UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. JUSTUS CORNELIUS ROSEMOND, Defendant - Appellant. No. 11-4046 (D.C. No. 2:07-CR-00886-DAK-1) (D. Utah)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before KELLY , BALDOCK , and EBEL , Circuit Judges.

________________ _________________ In this direct criminal appeal, which is before us again following the Supreme Court’s remand, Defendant-App ellant Justus Rosemond ch allenges his conviction for using, or aiding and abetting the use of, a firearm during a drug-tr afficking offense. The Supreme Court determined that the dist rict court erred in instructing jurors on the Government’s aiding-and-abetting theory . Because Rosemond did not object at trial to the erroneous part of the instruction, however, he must establish plain error warranting relief. He has not made that showing. Therefore, having jurisdiction under 28 U.S.C. § 1291, we AF FIRM his conviction.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judica ta, and collateral estoppel. It may be cited, however, for its persuasive value consiste nt with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### June 25, 2015
Elisabeth A. Shumaker Clerk of Court2 BACKGROUND I. Relevant facts and procedure Three people in a car—driver Vashti Pe rez, Defendant Rosemond, and Ronald Joseph—drove to a park to sell one pound of marijuana to two men. Rosemond v. United States, 134 S. Ct. 1240, 1243 (2014). During the transaction, which occurred in the car, one of the would-be purchasers grabbed the marijuana and ran from the car without paying. Id. As bot h purchasers fled, someone in the car fired several shots at them. Id. As a result of this inci dent, the United States char ged Rosemond with four offenses, including using and carrying a firearm during a dr ug-trafficking offense in violation of 18 U.S.C. § 924(c)(1)(A). 1 Because it was unclear who actually fired the shots during the failed drug sale, the Unite d States tried Rosemond under alternate

1 Section 924(c)(1)(A) provides in pertinent part the following: Except to the extent that a great er minimum sentence is otherwise provided by this subsection or by a ny other provision of law, any person who, during or in relation to any cr ime of violence or drug trafficking crime . . . for which the person may be prosecuted in a court of the United States, uses or carries a firear m, or who, in furtherance of any such crime, possesses a firearm, shall, in a ddition to the punishment provided for such crime of viol ence or drug trafficking crime— (i) be sentenced to a te rm of imprisonment of not less than 5 years; (ii) if the fire arm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and (iii) if the firearm is di scharged, be sentenced to a term of imprisonment of not less than 10 years.3 theories, alleging that Rosem ond was either the actual s hooter or that he aided and abetted the actual shooter’s use of the fire arm during the drug-trafficking offense. Rosemond, 134 S. Ct. at 1243-44. At trial, th e district court instructed jurors on both theories and the jury found Rosemond guilty of the § 924(c)(1) offense. Rosemond, 134 S. Ct. at 1243-44. But the verdict form did not require jurors to indicate on which theory they based Rosemond’s convi ction. Rosemond, 134 S. Ct. at 1244. 2
II. The trial court’s aiding-and-abetting inst ruction was erroneous “A conviction based on a general verdict is subject to challenge if the jury was instructed on alternat ive theories of guilt and may have relied on an invalid one.” Hedgpeth v. Pulido, 555 U.S. 57, 58 (2008) (per curiam). In this case, the trial court instructed jurors that , to convict Rosemond of aiding and abetting the actual shooter’s

