## Facts

- Justus C. Rosemond joined two accomplices in a marijuana sale in a Utah park.
- During the transaction, a buyer grabbed the marijuana and ran without paying.
- Someone in Rosemond’s group fired shots at the fleeing buyer; the evidence did not clearly identify the shooter.
- The government charged Rosemond with violating 18 U.S.C. § 924(c) (use or carrying of a firearm during a drug-trafficking crime), including under an aiding-and-abetting theory via 18 U.S.C. § 2.
- The trial court instructed the jury that aiding and abetting required (1) knowledge that a cohort used a firearm in the drug-trafficking crime and (2) knowing, active participation in the drug-trafficking crime, without requiring advance knowledge of the gun or intent as to the firearm element.
- The jury convicted Rosemond on the § 924(c) count, and the Tenth Circuit affirmed.

## Issues

1. What mens rea is required to convict a defendant of aiding and abetting a § 924(c) offense under 18 U.S.C. § 2.
2. Whether a defendant must have advance knowledge that a confederate will use or carry a firearm, or whether participation in the predicate crime plus knowledge of firearm use at some point is sufficient.
3. Whether the jury instructions misstated the law by omitting any requirement of advance knowledge of the firearm.

## Decision

- The Supreme Court vacated the judgment and remanded.
- To prove aiding and abetting a § 924(c) violation, the government must show the defendant actively participated in the predicate drug-trafficking (or violent) crime with advance knowledge that a confederate would use or carry a gun during the crime.
- “Advance knowledge” means knowledge acquired in time for the defendant to have a realistic opportunity to withdraw from the crime.
- The trial instructions were erroneous because they allowed conviction without requiring a finding that Rosemond knew ahead of time (or soon enough to withdraw) that a gun would be used or carried.
- The case was remanded for determination whether the instructional error was harmless.

## Legal Principles

- Federal aiding-and-abetting liability under 18 U.S.C. § 2 requires (1) an affirmative act in furtherance of the offense and (2) intent to facilitate the offense’s commission.
- For the act requirement, an accomplice may satisfy § 2 by facilitating any element of the charged offense; with § 924(c), facilitating the predicate drug-trafficking crime can suffice.
- For the intent requirement in § 924(c) cases, the accomplice must intend the commission of the full “armed” crime, which requires advance knowledge that a confederate will use or carry a firearm.
- Knowledge of the firearm obtained only at a point when the defendant lacks a realistic opportunity to quit the criminal venture is generally insufficient to establish intent to aid and abet the § 924(c) offense.

## Conclusion

The Court held that aiding and abetting a § 924(c) offense requires active participation in the predicate crime combined with advance knowledge that a confederate will use or carry a gun, so continued participation reflects intent to facilitate an armed offense; because the jury was not instructed to find such advance knowledge, the conviction was vacated and remanded for harmless-error review.


Rosemond v. United States, 572 U.S. 65 (2014)