Jay Shapiro on Rosemond v. United States: Supreme Court Addresses Jury Instructions in Aiding and Abetting Prosecutions for the Use of a Weapon in Connection with a Drug Trafficking Crime

Jay Shapiro on Rosemond v. United States: Supreme Court Addresses Jury Instructions in Aiding and Abetting Prosecutions for the Use of a Weapon in Connection with a Drug Trafficking Crime

While the Supreme Court often grants certiorari in cases where there are complex and novel issues, many of its decisions are based upon its interpretation of important but basic concepts. Rosemond v. United States, [enhanced version available to lexis.com subscribers], decided by the Court on March 5, 2014, is a case that falls in that category. The basic issues that the Court addressed, jury instructions relating to aiding and abetting, could have significant impact on future practice in federal criminal prosecutions because of the common nature of the crime underlying this appeal.

Rosemond concerns a federal narcotics and weapons related prosecution in the United States District Court in Utah. Rosemond and two others were participants in a marijuana sale that went awry. As they were in the midst of selling the marijuana, one of the prospective buyers attempted to steal the contraband. Rosemond and his accomplice, Joseph, chased after the buyer and one of them fired multiple shots from a handgun. The police had been called to the area as a result of the gunshots, and Rosemond, Joseph and their intermediary was stopped. Because the others, including the purported purchasers, had agreed to cooperate, only Rosemond was prosecuted.

Because the government could not determine whether Rosemond or Joseph had fired the shots, Rosemond was charged violating 18 U.S.C. §924(c) [enhanced version available to lexis.com subscribers] under alternative theories, for using a gun in connection with a drug trafficking crime and for aiding and abetting that offense pursuant to §2 of Title 18 [enhanced version available to lexis.com subscribers]. Consequently, the government had to establish either that Rosemond "during and in relation to any crime of violence or drug trafficking crime[,] . . . use[d] or carrie[d] a firearm," or that he sufficient aided and abetted that offense. The prosecution carries with it a five-year mandatory-minimum sentence, which is increased to seven- and ten-year minimums if the firearm is also brandished or discharged.

Because of the government's charging decision, it did not have to prove that Rosemond actually possessed the weapon and fired the shots. Rosemond also faced conviction if the government established his accessorial culpability. Rosemond requested that the trial court instruct the jury that he could be found guilty of aiding or abetting §924(c) violation only if he "intentionally took some action to facilitate or encourage the use of the firearm." The trial court instead instructed the jury Rosemond could be found guilty if the government established beyond a reasonable doubt that "(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."

Relying on this instruction, the government argued to the jury in summation that it could find Rosemond guilty if he had not "fired the gun," because Rosemond "certainly knew [of] and actively participated in" the drug transaction. In support of this theory, the prosecution argued that it did not make sense that Rosemond could "be present and active at a drug deal when shots are fired and not know" his accomplice was "using a gun." Rosemond was convicted and because only a general verdict form was used the jury did not state upon which theory the verdict was based.

Jay Shapiro is a partner in the New York office of White and Williams LLP. Jay has more than 30 years experience concentrating his practice in litigation matters. He began his legal career as a prosecutor in the Bronx County District Attorney's Office (1980-1988) and later joined the King's County District Attorney's Office (1990-2002) where he became the Deputy District Attorney in charge of the Rackets Division before going into private practice. Mr. Shapiro has tried more than thirty-five cases in state and federal court. In private practice, he has handled litigation involving insurance fraud, white collar crime and Lanham Act (trademark) violations.

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