2 The United States charged Rosemond with four counts: 1) possessing marijuana with the intent to distribute it; 2) using a firearm (a nine millimeter handgun) during the drug-trafficking offense charged in Co unt 1; 3) being a previously convicted felon knowingly in possession of ammuniti on (nine millimeter Winchester-Western shell casings); and 4) bei ng an alien unlawfully in the United States knowingly in possession of ammunition (nine millimeter Winchester-Western shell casings). The United States alternatively charged Rosem ond with aiding and abetting the first two counts—possessing marijuana w ith the intent to distribut e it and using a firearm during the drug-trafficking offense. The Government did not charge Rosemond with aiding and abetting either the third or fourth (ammunition) counts. The jury convicted Rosemond of all four charged offenses. The verdict form did not require jurors to indicate whether they found Ro semond guilty of comm itting the substantive drug or firearm offense (Counts 1 and 2) or of aiding and abetting those offenses. As to Count 2, the § 924(c)(1)(A) offense, the jury further found that Rosemond not only used the gun (or aided and abetted the use of the gun), but that he also brandished and discharged it (or aided and abetted the br andishing and discharge of the firearm), increasing his mandatory minimum prison se ntence for the § 924(c)(1) offense from five to ten years. See 18 U.S.C. § 92 4(c)(1)(A). That sentence had to run consecutively to Rosemond’s sent ence for the other three offe nses of conviction. Id. § 924(c)(1)(D)(ii).4 use of the firearm, jurors had to “find that: (1) [Rosemond] knew his cohort used a firearm in the drug trafficking crime, and (2) [Rosemond] knowingly and actively participated in the drug trafficking crime. ” (R. v.1 at 73-74.) Rosemond challenged the second part of that instruction, arguing that the court should in struct jurors that they had to find, not that Rosemond know ingly and actively participated in the drug trafficking offense, but instead that he “intentionally took some action to facilitate or encourage the use of the fi rearm.” (Id. at 21.) Th e Supreme Court rejected Rosemond’s argument, concl uding that, because a defendant need only aid or abet part of the underlying offe nse, Rosemond “could assist in § 924(c)’s violation by facilitating either the drug transaction or the firearm use (or of course both).” Rosemond, 134 S. Ct. at 1247. The problem with the aiding-and-abetting instruction, the Supreme Court held, was with the first part of the instruction, to which Rosemond di d not object, directing jurors to consider whether Rosemond “kne w his cohort used a firearm in the drug trafficking crime.” Id. at 1251. According to the Court, to convict Rosemond under § 924(c)(1)(A), the jury ha d to find that Rosemond had “advance knowledge of a firearm’s presence”; that is , he had to have the intent to facilitate an armed drugtrafficking offense. 3 Id. at 1249. But the first part of the instruction th at the district

3 The Court further explained that even w ithout direct proof th at the defendant had knowledge of the firearm before the pred icate offense occurred, “if a defendant continues to participate in a crime after a gun was displaye d or used by a confederate, the jury can permissibly infer from his failure to object or withdraw that he had such [advance] knowledge.” Rosem ond, 134 S. Ct. at 1250 n.9. On the other hand, if the jury finds that the defendant did not disc over that his accomplice had a gun until the5 court gave at Rosemond’s trial—requiring jurors to find that Rosemond “knew his cohort used a firearm in the drug traffickin g crime”—did not make clear that jurors had to find that Rosemond had advance knowledge of his accomplice’s gun and chose to participate in the cr ime anyway. Id. at 1251-52. Th at part of the instruction, therefore, was wrong. Id. Nonetheless, because both Ro semond and the Government requested that the district court give this part of the instructi on, the Supreme Court remanded the case to this court to determine “the appropriate conse quence, if any, of the District Court’s er ror.” Id. at 1252. DISCUSSION Because Rosemond did not object at trial to the language in the first part of the aiding-and-abetting instruction, the part of the instruction that the Supreme Court found objectionable, we review for plain error. 4 In order to obtain relief under plainerror review, Rosemond “must demonstrate: (1 ) an error, (2) that is plain, which

criminal activity was ongoing and it was “too late for [the defendant] to be reasonably able to act upon” the information, that evidence is in sufficient to convict the defendant of aiding and abetting his accomp lice’s use of a firearm. Id. at 1251.

