1 (Slip Opin i o n) OCTOBER T ERM, 20 08 Sy llabu s N O TE : Wh er e it i s feas ibl e , a s y llab u s (h ead n ot e) wil lbe rel e as ed , as is bein g d o n e incon n ecti onwithth is cas e , a tth e ti meth e op in i o n is is s u ed

. Th e s y ll abu s con s titu tes n o p a r t of th e op in i o nof th eC o u r t bu t h a s be en pre p are dbyt h e Re po rte ro f De ci sio n s fo r t h e co nveni e nce of t h e reade r . Se e United Statesv. Detroit Timbe r& Lumb er Co., 200U. S

. 3 21, 337

. 

# SUPREME CO URT O F THE UNI TED STATES
Sy llabu s 

### WADDIN G TON, SUP ERINT EN DEN T , WA SHIN GT O N COR R E C TIONS CE NT ER v . SARAUSAD CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 07–7 72. Ar g u ed Oc tober15, 2008— Dec i ded Jan uar y21, 2009 Respondent Sarausad drove the car ina dr iv ebysh ootin gat a h i gh

school, which was the culmi n ation of ag a ng dis p ute. En route to s c hool, Ronq ui llo, t h e fro n ts e a tpa ss enger, cove red his lo wer fa cea n d rea d ied aha ndgun. S a ra us a dab r uptly s l owed down up on rea c hin g the school, Ronquillo fired at a gr oup of students, kill ing one and wounding another, and Sar a usad th en s p ed away. H e , Ronquillo, and Reyes, another passenger, were t r ied on murde r and related cha r ges . S a ra us a da n d Reyes , who were t r ied a s a ccom p lices , a r gued that theywer e not ac c o mplic es to mur d erbec a use t h eyhad not known Ronquillo’s plan andhad expect edat most anot her fistfight. In her closing argument, the pros ecutor s t ressed Sarausad’s knowl

edge of a shooting, noting how he dro v e at the scene, that he knew tha tfighting a l one would notrega in res p ec t for his ga ng , a n d tha the wa s “ i n for adim e , in for adolla r.” The j u r yreceived t w oins t ruct ions that directly quoted Washington’s accomp lice-liab ility la w. Wh en it failed to r e ac ha v e r d ic t as to Rey e s, th e j u dg e dec l ar ed a mistr i al as to him. The j u ry then conv ic ted Ronq uillo on a ll counts and convicted S a ra us a dof second-degree m u rder a n d r e la t e d crim e s . In a ffirm ing Sarausad’ s conviction, the State Court of Appeal s, among other t h ings , refer r e d t o a n“ i n for adim e , in for adolla r” a ccom p lice

liab ility theory. The State Supreme Court denied review, but in it s s u b s eq uent Rob erts case, it clarified that “in for a dime, in for a dol

lar” was not t h e best descri ptor of accomplice liab ility b e cause an ac complice must have k n owled g e of th ec r im e t h a toccu rre d. Theco urt also explicitlyreaffirmed its preced entthat the ty pe of jur yinstr u c tions used a tSar a us ad’ s tr ial c o mpo r t with Washing t on law. Sar a u s adsou gh tsta t e po st c o n v ic ti on reli ef, arguing that the prose

-2 WADDINGTON v. SARAUS AD Sy llabu s cut o r’s im prop er “ i n for adi m e , in for ad o lla r” a r gum e ntm a y have led the jur yto c o nv ic t him as an ac c o mplic e to mur d erbas ed solelyo n a fin d in gth ath e h a d an tic i pated th at anas sau l twou l d oc c u r. Th e state appeals court reexamined the trial record i nlight of Rob erts , b u t found no error requiring correction. The State Supreme Court denied S a ra usa d ’s petition, holding t h a tthe t r ia l court corre ct ly in

s t ruct ed t h e jury a n d t h a tno prej udicia l error res u l t ed fromt h e prosecutor’s potential l y improperhypothetical. Sarausad then sou gh tr e v i ew u n d er 28 U. S. C. §2254, wh ic h , int e r ali a, permits a feder a l c o u r t to g r an t h abe as r e lief onac l aim “a dju d i c ated onth e mer i ts” in st at e c o ur t onlyif the dec i sion “was contrary t o , or i n volved anu n r eason able appl ic atio nof, c l ear l yesta bli s h e d Feder a l law, a s deter m ined by” this Cour t, §225 4(d)(1). The District Court granted the petition, a n d the Ninth Cir c u it a ffirmed, finding it unrea s o nab l e for t h e s t a t e courtt o a ffirmS a ra us a d ’s c o nvict i on b e ca us e t h e j u ry ins t ruct ion on a ccom p lice liab i lit ywas ambiguous andthere was a reasonable l i kelihood that the jury misinterpreted the instruction in a wayth at r e liev e d th e State of it s burden of pro v ing Sarausad’ s knowledge of a shooting beyond a reasonable doubt. Held: Beca us e the s t a t e-court decis i on did not res u lt in a n“unrea s o n able app lic at i o nof .

. . c l ea r l yestabli s h e d Feder a l law,” §2254(d)( 1 ), the Ninth Ci rcuit erred in granti n ghabea s r e lief t o Sar a u s ad. Pp. 10–1 7.

(a) When a st ate court’s ap plication of governing federal law i s challenged, the decision “ ‘must be shown to be not o n ly erroneous, but objectivel y unreasonabl e.’ ” Mid d leto nv. McNe il , 5 41 U. S. 4 33, 436 (per curia m ). A defend ant c h alleng ingthe c o nstitutionali t yof a ju r yin str u c t ionth at qu ote s a st ate st atu t e mu st sh ow bothth atth e in str u c t ionwas am big u ou s a n d th at th er e was “ ‘ ar e aso n able likel i

hood’ ” that the jur yapplied the in struction in a way tha trelieved the State of its burden of p r ovi n g eve r y element of the cri me beyond a r e ason able do u b t. Estellev. McGui re , 502 U. S. 62, 7 2

. Th e in str u c tion “must be considered in the cont ext of the instructions as a whole a n d t h e t r ia l record,” ibid., a n d the pertine n t question is whether the “instr uc tion byitself so infec t ed the entir e tr ial that t h e r e sulting conviction violates due process,’ ” ibid. Pp. 10– 11.

(b) Because the Washington courts ’ conclusion that the jury in

s t ruction wa s una mb iguous wa s not obj e ctively un rea s onab l e, the Ninth Circuit should have ended it s § 2 254(d)(1) inquiry there. The ins t ruct ion parrot e d t h e s t at e st a t ut e’s langua ge , req u iring t h e j u ry to find Sar a u s ad g u iltyas an ac c o mplic e “in the c o mmiss ion of the [murder]” if he a c ted “with knowledge th a t[his conduct would] pro

mote or facilitate the commission of the [murder],” Wa sh. Rev. Cod e §§9A.08.020( 2)(c), (3)(a). The ins t ruct i o n ca nnotb ea s s i gned a n y3 Cite as: 55 5 U

. S. ____ (2009) Sy llabu s meaning different from the one given to it bythe Washi n g t on c o ur ts. Pp. 11–1 2.

