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SUPREME COURT OF THE UNITED STATES
_________________
No. 12–895
_________________
JUSTUS C. ROSEMOND, PETITIONER v.UNITED
STATES
on writ of certiorari to the united states
court of appeals for the tenth circuit
[March 5, 2014]
Justice Kagan
delivered the opinion of the Court.[
1]*
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.
I
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 andfired 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 their
quarry,a police officer, responding to a dispatcher’s alert,
pulled their car over. This federal prosecution of Rosemond
followed.[
2]
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 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 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 consec-utive 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.[
3] The Court of
Appeals acknowledged that some other Circuits agreed with Rosemond
thata 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).[
4] 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] 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. ___ (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.
II
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 –19 (1980); United States
v. Peoni, 100 F. 2d 401, 402 (CA2 1938)(L. Hand, J.) (“The
substance of [§2’s] formula goes backa 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).
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 (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 facili-tating the offense’s
commission. See 2 W. LaFave, Substantive Criminal Law §13.2,
p. 337 (2003) (hereinafter LaFave) (an accomplice is liable as a
principal when he gives “assistance or encouragement
. . . with the intent thereby to promote or facilitate
commission of the crime”); Hicks v. United States, 150
U. S. 442, 449 (1893) (an accomplice is liable when his acts
of assistance are done “with the intention of encouraging and
abetting” the crime).
The questions that the
parties dispute, and we here address, concern how those two
requirements—affirmative act and intent—apply in a
prosecution for aiding and abetting a §924(c) offense. Those
questions arise from the compound nature of that provision. Recall
that §924(c) forbids “us[ing] or carr[ying] a
firearm” when engaged in a “crime of violence or drug
trafficking crime.” See supra, at 2. The prosecutor must show
the use or carriage of a gun; so too he must prove the commission
of a predicate (violent or drug trafficking) offense. See Smith v.
United States, 508 U. S. 223, 228 (1993) . For purposes of
ascertaining aiding and abetting liability, we therefore must
consider: When does a person act to further this double-barreled
crime? And when does he intend to facilitate its commission? We
address each issue in turn.
A
Consider first
Rosemond’s account of his conduct (divorced from any issues
of intent). Rosemond actively par-ticipated in a drug transaction,
accompanying two others to a site where money was to be exchanged
for a poundof marijuana. But as he tells it, he took no actionwith
respect to any firearm. He did not buy or borrow a gun to
facilitate the narcotics deal; he did not carry a gun to the scene;
he did not use a gun during the subsequent events constituting this
criminal misadventure. His acts thus advanced one part (the drug
part) of a two-part incident—or to speak a bit more
technically, one element (thedrug element) of a two-element crime.
Is that enough to satisfy the conduct requirement of this aiding
and abetting charge, or must Rosemond, as he claims, have taken
some act to assist the commission of the other (firearm) component
of §924(c)?
The common law imposed
aiding and abetting liability on a person (possessing the requisite
intent) who facili-tated any part—even though not every
part—of a criminal venture. As a leading treatise, published
around the time of §2’s enactment, put the point:
Accomplice liability attached upon proof of “[a]ny
participation in a general felonious plan” carried out by
confederates. 1 F. Wharton, Criminal Law §251, p. 322 (11th
ed. 1912) (hereinafter Wharton) (emphasis added). Or in the words
of another standard reference: If a person was “present
abetting while any act necessary to constitute the offense [was]
being performed through another,” he could be charged as a
principal—even “though [that act was] not the whole
thing necessary.” 1 J. Bishop, Commentaries on the Criminal
Law §649, p. 392 (7th ed. 1882) (emphasis added). And so
“[w]here several acts constitute[d] together one crime, if
each [was] separately performed by a different individual[,]
. . . all [were] principals as to the whole.” Id.,
§650, at 392.[
5] Indeed,
as yet a third treatise underscored, a person’s involvement
in the crime could be not merely partial but minimal too:
“The quantity [of assistance was] immaterial,” so long
as the accomplice did “something” to aid the crime. R.
Desty, A Compendium of American Criminal Law §37a, p. 106
(1882) (emphasis added). After all, the common law maintained,
every little bit helps—and a contribution to some part of a
crime aids the whole.
