one of his confederates would be carrying a gun. The judge’s instructions simply imputed such knowledge by Rosemond’s presence and participation in the drug deal. The Supreme Court put it this way: “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.”


That holding is significant to all “aiding and abetting” cases under § 924(c). But with respect to Rosemond, the Supreme Court’s remand order instructed the Tenth Circuit to determine (1) whether Rosemond properly objected to the judge’s instructions; and, if so, (2) whether any error resulting from the instructions were harmless.


In our opinion, if the Tenth Circuit determines Rosemond made a proper objection, then it must find “harm” in the judge instructions because the jury verdict form was “general.” It did not reveal whether the jury found Rosemond guilty of using the gun himself or whether he had just aided and abetted a confederate in its use. Thus, it would be difficult, if not impossible, to determine any “harm” the judge’s instructions may have had on the jury’s general verdict.