(c) Even if theinstruction were ambiguous, the Ninth Circuit stil l erred infindi n g its o a m b i guous a s t o ca us e afedera l cons t i t u t i onal violation requ iring reve rsal underAEDPA. The Washi n gton courts r e ason ablyap plied th is Cou r t’ s pr ec edent when they found no “rea

sonable like lihood” that the prosecut or’s cl osing argume nt caused the j u ry t o a pply t h e ins t ruct ion in a way th at relieved the State of it s burden to prove every ele m ent of th e c r i me bey o n da r e ason able doubt. The prosecutor consistentlyar g u ed th at Sar a u s a dwas g u ilty as an accompl i ce because he acted with knowledge that he was facili

tating a drive b y shooting. She ne v e rar gu ed th at th e admi ssionby Sar a u s ad an d Rey e s th at th e yan tic i pated a figh t was a c o n c essionof ac c o mplic e lia bili tyformurder

. Sar a usa d ’ s attor n eya l so homed i n on the key qu estion, stressing a lack of evidence s h owing that Sarausadknew that hi s a ssi stan ce would promote or facilit ate a premeditated murder. Eve r y state and federal appell at e court that r e v i ewed the v e r d ic t found the evidence s u pport ing S a ra usa d ’ s knowledge of a shooting legally suffi cient to convicthim underWa s h

ington law. G i ven the strength of that evi d ence, an d the jury’s fail

u r e to c o nv ic t Rey e s—wh o had al so beenc h ar g e d as anac c o mplic e t o murder and admitte d knowledge of a po ssi ble figh t—itw a s n o tobjec

tively unreasonable for the Washingt on c o ur ts to c o nc lude that the j u ry conv ict e dS a ra usa db e ca us e it belie ved that he, unlike Reyes, had knowledge of more thanjust a fi stfigh t. The Ninth Circuit’s con

tr ar yr e ason ingis u n c o n v i n cin g . Pp. 13–1 7. 479 F. 3d 67 1, r e v e r s ed an d reman d ed.

T HOMAS , J., d e livered the opinion of the Court, in whi c h R OBERTS , C. J., and S CALI A , K ENNEDY , B REYER , and ALITO , JJ., joi n ed. S OUTER , J., filed a dissenti ng op inion, in which S TEVEN S an d G IN SB U R G , JJ., joined._________________

_________________ 1 Cite as: 55 5 U

. S. ____ (2009) Opinion of theCourt
NOTIC E : Th is op i n ionis subjec t to f o rma lrevi si onbef o r e publicat ioninth e p r eli m in ary p r in t of th e U n it edS t at es R e p o rts

. R e ad ers ar e r e qu es ted to n o tif yth e R e p o r t e rof D e c i s i on s , Su p r em e C o u r t of th e U n ited St at es , Wa s h

ington, D. C. 2054 3, of any typ o gra p hical or other f o rmal err o rs , in or der th atc o rr ect i on sm a y b e mad eb e f o r e th ep r e lim in aryp r in t go es t o p r es s . 

# SUPREME CO URT O F THE UNI TED STATES

No. 07–7 72 

### DO UG WADDIN G T O N, SUP ERI NTEN DE N T ,

WASHIN GTON CORR ECTIONS CENT ER, PETITIONER v. C E SAR SARAU S AD ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEAL S FOR THE NINT H CIRCUIT [Jan u a r y21, 2009] 

### J USTICE 

### T HOMA S 

### delivered the opinion of the C o urt. This case arose from a fatal driveby shooting into a group of students standing in front of a Seattle high school. Bri an Ronquillo was ulti mately identified as the gunman; at the time o f the shooting, he was a passenger in a car dri v en by respondent Cesar Sa rausad II. A jur y convicted Sarausad as an accomplice to second-degree murder, attempted mu rder, and a ssault; he was sentenced to just over 27 years of imprisonment. The Washington courts affir m ed his conviction and sentence on direc t review, and his stat e-court motions for postconviction relief were denied. Respondent, then, filed a federal petition for a writ of habeas corpus. The District Co urt granted the writ. On appeal, the Court of Appeals for the Ninth Circuit agreed with the Di strict Cour tthat the s t ate-court d e cision was an objectively “unreasonable application of

. . . clearly establishedFederal law, as determined by the Supreme Court of the United States.” 28 U

. S. C. §2254(d)(1). The Court of Appeals found it unreasonable for the state court2 WADDINGTON v. SARAUS AD Opinion of theCourt 

### to reject Sarausad’s argumentth at certain j u ry instruc

tions used at his trial were ambiguous and were likely misinterpreted by the jury to relieve the State of its bur

den of proving every e l ement of the crime beyond a re a sonable doub t. Sarausad v. Porter , 479 F. 3d 671 (2007)

. We disagree. Because the Washington courts reasonably applied our precedent to the fa cts of this case, we reverse the judgme nt below. I A The driveby shooting was the culminationof a gang dispute between the 23d Street Diablos, of which Cesar Sarausad was a member, and the Bad Side Posse, which was headq uartered a tBallard High Scho ol in Seattle, Washington. A member of the Diablos, Jerom e Reyes, had been chase dfrom Ballard by me mbers of the Bad Side Posse, so the Diablos decided to go “to BallardHigh S c hool to show that the Diablos were not afraid” of the rival gang . App. to Pet. for Cert. 235a. The Diablos started a fight with the B a d Side Posse, but left quickl ya f ter someone indicated that police were nearby. They went to a ga ng member’s house, still angry beca use the Ba d Side Posse had “called [them] weak.” Tr. 2 660–2661. Brian Ron

quillo retrieved a handgun, and the gang deci de d to return to Ballard and “get [the ir] respect b a ck.” Id., a t2699. Sarausad drove, with Ronquillo i nthe front passenger seat and Re yes and two other Diabl os in the back seat. En route, someone in the car mentio ned “ ‘cappi ng’ ” t h e B a d Side Posse, and Ronquillo tied a bandana over the lower part of his face and readied the handgun. Sarau s ad v. Sta t e , 109 Wash. App. 824, 844, 39 P. 3d 308, 319 (2001). Shortly before reaching the hi gh school, a second car of Diablos pulled up next to Sarausad’s car and the drivers of the two ca rs talkedb r iefly. Sa r ausad aske d the othe r driver, “ ‘Are you ready?’ ” id., at 8 44–845, 39 P. 3d, at 31 9,3 Cite as: 55 5 U