That principle
continues to govern aiding and abetting law under §2: As
almost every court of appeals has held, “[a] defendant can be
convicted as an aider and abettor without proof that he
participated in each and every element of the offense.”
United States v. Sigalow, 812 F. 2d 783, 785 (CA2
1987).[
6] In proscribing aiding
and abetting, Congress used language that “comprehends all
assistance rendered by words, acts, encouragement, support, or
presence,” Reves v. Ernst & Young, 507 U. S. 170,
178 (1993) —even if that aid relates to only one (or some) of
a crime’s phases or elements. So, for example, in upholding
convictions for abetting a tax evasion scheme, this Court found
“irrelevant” the defendants’
“non-participation” in filing a false return; we
thought they had amply facilitated the illegal scheme by helping a
confederate conceal his assets. United States v. Johnson, 319
U. S. 503, 515, 518 (1943) . “[A]ll who shared in [the
overall crime’s] execution,” we explained, “have
equal responsibility before the law, whatever may have been [their]
different roles.” Id., at 515. And similarly, we approved a
conviction for abetting mail fraud even though the defendant had
played no part in mailing the fraudulent documents; it was enough
to sat-isfy the law’s conduct requirement that he had in
other ways aided the deception. See Pereira v. United States, 347
U. S. 1 –11 (1954). The division of labor between two
(or more) confederates thus has no significance: A strategy of
“you take that element, I’ll take this one” would
free neither party from liability.[
7]
Under that established
approach, Rosemond’s participation in the drug deal here
satisfies the affirmative-act requirement for aiding and abetting a
§924(c) violation. As we have previously described, the
commission of a drug trafficking (or violent) crime is—no
less than the use of a firearm—an “essential conduct
element of the §924(c) offense.” United States v.
Rodriguez-Moreno, 526 U. S. 275, 280 (1999) ; see supra, at 6.
In enacting the statute, “Congress proscribed both the use of
the firearm and the commission of acts that constitute” a
drug trafficking crime. Rodriguez-Moreno, 526 U. S, at 281.
Rosemond therefore could assist in §924(c)’s violation
by facilitating either the drug transaction or the firearm use (or
of course both). In helping to bring about one part of the offense
(whether trafficking drugs or using a gun), he necessarily helped
to complete the whole. And that ends the analysis as to his
conduct. It is inconsequential, as courts applying both the common
law and §2 have held, that his acts did not advance each
element of the offense; all that matters is that they facilitated
one component.
Rosemond argues, to the
contrary, that the requisite act here “must be directed at
the use of the firearm,” because that element is
§924(c)’s most essential feature. Brief for Petitioner
33 (arguing that “it is the firearm crime” he was
really charged with aiding and abetting, “not the drug
trafficking crime”). But Rosemond can provide no author-ity
for demanding that an affirmative act go toward an element
considered peculiarly significant; rather, as just noted, courts
have never thought relevant the importance of the aid rendered. See
supra, at 7–8. And in any event, we reject Rosemond’s
premise that §924(c) is somehow more about using guns than
selling narcotics. It is true enough, as Rosemond says in support
of that theory, that §924(c) “establishes a separate,
freestanding offense that is ‘distinct from the underlying
[drug trafficking crime].’ ” Brief for Petitioner
32 (quoting Simpson v. United States, 435 U. S. 6, 10 (1978)
). But it is just as true that §924(c) establishes a
freestanding offense distinct from any that might apply just to
using a gun—say, for discharging a firearm in a public park.
That is because §924(c) is, to coin a term, a combination
crime. It punishes the temporal and relational conjunction of two
separate acts, on the ground that together they pose an extreme
risk of harm. See Muscarello v. United States, 524 U. S. 125,
132 (1998) (noting that §924(c)’s “basic
purpose” was “to combat the dangerous combination of
drugs and guns”). And so, an act relating to drugs, just as
much as an act relating to guns, facilitates a §924(c)
violation.
