On 26 August 2007, Justus Cornelius Rosemond and two accomplices, Vashti Perez and Ronald Joseph, were involved in a drug transaction in a public park located in Tooele, Utah, United States of America. Perez brokered the sale of one pound of marijuana by Rosemond and Joseph, and transported the illegal narcotics across state jurisdiction from Texas. During the transaction the buyers, Cory Painter and Ricardo Gonzalez, met the three sellers in the park. Gonzalez entered the backseat of the vehicle where the transaction was occurring. Though the buyers intended to purchase marijuana, they did not have enough cash for the transaction. Instead, Gonzalez assaulted Rosemond and stole the marijuana. While Gonzalez and Painter fled from the vehicle, an unknown individual discharged a 9mm handgun from the car that Rosemond, Prez and Joseph were in. Approximately nine to ten shots were fired in the direction of Gonzalez and Painter. A state trooper from the Utah Highway Patrol, responding to 9-1-1 calls from bystanders who witnessed the shooting, stopped the vehicle carrying Rosemond, Perez, and Joseph. The vehicle matched the description provided on the 9-1-1 calls by witnesses. After gaining consent to search the car from Perez, the driver, no weapon or any other evidence providing probable cause was found. The state trooper terminated the search after finding no evidence and allowed the vehicle to leave the scene. Joseph later testified during the jury trial that the 9mm handgun was hidden under the back seat of the vehicle where Rosemond was sitting.
Several days after the incident, Perez testified during law enforcement questioning that Rosemond was the individual who discharged the firearm during the drug transaction. Witnesses who were in the vicinity of the park during the shooting could not positively identify which individual fired the gun, only identifying that it came from the vehicle. Joseph testified under oath at trial that Rosemond was the shooter. Perez and Joseph were not prosecuted for their involvement in the crime due to an immunity agreement with prosecutors in exchange for testimony during the trial. Similarly, Gonzalez and Painter were also granted immunity from prosecution in exchange for their testimony. Rosemond was indicted on charges of possession of marijuana with intent to distribute, carrying a firearm during an in relation to drug trafficking, possession of ammunition by a convicted felon, and possession of ammunition by an unlawful alien.
Rosemond was found guilty on all four counts and sentenced to 14 years' imprisonment.
United States District Court for the District of Utah
During the deliberations the district court judge instructed jurors that the prosecution needed to prove beyond a reasonable doubt that Rosemond was either the principal shooter, or alternatively, aided and abetted the principal’s discharge of the firearm. Jurors found Rosemond guilty on all four counts with which he was charged. On the verdict sheet the jurors we not required to inform the court on which of the prosecution’s theories they convicted Rosemond on count 2, discharge of a firearm in relation to a drug offense. It is unclear on which theory the jury convicted Rosemond.
United States Court of Appeals for the Tenth Circuit
The defendant appealed his conviction on count 2, using and discharging a firearm during a federal drug-trafficking offense, to the U.S. Court of Appeals, 10th Circuit. Rosemond contended that the district judge erred in his jury instructions on the definition on aiding and abetting when addressing the necessary standard to convict. He further argued that there was insufficient evidence in the court of first instance to issue the aiding and abetting instructions. There was no challenge to the district judge’s instructions regarding the prosecution’s theory that he discharged the firearm himself.
The appellate court ruled that the district judge did not err in issuing his instructions, citing the previous 10th Circuit precedent of United States v. Bowen, 527 F.3d 1065, 1072 (10th Cir. 2008). It reasoned that, applying the standard needed to convict under aiding and abetting established in United States v. Bowen, the defendant had to know that a firearm was used in the underlying crime and knowingly and actively participated in the underlying crime (that is, drug trafficking in the instant case). The appellate court determined there was abundant evidence presented during trial to support the guilty verdict. The conviction was upheld..
Supreme Court of the United States
The U.S. Supreme Court held that the burden of proof on the prosecution for proving that Rosemond aided and abetted the commission of the offence was that he was an active participant in the commission of the drug trafficking crime and was aware in advance that one of his accomplices was armed. The U.S. Supreme Court rejected the precedent set in the 10th Circuit in United States v. Bowen and embraced standards used in other federal appellate circuits that require a person to actively participate in a criminal venture knowing all circumstances, such as the presence of firearms. See Pereira v. United States, 347 U. S. 1, 12 and Nye & Nissen, 336 U. S. 613, at 619.
The juror instructions in the court of first instance required the jury to consider whether Rosemond “knew his accomplices used a firearm”. The Supreme Court ruled that by issuing this instruction the jury was not required to determine when Rosemond obtained the mens rea, or knowledge, of the firearm. In a 7-2 decision, the U.S. Supreme Court sided with Rosemond and remanded the case back to the Tenth Circuit to determine whether the error in juror instructions was harmless and whether the objection to the instructions was properly addressed in the court of first instance.
United States Court of Appeals for the Tenth Circuit
After the case was remanded back to the U.S. Court of Appeals 10th Circuit, the court affirmed the conviction of Rosemond in the court of first instance. The court held that since the defendant did not object to the instructions to jury during the trial, he was not able to argue that they had resulted in a plain error. The court held that the appellate, Rosemond, had the burden to show that the error in the instructions was obvious and was detrimental to his rights. The court determined he did not meet this burden during the appeals process.
Rosemond was an unlawful alien residing in the US state of Texas. Further information about his country of origin was not available at the time of writing.
Possession of controlled substance with intent to distribute
21 U.S.C. § 841, 18 U.S.C. § 2
Rosemond was charged with possession of a controlled substance with intent to distribute under 21 U.S.C. § 841(a)(1) in relation to the one pound of marijuana Rosemond brought to the park on 26 August 2007. In the alternative, he was charged with aiding or abetting the commission of such an offence under 18 U.S.C. § 2.
Possession or use of a firearm in relation to a crime of violence or drug trafficking crime
18 U.S.C. § 924, 18 U.S.C. § 2
Rosemond was charged with discharge of a firearm in relation to a drug offense under 18 U.S.C. § 942(c). In the alternative, he was charged with aiding or abetting the commission of such an offence under 18 U.S.C. § 2.
Possession of ammunition by a convicted felon
18 U.S.C. § 922(g)(1)
Possession of ammunition by an unlawful alien
18 U.S.C. § 922(g)(5)(A)
Supreme Court of the United States
United States v. Bowen, 527 F.3d 1065, 1072 (10th Cir. 2008).
Pereira v. United States, 347 U. S. 1, 12 (1954)
United States v. Rosemond, 695 F.3d 1151, 1152 (10th Cir. 2012)
Rosemond v. United States, 134 S. Ct 1240 (2014)
Nye & Nissen v. United States, 168 F.2d 846 (9th Cir. 1948)
The facts of the case in themselves are not especially noteworthy. It was a relatively small drug transaction that turned into a shooting. What is noteworthy, however, is the legal proceedings and the issue of determining the level of mens rea needed to convict on the principle of aiding and abetting.
United States v. Rosemond focused on the important question of what mental knowledge an individual must have in order to be convicted of aiding and abetting a violent crime. The Supreme Court of the United States held that the offence in 18 U.SC. § 924, required proof that the defendant (1) actively participated in the underlying crime; with (2) advance knowledge that an accomplice would use or carry a gun during the crime’s commission. Both elements had to be proven beyond reasonable doubt.