. S. ____ (2009) Opinion of theCourt 

### and then sped the rest of the way to the high school. Once in front of the school, Sarausad abruptly slowed to about five miles per hour while Ronquillo fired 6 to 10 shots at a group of students standing in front of it. Id., at 831, 39 P. 3d, at 312. Sarausad “saw everyone go down,” Tr. 28 70, and then s p ed away, 109 Wash. App., at 832, 39 P. 3d, at 313. The gunfire killed one student; another student was wounded when a bullet fragment struck his leg. Id., at 831–832, 39 P. 3d, at 312–313. B Sarausad, Ronquillo, and Reyes were tried for the first

degree murder of Mel i ssa Fernan des, the att e mpted first

degree murders of Ryan Lam and Tam Nguyen, and the second-degree assau l t of Brent Mason. S a rausad and Reyes, who were tried as accomp lices, argued at trial that they could not have been accomplices to murder becaus e they “had no idea whatsoev er that Ronquillo had armed himself for the return trip.” Id., at 832, 39 P. 3d, at 31 3. They claimed that the yexpected, at most, an other fistfigh t with the Bad Side Posse andwere “totally and utterly dismayed when Ronquillo started shooting.” Ibid. Sarausad’s counsel, in particular, argued tha tthere wa s no evidence that Sara usad expected anything more than that the two gangs “would ex change insults, and mayb e, maybe get into a fight.” Tr. 1151. Sarausad testified that he considered only the “possibility of a fight,” id., at 2799 , but never the possibility of a shooting, 109 Wash. App., at 832, 39 P. 3d, at 313. Du ring closing argumen t s, Sarausad’s attorney again argued that the evidence showed onl ythat Sarausad was “willing to fi ght them the way they fo ught them t h e first tim e . And tha tis by push

ing and shoving and more tough talk.” App. 81. That was not sufficient, the at t o rney argu ed, to findthat “Ces ar [Sarausad] had kno w ledge tha this assistance wo uld promote or facilitate t h e crime of premeditated murder.”4 WADDINGTON v. SARAUS AD Opinion of theCourt 

### Id., at 83. Sarausad’s attorney also explained to the jury that k n owledge of just any cr ime, such as k n owledge that criminal assistance would be rendered after the shooting , would be insufficient to hold Sarausad responsible a s an accomplice to murder because “[a]ccomplice liability re

quires that one assists with knowl e dge, that their actions will promote or facilit ate the commission of thecrime .” Id., at 100 (emphasis a dded). In response , the prosecutor focused much of her closing argument on the evide n ce of Sarausad’s k n owledge of a shooting. He had “slowed do wn before the shots were fired, stayed slowed down until the shots w e re over an d immediatel y sped up.” Id., at 39. “There was no hesit a tion, there was no stopping the car. There was no attemp t for Mr. Sa r ausad to swerve his c a r out of th e way so th a t innocent people wouldn’t get shot.” Id., at 40. She als o argued tha tSarausa dknew whe nhe drove back to th e school that his gang’s “fists didn’t work, the pushing didn’t work, the flashing of the signs, the violent altercation didn’t work” because the Bad Side Posse still “laughed at them, they called them weak, theycalled them nothing.” Id., at 44. So, “[w]he n they rod e down to Ballard Hi gh School that last time, .

. . [t]hey k n ew they were there to commit a crime, to disrespect the gang, to figh t, to shoot, to get that respect bac k. A fi st di dn’t work, p u shing didn’t work. Shouting insults at them didn’t work. Shooting was going to work. In for a dime , you’re in for a dollar.” Id., at 123–124.

At the close of trial, t h e jury rec e ived two i n structions that direct ly quoted Washington’s accomplice-liability statute. 1 

### Instruction number 45 provided:

——————

1 Washington’s accomplice-li abil i ty statute provides, in pertinent part:

“A person is guilty of a cri me if it is commit t ed by the co nduct of another person for which heis legallyaccountable. A person is legall y accountable for the conduct of another person when:5 Cite as: 55 5 U

. S. ____ (2009) Opinion of theCourt 

### “You are instructedt hat a pers on is guilty of a crime if it is committed bythe conduct of another per

son for which he is legally accou n table. A person is legally accountable for the conduct of another person when he is an accomplice of such other person in the commissionof the crim e .” Id., at 16 (emphasis added). Instruction number 46 provided, in relevant part: “A person i s an accom p lice in the commission of a crime if, with knowledge thatit will promote or facili

tate the commission of the cr ime , he or she e i ther: “(1) solicits, commands, encourages, or requests an

other person to commit the crime or “(2) aids or agrees to aid another person in plan

ning or co mmitting t h e crime.” Id., at 17 (emphasis added). During seven days of deliberation s , the jury asked five questions, t h ree of which related to the intent requirement for accomplice liability. One questioned the accomplice

liability sta n dard as it related to the first-degree murde r instructions; one questioned the st andard as it related to the second-degree murder instructions; and one state d that the jur ywas “ha v i n g difficult y agreeing on the legal definition and concept of ‘acco mplice’ ” a n d whether a person’s “wi lling partici pat[ion] in a group acti vity” makes

——————



### . . . . . “He is an acc o mplice of such othe rper s on in the c o mmiss ion of the crim e .

“A person is an accomplice of an other person in the commission of a crime if .

. . [w]ith knowledge thati tw ill promote or facilit ate the c o mmiss ion of the c r i me, he

“(i) so licits, commands, encourages, or requests such other person to c o mmit it; or

“(ii) aids or agrees to aidsuch other per s on in pla nning or commit

tin git.” Wa s h . Rev

. Code §§9A.08.0 20( 1 ) –(3) (2 008) (i n t er n a l n u m ber

ing omitted).6 WADDINGTON v. SARAUS AD Opinion of theCourt 

### “that perso nan accomplice to any crime committed by anyone in the group.” Id., a t1 2 9

. I nr e s p o n s e t oe a c h question, t h e judge instructed th e jury to r e read the ac

complice-liability instructions and to consider the instruc

tions as a whole. The jury was unable t o reach a verdict as to Reyes, and the judge d e clared a mistrial as to him. The jury the n returned g u ilty verdic ts on all c o unts for Ronquillo and convicted Sarausad of t h e lesse r included crimes of second

degree murder, atte mpted second-degree murder, a n d second-degree assault. C On appeal, Sarausad a r gued that because the State did not prove that he had intent to kill, he coul d not be con

victed as an accomplice to second-degree murder under Washington law. The Washington Court of Appeals af