Rosemond’s
related argument that our approach would conflate two distinct
offenses—allowing a conviction for abetting a §924(c)
violation whenever the prosecution shows that the defendant abetted
the underlying drug trafficking crime—fares no better. See
Brief for Petitioner 38. That is because, as we will describe, an
aiding and abetting conviction requires not just an act
facilitating one or another element, but also a state of mind
extending to the entire crime. See infra, at 11. And under that
rule, a defendant may be convicted of abetting a §924(c)
violation only if his intent reaches beyond a simple drug sale, to
an armed one. Aiding and abetting law’s intent
component—to which we now turn—thus preserves the
distinction between assisting the predicate drug trafficking crime
and assisting the broader §924(c) offense.
B
Begin with (or return
to) some basics about aiding and abetting law’s intent
requirement, which no party here disputes. As previously explained,
a person aids and abets a crime when (in addition to taking the
requisite act) he intends to facilitate that offense’s
commission. See supra, at 5–6. An intent to advance some
different or lesser offense is not, or at least not usually,
sufficient: Instead, the intent must go to the specific and entire
crime charged—so here, to the full scope (predicate crime
plus gun use) of §924(c). See, e.g., 2 LaFave §13.2(c);
W. Clark & W. Marshall, Law of Crimes, §187, pp.
251–253 (2d ed. 1905); ALI, Model Penal Code §2.06
Comment, p. 306 (1985).[
8] And
the canonical formulation of that needed state of mind—later
appropriated by this Court and oft-quoted in both parties’
briefs—is Judge Learned Hand’s: To aid and abet a
crime, a defendant must not just “in some sort associate
himself with the venture,” but also “participate in it
as in something that he wishes to bring about” and
“seek by his action to make it succeed.” Nye &
Nissen v. United States, 336 U. S. 613, 619 (1949) (quoting Peoni,
100 F. 2d, at 402; see Brief for Petitioner 20, 28, 41; Brief
for United States 14, 51.
We have previously
found that intent requirement satisfied when a person actively
participates in a criminal venture with full knowledge of the
circumstances constituting the charged offense. In Pereira, the
mail fraud case discussed above, we found the requisite intent for
aiding and abetting because the defendant took part in a fraud
“know[ing]” that his confederate would take care of the
mailing. 347 U. S., at 12; see supra, at 8. Likewise, in Bozza
v. United States, 330 U. S. 160, 165 (1947) , we up-held a
conviction for aiding and abetting the evasion of liquor taxes
because the defendant helped operate a clandestine distillery
“know[ing]” the business was set up “to violate
Government revenue laws.” And several Courts of Appeals have
similarly held—addressing a fact pattern much like this
one—that the unarmed driver of a getaway car had the
requisite intent to aid and abet armed bank robbery if he
“knew” that his confederates would use weapons in
carrying out the crime. See, e.g., United States v. Akiti, 701
F. 3d 883, 887 (CA8 2012); United States v. Easter, 66 F. 3d
1018, 1024 (CA9 1995). So for purposes of aiding and abetting law,
a person who actively participates in a criminal scheme knowing its
extent and character intends that scheme’s
commission.[
9]
The same principle
holds here: 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. In such a
case, the accomplice has decided to join in the criminal venture,
and share in its benefits, with full awareness of its
scope—that the plan calls not just for a drug sale, but for
an armed one. In so doing, he has chosen (like the abettors in
Pereira and Bozza or the driver in an armed robbery) to align
himself with the illegal scheme in its entirety—including its
use of a firearm. And he has determined (again like those other
abettors) to do what he can to “make [that scheme]
succeed.” Nye & Nissen, 336 U. S., at 619. He thus
becomes responsible, in the typical way of aiders and abettors, for
the conduct of others. He may not have brought the gun to the drug
deal himself, but because he took part in that deal knowing a
confederate would do so, he intended the commission of a
§924(c) offense—i.e., an armed drug sale.
