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-Appellant Justus Rosemond challenges his conviction for 

using, or aiding and abetting the use of, a firearm during a drug-trafficking offense. 

The Supreme Court determined that the district 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 AFFIRM his conviction. 

 

*

 This order and judgment is not binding precedent, except under the doctrines 

of law of the case, res judicata, and collateral estoppel. It may be cited, however, for 

its persuasive value consistent 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 Court
2 

BACKGROUND 

I. Relevant facts and procedure 

Three people in a car—driver Vashti Perez, 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 both purchasers fled, someone in the car fired several shots 

at them. Id. 

As a result of this incident, the United States charged Rosemond with four 

offenses, including using and carrying a firearm during a drug-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 United States tried Rosemond under alternate 

 1

 Section 924(c)(1)(A) provides in pertinent part the following: 

 Except to the extent that a greater minimum sentence is otherwise 

provided by this subsection or by any other provision of law, any person 

who, during or in relation to any crime of violence or drug trafficking 

crime . . . for which the person may be prosecuted in a court of the 

United States, uses or carries a firearm, or who, in furtherance of any 

such crime, possesses a firearm, shall, in addition to the punishment 

provided for such crime of violence or drug trafficking crime— 

 (i) be sentenced to a term of imprisonment of not 

less than 5 years; 

 (ii) if the firearm is brandished, be sentenced to a 

term of imprisonment of not less than 7 years; and 

 (iii) if the firearm is discharged, be sentenced to a 

term of imprisonment of not less than 10 years. 
3 

theories, alleging that Rosemond was either the actual shooter or that he aided and 

abetted the actual shooter’s use of the firearm during the drug-trafficking offense. 

Rosemond, 134 S. Ct. at 1243-44. At trial, the 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 conviction. Rosemond, 134 S. Ct. at 1244.2

 

II. The trial court’s aiding-and-abetting instruction was erroneous 

“A conviction based on a general verdict is subject to challenge if the jury was 

instructed on alternative 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 Count 1; 3) being a previously convicted 

felon knowingly in possession of ammunition (nine millimeter Winchester-Western 

shell casings); and 4) being an alien unlawfully in the United States knowingly in 

possession of ammunition (nine millimeter Winchester-Western shell casings). The 

United States alternatively charged Rosemond with aiding and abetting the first two 

counts—possessing marijuana with the intent to distribute 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 Rosemond guilty of committing 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 brandishing and discharge of the firearm), 

increasing his mandatory minimum prison sentence for the § 924(c)(1) offense from 

five to ten years. See 18 U.S.C. § 924(c)(1)(A). That sentence had to run 

consecutively to Rosemond’s sentence for the other three offenses 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 instruct jurors that 

they had to find, not that Rosemond knowingly and actively participated in the drug 

trafficking offense, but instead that he “intentionally took some action to facilitate or 

encourage the use of the firearm.” (Id. at 21.) The Supreme Court rejected 

Rosemond’s argument, concluding that, because a defendant need only aid or abet 

part of the underlying offense, 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 did not object, directing 

jurors to consider whether Rosemond “knew 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 had 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 that the district 

 3

 The Court further explained that even without direct proof that the defendant had 

knowledge of the firearm before the predicate offense occurred, “if a defendant 

continues to participate in a crime after a gun was displayed or used by a confederate, 

the jury can permissibly infer from his failure to object or withdraw that he had such 

[advance] knowledge.” Rosemond, 134 S. Ct. at 1250 n.9. On the other hand, if the 

jury finds that the defendant did not discover that his accomplice had a gun until the 
5 

court gave at Rosemond’s trial—requiring jurors to find that Rosemond “knew his 

cohort used a firearm in the drug trafficking 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 crime anyway. Id. at 1251-52. That part of the instruction, 

therefore, was wrong. Id. Nonetheless, because both Rosemond and the Government 

requested that the district court give this part of the instruction, the Supreme Court 

remanded the case to this court to determine “the appropriate consequence, if any, of 

the District Court’s error.” 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 insufficient to convict 

the defendant of aiding and abetting his accomplice’s use of a firearm. Id. at 1251. 

4

 Rosemond argues that the Government forfeited 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 appeal, and in his certiorari petition, Rosemond challenged 

only the second part of the instruction, the part to which he objected at trial. There 

was, then, no reason for the Government to call for plain-error 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 trafficking crime”—until 

the merits brief he filed with the Supreme Court, Rosemond, 2013 WL 4011049, at 

*12, *14-*15. The Government then called for plain-error review in response to that 

argument. See Rosemond, 2013 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 substantial rights. If he 

satisfies these criteria, this court may exercise discretion 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, 1029 (10th Cir. 2014) (internal quotation 

marks, alterations omitted). The Government concedes that only the third plain-error 

inquiry—whether plain error affected Rosemond’s substantial rights—is at issue 

here. Plain error affects the defendant’s substantial rights if “there 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 1214, 1221 (10th Cir. 

2014) (internal quotation marks omitted), cert. denied, 135 S. Ct. 1464 (2015). 

Rosemond has not made that showing here. 

In addition to charging Rosemond with the § 924(c)(1) offense, the 

Government also charged him with two counts 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 abetting these ammunition offenses, but only 

as a principal, and the district court instructed jurors accordingly. When jurors 

convicted Rosemond of possessing the ammunition, they necessarily 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 possessing the ammunition fired 
7 

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 possessing ammunition inside a confederate’s 

firearm.”5 (Aplt. Supp. Reply Br. at 25 (emphasis added).) But the instructions 

required jurors to find that Rosemond “knowingly” possessed the ammunition; that 

is, that he purposely and voluntarily possessed it. (R. v.1 at 78, 83.) Furthermore, 

although the district court instructed jurors that constructive or joint possession 

would suffice, the court instructed jurors that to have constructive, rather than actual, 

possession, jurors still had to find that Rosemond had the ability to exercise 

authority, dominion, or substantial control over the ammunition. 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 anyone but the shooter possessed the firearm 

that contained the ammunition. 

Rosemond further contends that a note that the jury sent the trial court during 

deliberations established that jurors did not find that Rosemond was the actual 

shooter, but instead convicted him of aiding and abetting the shooter’s use of the 

firearm. The jury’s note asked about the verdict form, which directed jurors to 

 5

 Rosemond also argues that the prosecutor’s closing argument 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 drug-trafficking offense. Question three required jurors to 

specify whether they found that Rosemond “carried,” “used,” “brandished,” or 

“discharged” the firearm. (The jury’s answers to those questions determined the 

mandatory minimum sentence to which Rosemond would be subject. See 18 U.S.C. 

§ 924(c)(1)(A).) During their deliberations, jurors 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 court responded that jurors were to complete 

question three if they found Rosemond guilty of the § 924(c) offense under any 

theory. Within twenty minutes of receiving that answer, the jury returned its verdict, 

finding Rosemond guilty of the § 924(c) offense and further finding that the firearm 

had been used, carried, brandished and discharged. The jury’s note, however, is not 

sufficient to establish that jurors convicted Rosemond of aiding and abetting the 

§ 924(c)(1) offense, rather than finding he was the actual shooter, particularly in light 

of the jury’s finding that Rosemond himself 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 based Rosemond’s § 924(c)(1) conviction. 

In light of the evidence presented at trial, then, the jury, in finding that 

Rosemond possessed the ammunition in the gun, also must have found that 

Rosemond was the actual shooter. Rosemond, therefore, cannot show that the error 
9 

in instructing jurors on the aiding-and-abetting 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 invited 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 Rosemond never withdrew his requested 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 trial’s outcome, we need not 

further consider whether Rosemond invited that error.