firmed his convictions, explaining that under Washington law, an accomplice mu st have “general k n owledge” that the crime will occur, but need not have the specific intent required for that cri me’s commi ssion. App. to Pet. for Cert. 259a. The court referred to a ccomplice li ability as “a theory of criminal liability that in Washington has been reduced to t h e maxim, ‘in fo r a dime, in for a dollar.’ ” Id., at 235a. The Washin gton Su pre m e Court denied discre

tionary rev i ew. State v. Ronquillo , 136 Wa sh. 2d 1018, 966 P. 2d 1277 (1998). Shortly thereafter, the Washin gton Supreme Court clarified in an unrelated criminal case that “infor a dime, in for a dollar” is notthe best descriptor of accomplice liability under Washington law because an accomplice must have knowledge of “the crim e ” that oc cu rs. St a t e v. Roberts , 14 2 Wash. 2d 471, 509– 510, 14 P. 3d 713, 734– 735 (2000). Therefore, an accom p lice who knows of one crime—the dime—is not guilty of a greate r crime—t he dollar—if he has no k n owledge of that greater crime. It7 Cite as: 55 5 U

. S. ____ (2009) Opinion of theCourt 

### was error, then, to instruct aju ry tha tanaccomplice’s k n owledge of “ ‘a crime’ ” was suffic i ent to establish accom

plice liabili ty for “ ‘the crime.’ ” Ib i d

. 2 

### The Washington Supreme C o urt limited this decision to inst ructions con

taining the phrase “a crime” and explicitly r e affirmed its precedent establishing that jury instructions linking an accomplice’s knowledg e to “the cri me,” such a s the instru c tion used at Sarausad ’s trial, comport wi th Washington law. Id., at 511–512, 14 P. 3d, at 736 (discussing Sta t e v. Davis , 101 Wash. 2d 654, 656, 682 P. 2d 883 , 884 (1984)). An instruct ion that references “the crime” “copie[s] exactly the language from the accomp lice liability statute” an d properly hi nges criminal punish m e nt on k n owledge of “the crime” for which the defendant was charged as an accom plice. 142 Wash. 2d, at 512, 14 P. 3d, at 736. D Sarausad next sought postconvi ction relief from the Washington courts. He argued th at although the accom

plice-liability instruction used at his trial co mplied with Roberts , “a n additional clarifying instruction should have been given” because the prosecutor may ha ve confused the jury by improperly arguing that he had b e en “ ‘in for a dime, in for a dollar.’ ” Sarau s ad, 109 Wash. App., at 82 9,

——————

2 The instruction found faulty in Rob erts pro v ided in full: “You are instr u cted that a p e rson is guiltyof a crime if i tis commi t

t e d b yt h e con d uctof a n ot her pers on for w h ich he is lega lly a ccount ab l e. A pers on is lega lly a ccount ab l e for t h e conductof a n ot her pers on whe n he is a na ccom p lice of s u cho t her pers on in t h e com m i s s i on of a crim e .

“A

pers on is a na ccom p lice in t h e commis s i on of a crim e , whet her pr esent at the time of its c o mmis s ion or n o t, if, with knowledge that it will promote or facilitate it s commiss ion, he either:

“(a) solic it s, c o mman d s, en c o u r ag es , or re quests anothe r person to c o mmit the c r i me; or

“(b) aids or agrees to aid anothe r pers onin pla nning or committing th e c r i me.” 142 Wash

. 2d, at 488–4 89, 14 P. 3d, a t 724 (e mph a s i s added).8 WADDINGTON v. SARAUS AD Opinion of theCourt 

### 39 P. 3d, at 311. Therefore, he ar gued, the jury may have convicted h i m as an accomplice t o second-degree murde r based solely on his ad mission tha the anticipated that an assault would occur at Ballard HighSchool. The Washington Court of Appeals reexamined the trial record in its entirety in light of Roberts , see 109 Was h

. App., a t83 4, 39 P. 3d, at 313–3 14, but fou n d no erro r requiring c o rrection. According to the court, the prosecu

tor’s closingargument in its entirety did not convey “ t ha t the jury co uld find Sarausad guilty as an accomplice to murder if he had the p u rpose to fa cilitate an offense of an y k i nd whatsoever, evena shoving match or fist fight.” Id

. , at 840, 39 P. 3d, at 317. The prosecutor’s “ ‘i n for a dim e , in for a doll ar’ ” illustration also di d not convey that stan

dard. Id., at 842–843, 39 P. 3d, at 318. The court ex

plained tha tin every situation b u t one, theprosecutor clearly did not use that phrase to argue that Saraus ad could be convicted of murder if h e intended only a fistfigh t

. Instead, she used it to convey a“gan g me ntality” th at requires a wrong to th e gang to be avenged b yany means necessary. Ibid. Thus, according to the prosecutor, when a fight did not work, Sarausad kn ew that as h ooting wa s required to avenge his gang. See ibid

. There was one “in for a dime, in for a dollar” hypotheti

cal in the prosecutor’s closing that did not convey this gang-menta lity meaning and thus, the court recognized, “may or ma y not be problematic under Roberts ” depending on how it was interpr e ted. Id. , a t843, 39 P. 3d, at 318. 3

——————

3 The prosecuto rhad argued in the hy pothetic al tha tanac c o mplic e wh o kn ows th at h e is h e lpin gsomeon e ass a u l t a v i c t im bear s r e spon si

bili ty if the victim is kil l ed. The hypotheti c al stated in f u ll: “Let me give you a good e x ample of accomplice liabili ty. A f r iend c o mes up to you and say s , ‘Hold this per s on’ s ar ms while I hit him.’ You s a y, ‘Oka y, I don’t know tha tpers on, a n ywa y .’ Yo u hold the a r ms . The person no t only gets as saulted, he ge ts killed. You are an accom

plic e an d y o u c a n ’ t c o me bac k an d s a y , ‘Well, I only inten d ed this much9 Cite as: 55 5 U

. S. ____ (2009) Opinion of theCourt 

### The court concluded that it did not need to decide whethe r the hypoth etical was improper under state law because, even if it was, it did n o t prejudice Sarausad. Sarausad’s jury was pr operly instr u cted and“the prosecutor made it crystal clear to the jur ythat the State want ed Sarausa d found guilty .