For all that to be
true, though, the §924(c) defendant’s knowledge of a
firearm must be advance knowledge—or otherwise said,
knowledge that enables him to make the relevant legal (and indeed,
moral) choice. When an accomplice knows beforehand of a
confederate’s design to carry a gun, he can attempt to alter
that plan or, if unsuccessful, withdraw from the enterprise; it is
deciding instead to go ahead with his role in the venture that
shows his intent to aid an armed offense. But when an accomplice
knows nothing of a gun until it appears at the scene, he may
already have completed his acts of assistance; or even if not, he
may at that late point have no realistic opportunity to quit the
crime. And when that is so, the defendant has not shown the
requisite intent to assist a crime involving a gun. As even the
Government concedes, an unarmed accomplice cannot aid and abet a
§924(c) violation unless he has “foreknowledge that his
confederate will commit the offense with a firearm.” Brief
for United States 38; see also infra, at 15–17. For the
reasons just given, we think that means knowledge at a time the
accomplice can do something with it—most notably, opt to walk
away.[
10]
Both parties here find
something to dislike in our view of this issue. Rosemond argues
that a participant in a drug deal intends to assist a §924(c)
violation only if he affirmatively desires one of his confederates
to use a gun. See Reply Brief 8–11. The jury, Rosemond
concedes, could infer that state of mind from the defendant’s
advance knowledge that the plan included a firearm. See Tr. of Oral
Arg. 5. But according to Rosemond, the instructions must also
permit the jury to draw the opposite conclusion—that although
the defendant participated in a drugdeal knowing a gun would be
involved, he did not spe-cifically want its carriage or use. That
higher standard, Rosemond claims, is necessary to avoid subjecting
persons of different culpability to the same punishment. Rosemond
offers as an example an unarmed driver assisting in the heist of a
store: If that person spent the drive “trying to persuade
[his confederate] to leave [the] gun behind,” then he should
be convicted of abetting shoplifting, but not armed robbery. Reply
Brief 9.
We think not. What
matters for purposes of gauging intent, and so what jury
instructions should convey, is that the defendant has chosen, with
full knowledge, to participate in the illegal scheme—not
that, if all had been left to him, he would have planned the
identical crime. Consider a variant of Rosemond’s example:
The driver of a getaway car wants to help rob a convenience store
(and argues passionately for that plan), but eventually accedes
when his confederates decide instead to hold up a national bank.
Whatever his original misgivings, he has the requisite intent to
aid and abet bank robbery; after all, he put aside those doubts and
knowingly took part in that more dangerous crime. The same is true
of an accomplice who knowingly joins in an armed drug
transaction—regardless whether he was formerly indifferent or
even resistant to using firearms. The law does not, nor should it,
care whether he participates with a happy heart or a sense of
foreboding. Either way, he has the same culpability, because either
way he has knowingly elected to aid in the commission of a
peculiarly risky form of offense.
A final, metaphorical
way of making the point: By virtue of §924(c), using a firearm
at a drug deal ups the ante. A would-be accomplice might decide to
play at those perilous stakes. Or he might grasp that the better
course is to fold his hand. What he should not expect is the
capacity to hedge his bets, joining in a dangerous criminal scheme
but evading its penalties by leaving use of the gun to someone
else. Aiding and abetting law prevents that outcome, so long as the
player knew the heightened stakes when he decided to stay in the
game.
The Government, for its
part, thinks we take too strict a view of when a defendant charged
with abetting a §924(c) violation must acquire that knowledge.
As noted above, the Government recognizes that the accused
accomplice must have “foreknowledge” of a gun’s
presence. Brief for United States 38; see supra, at 13. But the
Government views that standard as met whenever the accomplice,
having learned of the firearm, continues any act of assisting the
drug transaction. See Brief for United States 48. According to the
Government, the jury should convict such a defendant even if he
became aware of the gun only after he realistically could have
opted out of the crime.
But that approach, we
think, would diminish too far the requirement that a defendant in a
§924(c) prosecution must intend to further an armed drug deal.
Assume,for example, that an accomplice agrees to participate in a
drug sale on the express condition that no one brings a gun to the
place of exchange. But just as the parties are making the trade,
the accomplice notices that one of his confederates has a (poorly)
concealed firearm in his jacket. The Government would convict the
accomplice of aiding and abetting a §924(c) offense if he
assists in completing the deal without incident, rather than
running away or otherwise aborting the sale. See Tr. of Oral Arg.