4 Rosemond argues that the Government fo rfeited plain-error review by not calling for it on direct appeal or in opposition to Rosemond’s certiorari petition. But in the district court, on direct a ppeal, and in his certiorari petition, Rosemond challenged only the second part of the inst ruction, the part to which he objected at trial. There was, then, no reason for the Go vernment to call for plain-e rror review at that time. Rosemond did not clearly challenge the first part of the instruction—requiring jurors to find that he “knew his cohort used a firearm in the drug tr afficking crime”—until the merits brief he filed w ith the Supreme Court, Rose mond, 2013 WL 4011049, at *12, *14-*15. The Government then called fo r plain-error review in response to that argument. See Rosemond, 2 013 WL 5316701, at *42-51. Thus, the Government did not waive plain-error review.6 means clear or obvious under current law, and (3 ) that affects substa ntial rights. If he satisfies these criteria , this court may exercise discreti on to correct the error if (4) it seriously affects the fairness, integrity, or public reputation of judicial proceedings.” United States v. Powell, 767 F.3d 1026, 10 29 (10th Cir. 2014) (internal quotation marks, alterations omitted). The Government concedes that only the third plain-error inquiry—whether plain error affected Ro semond’s substantial rights—is at issue here. Plain error affects the defendant’s s ubstantial rights if “t here is a reasonable probability that, but for the error claimed, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” United States v. Hale, 762 F.3d 12 14, 1221 (10th Cir. 2014) (internal quotation marks omitted), cert. denied, 135 S. Ct. 1464 (2015). Rosemond has not made th at showing here. In addition to charging Rosemond w ith the § 924(c)(1) offense, the Government also charged him with two co unts of being a restricted person in possession of ammunition. See 18 U.S.C. § 922(g)(1), (5)(A) The Government did not charge Rosemond with aiding and abe tting these ammunition offenses, but only as a principal, and the district court inst ructed jurors accordi ngly. When jurors convicted Rosemond of possess ing the ammunition, they n ecessarily found that he was the actual shooter. The only evidence at trial of ammunition was the spent nine millimeter shell casings found in the parking lot where the shots were fired. There was no evidence that anyone but the shooter possessed the firearm that contained the ammunition. Therefore, in convicting Rosemond of posse ssing the ammunition fired7 from the gun, jurors had to have found beyond a reasonable doubt that Rosemond fired the gun during the botched drug deal. Rosemond’s arguments to the contrary are unavailing. Rosemond asserts that “the expansive definition of ‘possession’ in the jury instructions[] likely allowed Rosemond to be convicted of possessi ng ammunition inside a confederate’s firearm.” 5 (Aplt. Supp. Reply Br. at 25 (empha sis added).) But the instructions required jurors to find that Rosemond “know ingly” possessed the ammunition; that is, that he purposely and voluntarily possesse d it. (R. v.1 at 78, 83.) Furthermore, although the district court instructed juro rs that constructiv e or joint possession would suffice, the court instruct ed jurors that to have cons tructive, rather than actual, possession, jurors still ha d to find that Rosemond ha d the ability to exercise authority, dominion, or subs tantial control over the a mmunition. Thus, based on these possession instructions, the jurors , in finding that Rosemond unlawfully possessed the ammunition in the gun, also necessarily found that Rosemond was the shooter. There was no evidence that anyon e but the shooter po ssessed the firearm that contained the ammunition. Rosemond further contends that a note that the jury sent th e trial court during deliberations established that jurors did not find that Rosemond was the actual shooter, but instead convicted him of aidi ng and abetting the shooter’s use of the firearm. The jury’s note as ked about the verdict form, which directed jurors to

5 Rosemond also argues that the prosecutor’s closing argum ent further supported this expansive definition of “possession.”8 answer question three on that form if jurors found Rosemond guilty of using a firearm in furtherance of a dr ug-trafficking offense. Ques tion three required jurors to specify whether they foun d that Rosemond “carried,” “used,” “brandished,” or “discharged” the firearm. (The jury’s answers to thos e questions determined the mandatory minimum sentence to which Rose mond would be subject . See 18 U.S.C. § 924(c)(1)(A).) During their deliberations, ju rors asked the trial court if they should complete the verdict form’s question three if jurors found that Rosemond aided and abetted the § 924(c) offense. The trial cour t responded that jurors were to complete question three if they f ound Rosemond guilty of the § 924(c) offense under any theory. Within twenty minutes of receiving that answer, th e jury returned its verdict, finding Rosemond guilty of the § 924(c) offense and furthe r finding that the firearm had been used, carried, brandished and disc harged. The jury’s note, however, is not sufficient to establish that jurors convicted Rosemond of aiding and abetting the § 924(c)(1) offense, rather th an finding he was the actual s hooter, particularly in light of the jury’s finding that Rosemond hims elf possessed the ammunition in the gun and because the trial court directed jurors to answer question three on the verdict form regardless of which theory jurors base d Rosemond’s § 924(c)(1 ) conviction. In light of the evidence presented at trial, then, the ju ry, in finding that Rosemond possessed the ammunition in th e gun, also must have found that Rosemond was the actual shooter. Rosemond, therefore, cannot show that the error9 in instructing jurors on the aiding-and-abe tting theory affected the outcome of the trial. 6
CONCLUSION For the foregoing reasons, this court AFFIRMS Rosemond’s § 924(c) conviction.

Entered for the Court

David M. Ebel Circuit Judge

6 We probably also could find that Rosemond i nvited the error in the first part of the aiding-and-abetting instruction, because he requested that the district court give jurors essentially the same language that the Supreme Court later found objectionable. And Rosem ond never withdrew his reque sted language after the district court ruled it was not going to give the second part of Rosemond’s requested instruction. Nevertheless, because we conclude that Rosemond has not shown the first part of the instruction was plain error affecting the tr ial’s outcome, we need not further consider whether Rose mond invited that error.