. . because he knowingly facilitated the drive-by shooting and for no other reason.” Id., at 843 – 844, 39 P. 3d, at 319. Sarausad sought discretio nary postconvicti on review from the Supreme Court of Washington. In denying his petition, the court he ld that “th e trial cou rt co rrectly instructed t h e jury” tha tkno w ledge of the par t icular c r ime committed was required. App. to Pet. for Cert. 191a. Th e court also found that no prejudicial error resulted from the prosecutor’s potentiall y improper hypothetical. Id. , a t 192a. “[W]hatever the flaws in the argument, the prosecu

tor properly focused on Mr. Saraus ad’s kno w ing participa

tion in the shooting, not in some lesser altercat i on.” Ibid. E Sarausad filed this pet i tion for a writ of hab eas corpus in Federal District Co urt pu rsuant to 28 U. S. C. §2254. The Distric tCourt gr anted the petition, finding “am p le evidence that the jury was co nfused about what elemen ts had to be e s tablished in order for [Sarausad] to be found guilty of second degree murder and secon ddegree at

tempted m u rder.” App. to Pet. fo r Cert. 129a. The Cou r t of Appeals f o r the Nint h Circuitaffirmed, finding that the state postconviction court unreasonably applied this Court’s decisions in Estellev. McGuire , 5 02 U. S. 6 2 (1991), Sandstrom v. Montana , 4 42 U. S. 510 (1979), and

—————— da ma ge to happen.’ Yo ur p r es ence, your rea d ines s to as s i s tca us ed the crim e t o occu r a n d youa r ea na ccom p lice. The la w i nt h e S t a t e of Wa s h ingt on s a ys , if you’ re i nfor adim e , y o u’re i nforadolla r. If you’re there or even if you’re not there an d you’re helping in some f a shion to br in gabou tth is c r i me, y o u ar e ju st as g u ilty

. ” App. 38.10 WADDINGTON v. SARAUS AD Opinion of theCourt 

### In re Win s hip , 397 U. S. 35 8 (1970), in affirming Sarausad’s conviction in spite of ambiguous jury instruc

tions and the “ ‘reasonable likelihood that the jury .

. . applied the challenged instruction in a way’ that violates the Constitution.” 47 9 F. 3d, at 683 (quot i ng Estel le, supra, at 72 ). The court denied rehearing en banc over the dissent of five judges. Sarausadv. Por t er, 5 03 F. 3d 82 2 (2007). We granted certiorari, 552 U. S. ___ (2008), and now reverse. II Under the Antiterroris m andEffective DeathPenalty Act of 1996 (AEDPA), 110 Stat. 1 214, a federal court may grant habeas relief on a claim “adjudicated on the merits” in state court only if the decision “was contrary to, or involved an unreasonable application of, clearly estab

lished Federal law, as determined by the Supreme Court of the Unit ed States.” 28 U. S. C. §2254(d)(1)

. Where, a s here, it is the state court’s application of governing federal law that is challenged, the decision“ ‘must be shown to be not only erroneous, bu t objectively unreasonable.’ ” Mid

dletonv. McN e i l , 541 U. S. 433, 436 (2004) (per curi am ) (quoting Yarboroughv. Gentry , 540 U. S. 1, 5 (2003) (per curiam)); see also Schriro v. Landrigan , 550 U. S. 465, 47 3 (2007) (“The questionunder AEDPA is not whether a federal court believes the stat e co urt’s deter m ination was incorrect b u t whether that determination was unreason

able—a sub s tantially higher threshold”). Our habea s precedent places a n“especially heavy” burden on a defendant who, like Sarausad, s eeks to show constitutional error from a ju ry instruction th at quotes a state statute. Hendersonv. Kibbe , 431 U. S. 145, 1 5 5 (1977). Even if there is some “ambiguity, inco nsistency, or deficiency” in the instr u ction, such an error does not nec

essarily constitute a due proces s violation. Middleton , supra, a t4 37. Rather, the defendant must show both th at11 Cite as: 55 5 U

. S. ____ (2009) Opinion of theCourt 

### the instruction was a m biguous and that there was “ ‘a reasonable likelihood’ ” that the jury applied the instruc

tion in a way that relieved the State of its burden of prov

ing every element of the crime bey o nd a reas onable doubt

. Estelle , sup ra, at 72 (quoting Boydev. California , 494 U. S. 370, 3 80 (1990)). In making this determ ination, the jury inst ruc t ion “ ‘may not be judged in artificial isolation , ’ but must b e considered in the context of the instruction s as a whole and the t r ial record. ” Estelle , supra, at 7 2 (quoting Cupp v. Naughten , 41 4 U. S. 141, 147 (1973 )). Because it is not en ou gh that the r e is som e “slight possi

bility ” thatthe jury misapplied the instruction, Weeks v. Angelone , 5 28 U. S. 225, 236 (200 0), the pertinent question “is ‘whether the ailing instruction by itself so infected the entire trial that the resulting c o nviction v i olates due process,’ ” Estelle , sup ra, at 72 (quoting Cu pp , sup ra, at 147). A The Washington courts reasonably concluded that the trial court’s instruction to th e ju ry was not ambiguous

. The instruction parro ted the la nguage of the statute , requiring that an accomplice “inthe commission of the crime” tak e action “with k n owledge that it wil lpromote o r facilitate the commissi on of the cr ime .” App. 16–17 (em

phasis added); Wash. Rev. Code §§9A.08.02 0(2)(c), (3)(a) (2008). It is impossib l e to assign any mea n ing to thi s instruction different from the meaning given to it by the Washington courts. By its plain terms, it instructed th e jury to find Sarausad guilty as an accomplice “in the com

mission of t h e [murder]” only if he acted “with k n owledge that [his conduct] willprom ote or facilitate the commis

sion of the [murder].” App. 16–1 7. 4 

### Because the conclu

-

——————

4 The dissent would reve rse the Washin gton state courts based on the alleged confusion in Washin gton cour ts, and specificallyin the W a sh

ington Court of Appeal s ondirect review, about the meaning of the12 WADDINGTON v. SARAUS AD Opinion of theCourt 

### sion reached by the Washington courts that the jury in

struction was unambiguous was not objectively unreason

able, the C o urt of Appeals’ 28 U. S. C. §2254(d)(1) inquiry should haveended there. 5

—————— Washington a ccomplice lia bili ty st atute. Post , at2 –5 (op i n i ono f S OUTER , J.). But the c o nfusion in the Court of Appeals over theappli

cation of the statute involved the re lated, but legally dis t inct, question whet her a na ccom p lice is req u ired t o sh are the specif ic intent of th e principa l a c t o r under Wa s h ingt on la w. On directa p pea l , res p ondent ar g u ed th at he sh ou ld n o t h av e been c o n v ic ted as an ac c o mplic e to murder b e ca u s e he did not have the s p ecific intent to ki ll. The Wash

ing t on Cour t of Appea l s r ej e c t ed thatar g u ment bec a use “i t wa s no t necessary for the State to prove Sara us a dknew Ronq uill o ha d agun, o r knew that there was a pote ntial fo r gunpla y t h a tda y” u n der Wa s h ing

ton law, App. to Pet. forCer t

. 266a, where “accomplice liab ilitypredi

ca t e s crim i na l liab i lit yon g e nera l knowle dge of a crim e , ra t h ert h a n specific knowl e dge of the ele m en t s of t h e principa l’s crim e ,” id. , at 259a