40. But behaving as the Government suggests might increase the risk
of gun violence—to the accomplice himself, other
participants, or bystanders; and conversely, finishing the sale
might be the best or only way to avoid that danger. In such a
circumstance, a jury is entitled to find that the defendant
intended only a drug sale—that he never intended to
facilitate, and so does not bear responsibility for, a drug deal
carried out with a gun. A defendant manifests that greater intent,
and incurs the greater liability of §924(c), when he chooses
to participate in a drug transaction knowing it will involve a
firearm; but he makes no such choice when that knowledge comes too
late for him to be reasonably able to act upon it.[
11]
III
Under these
principles, the District Court erred in instructing the jury,
because it did not explain that Rosemond needed advance knowledge
of a firearm’s presence. Recall that the court stated that
Rosemond was guilty of aiding and abetting if “(1) [he] knew
his cohort used a firearm in the drug trafficking crime, and (2)
[he] knowingly and actively participated in the drug trafficking
crime.” App. 196. We agree with that instruction’s
second half: As we have explained, active participation in a drug
sale is sufficient for §924(c) liability (even if the conduct
does not extend to the firearm), so long as the defendant had prior
knowledge of the gun’s involvement. See supra, at 9,
11–13. The problem with the court’s instruction came in
its description of that knowledge requirement. 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. So, for example, the
jury could have convicted even if Rosemond first learned of the gun
when it was fired and he took no further action to advance the
crime. For that reason, the Government itself describes the
instruction’s first half as “potentially
misleading,” candidly explaining that “it would have
been clearer to say” that Rosemond had to know that his
confederate “ ‘ would use’ [a firearm]
or something . . . that makes absolutely clear that you
[need] foreknowledge.” Tr. of Oral Arg. 48–49. We agree
with that view, and then some: The court’s statement failed
to convey that Rosemond had to have advance knowledge, of the kind
we have described, that a confederate would be armed. See supra, at
13,15–16.
The Government contends
that this problematic instruction looks more accurate when viewed
in context. In particular, the Government points to the District
Court’s prefatory “umbrella instruction” that to
aid or abet a crime, a defendant must “willfully and
knowingly seek[ ] by some act to help make the crime
succeed.” App. 196; Brief for United States 49. That
statement, the Government rightly notes, “mirrors”
Judge Hand’s classic formulation. Tr. of Oral Arg. 33; see
supra, at 11. But the statement is also pitched at a high level of
generality. Immediately afterward, the District Court provided the
jury with the two-pronged test noted above—thus indicating
how the broad principle should apply to the specific charge of
abetting a §924(c) offense. We therefore do not see how the
“umbrella” statement could have cured the court’s
error. Indeed, a different contextual feature of the case would
only have amplified that mistake. As earlier described, the
prosecutor asserted in closing argument that the court’s test
was easily satisfied because “a person cannot be present and
active at a drug deal when shots are fired and not know their
cohort is using a gun.” App. 158; see supra, at 3–4.
The prosecutor thus invited the jury to convict Rosemond even if he
first learned of the gun asit was discharged, and no matter what he
did afterward. Once again, then, the message to the jury was that
it need not find advance knowledge—exactly what we (and for
that matter the Government) have said is required.
We send this case back
to the Tenth Circuit to consider the appropriate consequence, if
any, of the District Court’s error. The Government makes two
arguments relevant to that inquiry. First, it contends that
Rosemond failed to object specifically to the part of the trial
court’s instructions we have found wanting; thus, the
Government asserts, a plain-error standard should apply to his
claim. See Fed. Rule Crim. Proc. 52(b); Johnson v. United States,
520 U. S. 461 –467 (1997). Second, the Government argues
that any error in the court’s aiding and abetting instruction
was harmless, because the jury must have found (based on another
part of its verdict, not discussed here) that Rosemond himself
fired the gun. Those claims were not raised or addressed below, and
we see no special reason to decide them in the first instance. See
Travelers Casualty & Surety Co. of America v. Pacific Gas &
Elec. Co., 549 U. S. 443, 455 (2007) . Accordingly, we vacate
the judgment below and remand the case for further proceedings
consistent with this opinion.
It is so ordered.