. But the Washing t on Cour t of Appeal s never held that knowledge of a c o mpletelydif f er ent c r i me, suc has ass a ult, would be s u ffic i ent under Washington law for accomp lice liabi lity fo r murder. Se e id., at 258a– 259 a; see also In re Domin go , 155 Wash

. 2d 35 6, 367 –3 68, 11 9 P. 3d 816, 8 22 (2 0 05) (“[N]ei t h e r Davis n o r an yof th is cou r t’ s dec i sion s s u b s eq uent to Davis approves of the proposition that ac complice liabil

it y a t t a ches for a n ya n d a ll crim e s c o mmitted bythe princ i pal so long as the puta tiv e ac c o mplic e knowing l y aide d in any one o f the crimes”). In other word s, the Court of Appeal s hadevaluated w h ether respon

dent’s conviction required a specific inten tversus ageneral intent t o kill, not whether it require dknowle dge o f a murder ve rsus knowledge of a na s s a ult—the is s u e under reviewher e . Thus , the c o nfus ion in th e s t at e court s referenced b yt h e dis s e nt has no bearing on the questio n presented in t h is appe al, an d does not suppor tthe dis s e nt’ s ar g u ment t h a tt h e j u ry i n s t ruct ion inqu estion was ambiguous.

5 To the ex tent that the Cour t of Appeals atte mpted to r e wr ite state law by proposing that the instruction should have includ ed “an explicit sta t ement tha tan ac c o mplic e must haveknowledgeof

. . . theactual c r i me th e pr in c i pal in ten d s to c o mmit,” 479 F. 3d 671 , 689– 69 0 (C A9 200 7), itc o mpou n d ed its er r o r. The Washington Supreme Cour t expres s l y held t h a tt h e j u ryins t ruct ion c o rrect ly s e tfo rt h s t a t e la w, App. to Pet. fo rCer t . 191a, an d we h av e repeatedlyh e ldth at “ i t i s n o t th e pr ov inc e of a feder a l h abeas c o ur t to r eex amine sta t e-c o ur t deter

minations on state-law que s tions.” Estellev. McG uire, 502 U. S. 6 2 , 67– 68 (1 991).13 Cite as: 55 5 U

. S. ____ (2009) Opinion of theCourt 

### B Even if we agreed that the instruction was a m biguous, the Court of Appeals still erred in f i nding that the instruc

tion was so ambiguous as to cause a federal constitutional violation, a s required for us to reverse the state court’s determination under AEDPA, 28 U. S. C. §2254(d). The Washington courts reasonably applied this Court’s prece

dent when they determined that there was n o “reasonable lik elihood” that the prosecutor’s closing argument caused Sarausad’s jury to ap ply the instruction in a way th at relieved the State of its burden to prove every element of the crime beyond a reasonable doubt. The prosecutor consistently argued th at Sarausa dwas guilty as an ac

complice because he a cted with knowledge that he wa s facilitating a driveby shooting. Indeed, Sarausad and Reyes had admitted u n der oath t hat they a n ticipated a fight, Tr. 2671, 2794, and yet the prosecutor never argued that their admission was a concession of acco mplice liabi l

ity for murder. She instead argued that Sarausad kn ew that a shoo ting was intended, App. 123, beca use he drove his car in a way that would hel p Ronquillo “fire those shots,” id. , at 39. The closing argument of Sarausad’ s attorney also homed in on the key legal question: He challenged the jury to look for evidence that Sarausa d “had knowl e dge that his a ssista n ce would promote or facilitate the crime of premed itated murder” and argue d that no such evidence existed. Id. , at 83. Put s i mp ly, ther e wa s n oevidenc e of ultimat ej u ror c o nfu

sion as to th e t e st for accomp li c eliability under W a shington law. R ather, the jury simply reach e d a una nimou sd e cision that th e Stat e h a d proved Saraus a d’s guilt b e yo nd a reas on able do ub t. Ind e ed, every state an d fed e ral ap pellat e c o urt that r e viewed the ve rdict foun d that the evidence supporting Saraus ad’s knowledge of ash ooting was legally suffici ent to convict himunder Wa s hington law

. 479 F

. 3d, at 677–6 83 ; Sarausad, 109 Wash

. App., at 84 4–8 45, 3 9P. 3d , at 31 9.14 WADDINGTON v. SARAUS AD Opinion of theCourt 

### Given the strength of the evidence supporting th e c o nvicti on, al ong withth e j u ry’s f ail ur e to convict Reye s—who also had been ch arged as an acc o mp lic e to murder and als oh a d a d

mitt ed kn o wledge of a pos s ib l efight—it wa s not obj e ctively unreasonable for the Washington courts to conclude that the jury convict e d Saraus a d only b e cause it believed that h e , unlike R e ye s, h a d kn owledge of mor eth an j u st af i stf i ght. The r e a s oni n g of th e C o urt o f App e al s, which f ail ed torevi e w the stat e c o urts’ r e solution of this question through th e def e rential lens of AED PA, do es n o t convinc e usoth e rwis e. First, the Court of Appeals found that the evidence of Sarausad’s k n owledge of the shooting was so “thin” that the jury m u st have incorrectly be lieved that proof of such knowledge was not required. 479 F. 3d, at 692–693. That conclusion, however, is foreclosed by the Cour t of Ap peals’ own deter m ination that the evi d ence was sufficient for a rational jury to reason ably infer that Saraus ad knowingly facilitated the driveby shooting. As explained above, the Court of Appeals ackno w ledgedthat the evidence showed that Ronqui llo, while seated in Sarausad’s fro n t passenger seat, tied abandana over the lower part of his face and pulled out a gun. Id., at 681. There also was evidence that Sa rausad then asked the Diablos in t h e other car,
“ ‘Are youready? ’ ” before driving to the school and “slow[ing] his car in f r ont of the school ina manner that facilitated a drive-by shooting.” Ibid. Other gang mem

bers testified to p r ior knowledge of the gunan d to discuss

ing the shooting as anoption dur i ng the gang meeting held between trips to Ballard High School. Id., at 682. There also was testimony from Sarausad that he sus

pected that members of the BadSide Poss e would be armed whe nthey retu rned to Bal l ard High School, ibid. , making it reasonable to conclude that Sara usad would expect his g ang to be similarly prepared for th e confronta

tion. There was nothing “thin” about the evidence of Sarausad’s guilt.15 Cite as: 55 5 U

. S. ____ (2009) Opinion of theCourt 

### Second, the Court of Ap peals faulted the prosecutor fo r arguing “clearly and forcefully” for an “in for a dime, in for a dollar” theory of accomplice liability. Id., at 693. Bu t the Washin gton Court of Appeals conducted an in-depth analysis of the prosecutor’s argument and reasonably found that it contained, at most, one problematic hypo

thetical. Sa raus ad, su pra, at 842 –843, 39 P. 3d, at 318– 319. The st ate court’s conclusion t hat the one hypothetica l did not taint the proper instruction of state law was rea

sonable un der this Court’s precedent, which acknowledges that “ar gu m ents of counsel generally carr y less weight with a jury than do in structions from the court.” Boyde , 494 U. S., a t384. On h abeas review, the Court of Appeals should not have dissected the closing argume nt and exag

gerated the possible effect of one hypothetical in it

. Ther e was nothing objectively unreasonable about the Washin g ton courts’ r e solution of this question. 6 

### Third, and last, the Co urt of Appe als believedthat the jury’s que stions “demonstrated substantial confusion about what the State was required to prove.” 479 F. 3d, at 693

. Sarausad focuses special attention on this factor,

——————

6 Th e dissen ta c c u ses u s of dow n play in gthis am big u ou s h y poth etic al, arguing that it is so rife wit himpr oper meaning that it “infect[ed] every fu r t h e rstate m en t be ar in gonac c o mplice law the pr osecutor mad e ,” post , at 7, an d en su r e d th a tth e ju r ymisinterpreted the trial court’ s properly-phrased instructio n. We disagree. The p r o p er inquiry i s whether the state court was objectivel y unrea s o nab l e in concludin gtha t the instruction (which pre c isely trac ked the language of the accomplice

liab ility st atut e) was not wa rped by this o n e-paragraph hypothetical in anar g u men tan d r e bu tta l span n i n g31 pag e s of th e j o in t appen d ix

. The s t a t e court’s conclus i onwa s not unre a s o nable. The hypothetica l was presented during closing argument s, w h ic h ju r i es generally “vie[w] as the s t ate m ents of adv o c a tes” r a th erth an “a s def i niti v e and bindin g statements of the law,” Boy d ev. Californi a , 494 U. S. 3 70, 3 84 ( 199 0) , an d wh ic h , as a wh ole, made c l earth a tth e St ate sou gh t a g u iltyv e r d ic t basedsolely onSar a u s ad’ s “kn o wledg e th at h i s as sist an c e wou l d promote or fa cilitate the cri me of pr emed itate dmurder,” App. 83; se e also id., at 123 –12 4.16 WADDINGTON v. SARAUS AD Opinion of theCourt 

### arguing that it was the “failu re to remedy” this confusion that sets this case apart from previous d e cisions and establishes that the jury lik ely “did not understand ac

complice liability” whe nit returned its verdict. Brief for Respondent 29, 31. B u t this Court has determined that the Constitution generally re quires nothing more from a trial judge than the type of answers given to the jury here. Week s , 528 U. S., at 234. Where ajudge “respond[s] to th e jury’s ques t ion by directing its attention to the precise paragra p h of the con s titutionally adequate instructio n that answers its inquiry,” and th e jury asks no followu p question, t h is Court has presumed that the jury ful l y understood the judge’s answer an d appropriately applied the jury ins tructions. Ibid. Under this establishedstandard, it was not objectively unreasonable for the state court to conclude that Sarausad’s jury receive dthe answers it needed to resolve its confusion. 7

### Its questions were s p aced throu ghout seven

——————

7 The dissent a r g u es that we “side s te[p] the thr u st of thi s r e c o r d” by finding that t h e trial ju dg e’ s an sw er s t o th e jury’s questions wer e sati sfac tor y . Post , at 9–10. Bu t ou r dec i sionc a n n o t turnon a denov o review of the record or a finding th at the answers were “the best way to answer jurors’ questions,” id ., at 10. Onfeder a l h abe as r e v i ew, th i s Court’s inquiry is limited t o whethe r thestate court violated clearly esta bli s hed federal law when it held thatthe jury applied the correct standard, in li ght of the ans w ers give n to its ques tions. See 28 U. S. C. §225 4(d)(1). Onth at is su e, th e s t a t e court wa s not objectively unrea

sonable; the jury’s question s wereanswered in a manner pre v iously appr ov ed bythis Cour t, and theyc o nsistently referredthe jury to t h e corre cts t a n dard for a ccom p lice liabilit yin Wa s h ingt on. The dis s e nt also ignores t h e importantfact thatthe jury convi c ted Ronquillo o f first-degree murder, convi c ted respondent of second- d egree murde r , an d faile d to r e ac hanag r eemen t onRey e s’ g u ilt, c a u s in ga mi str i a lo n the first-degree murder charge pend in gag ain s th i m. Th e ju r y ’ s a s sig n ment of c u lpabil i tyto t w o of the c o defendants, v e r s us its de adloc k over a third who, like resp ondent, co nce d ed knowledge of an assaul t, demonstr ate s that the jur yunder stoodthe legal signifi c ance of each defendant’s relative knowledge and in tent with r e spec t to the mur d er.17 Cite as: 55 5 U

. S. ____ (2009) Opinion of theCourt 

### days of deli berations, involv ed different criminal charges, and implicated the interrelation of several different jury instructions. The jud g e pinpointed his answers to th e particular i n structions responsive to the qu estions and those instr u ctions reflected state law. Under these cir

cumstances, the state court did not act in an objectivel y unreasonab le manner in finding that the ju ry knew the proper legal standard fo r conviction

. III Because the state-court decision did not re sult in an “unreasonable application of .

. . c l early established Fed

eral law,” 28 U. S. C. §2254(d)(1 ), the Court of Appeals erred in granting a writ of habeas corpus to Sarausad. The judgment below is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so orde red._________________

_________________ 1 Cite as: 55 5 U

. S. ____ (2009) S OUTER , J., dis s e nting 

# SUPREME CO URT O F THE UNI TED STATES

No. 07–7 72 

### DO UG WADDIN G T O N, SUP ERI NTEN DE N T ,

WASHIN GTON CORR ECTIONS CENT ER, PETITIONER v. C E SAR SARAU S AD ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEAL S FOR THE NINT H CIRCUIT [Jan u a r y21, 2009] 

### J USTICE 

### S OUTER 

### , wit hwhom J USTICE 

### S T EVEN S 

### and J USTICE 

### G IN S B UR G

### join, dissentin g. The issue in this habeas case is whether it was objec

tively reasonable for th e state court to find that there wa s no reasonab le likel ihood thatthe jury convi cted respon

dent Cesar Sarausad on a mis t aken understanding of Washington law. The underlying question is whether the jury may h a ve thought it could find Sa rausad guilty as a n accomplice to murder on the theory that he assisted in what he expected woul d be a fistfight, or whether the jur y knew that to convicthim Washington law required it to conclude Sarausad aided in wha the understood was i n tended to be a killing. So far as t h e instructi ons addressed these alternatives, the judge c harged the j u rors in these words: “A person is an accomplice in t h e commission of a crime if, with knowledge thatit will promote or facili

tate the commission of the crime, he or she either: “(1) solicits, commands, encourages, or request s an other person to commit the crime or “(2) aids or agrees to aid another person in plannin g or committing the crim e .” App. 17. The majority answers the underlying question by rely

-2 WADDINGTON v. SARAUS AD S OUTER , J., dis s e nting 

### ing on the general rule that incorporating a clear statut e into a jury charge almost always produces an adequate instruction, which the jury is assumed to follow. The kicker of co urse is that the ge neral rule is on l ygood if the incorporated statute is clear enough to require the jury to find facts amounting to a violation of the la w as correctl y understood. Does the ru le apply he re? The m a jority sa ys it does. I t says the instruction quoted is unambiguous because it parrots the language of the Washi n gton statute on accom

plice liabili ty, an te , at 11, and th at “[i]t is i m possible t o assign any meaning to this instruction” and, b yextension, the statute, “different from the meaning givento it by the Washington courts,” ibi d

. That is not , however, what the record shows. Rather than a single understanding, the Washington courts have produced a record of discordant positions on t h e meaning of the statute, and the Washington Court of Appeals can itself attest to a de gre e of difficulty in understanding the statutory requirementsufficient to show the statute to b e ambiguous and the statute-based instruction constitution

ally inadequate: that court read the statute to mean ju st the opposit e of what the majority now claims it unambigu

ously requires. On Sa rausad’s direct a p pealin 1998, the State Court of Appeals se t out the principles on which it understood accomplice liability in Washington to be premised. It did not say tha tthe acco mplice must understa n d that he is aiding in th e commiss ion of th esa me offens e the principal has in mind, or the offense actually committed. Instead, the Washington Court of Appeals said this: “(1) To convict of acco mplice liability, the St ate need not prove that principal and accomplice sh ared the same ment al state, (2) a ccomplice liabi lity predicates criminal liability on general knowledge of a crime,3 Cite as: 55 5 U

. S. ____ (2009) S OUTER , J., dis s e nting 

### rather than specific kn owledge of the elements of the principal’s crime, and (3) an accomplice, having agreed to p a rticipate i na criminal activity, runs the risk that the primary actor will exceed the scope of the preplanned illegality.” Washin gto nv. Ronquillo , No. 35840–5–I etc. (Mar. 2, 1998), Ap p. to Pet. for Cert. 233a, 258a– 259a. In support, the court cited Sta t e v. Davis , 1 01 Wash. 2 d 654, 682 P. 2d 883 (1984), in which the Supreme Court of Washington noted that “an accomplice, havin g agreed to participate in a criminal act, runs the risk of having the primary a c tor exceed the scope of the preplanned illegal

ity.” Id. , a t658, 682 P. 2d, at 88 6. As today’s majority notes, ante , at 6, the state appellate court re marked tha t the Washi n gton law of accompli ce liabi lity (as it then understood it) “ ‘has been reduced to the maxim, “in for a dime, in for a dollar” ’ ”; the court also held that “it was not necessary for the Stat e to prove Sarausad .

. . knew th at there was a potential for gunplay that day. ” Washin gton v. Ronquillo , supra , at 235a, 266a. So mu ch for the majo r ity’s confidence that th e stat ute-based instruction can only be understood as requiring wha tthe State Su preme Court now says it requires: proof that the accomplice understood that he was aiding in the commission of the v e ry crime h e is charged with facilitating. The State S u preme Court clarified this requirement two years after the Court of Appeals held against Sarausad. In State v. Roberts , 14 2 Wash. 2d 471, 14 P. 3d 713 (2000), the Supreme Court of Washington held that t h e Court of Appeals’s “in for a dime, in for a dollar” view of accomplice liability was a misrea ding of the statute and a flat-out misstateme n t of law. In Roberts , the State Supreme Court revisited Davis , whichit explain e d as stan ding for th e principle “that an accomplice need not have specific k n owledge of every ele m entof the crime com m itted byt h e4 WADDINGTON v. SARAUS AD S OUTER , J., dis s e nting 

### principal, provided he has general k n owledge of that specific crime.” 142 Wash. 2d, at 512, 14 P. 3d, at 736

. Although a “general k n owledg e” of “that specific crime” intended by a confederate andeventually committed will suffice for the mental element of a ccomplice liability, mere “knowledge by the ac co mplice thatthe princip a l intends to commit ‘a crime’ does not im pose strict liability for any and all offenses that follow.” Id. , at 513, 14 P. 3d, at 73 6. In other wo rds, it was incorrect to read the st atute as th e Supreme Court of Was h ington had arguably done in Davis (and the St ate Courtof Appeals ce rtainly didin this case) , to mean th at anyone who agrees “to participate in a crimi

nal act .

. . runs the risk of [accom p lice liability for a more serious cri me if] the primary actor exceed[s] the scope of the preplanned illegalit y,” 101 Wash. 2d, at 658, 682 P. 2d, at 886. Th e reductive maxim “in for a dime, in for a dol

lar” was now understo o d to be a d i stortion of Washington’s accomplice liability law. The Washi n gton Court of Appeal s said as much whe n Sarausad appeared before it the second time, seeking postconvicti on relief: “[Saraus ad] points out, and correctl y so, that this court decided [his dir e ct] appeal on the prem

ise that ‘in for a dime, in fo r a dollar’ cor r ectl y charac ter

ized Washi n gton acco mplice liabi lity law. W e said that ‘an accomplice, “having ag r eed to participate in a c r iminal act, runs the riskof having the primary actor exceed the scope of the preplanned illeg a lity.” ’ ” Sa ra usa d v. Washin gton , 109 Wash. App. 824, 833–834, 39 P. 3d 308, 313 (2001)

. The Court of Appeals said that it had “erred” in determin

ing thatit was unn ecessary for the Stat e to prove Sarausad knew he was facilit ating a drive-by shooting. Id ., at 837, 39 P. 3d, at 315. This profession of judi cial error in understanding the law is the touchmark not of a clear statute, but of an indistinct or perplexing one, which the law calls ambigu

ous. The majority is thus unquestionably mistaken in5 Cite as: 55 5 U

. S. ____ (2009) S OUTER , J., dis s e nting 

### finding it “impossible to assign a n y meaning to [the in

struction q u oting the statute tha tis] different from th e meaning” the majority thinks is clear. Ante , at 11. Given that error on the majority’s pa rt, it has notjustified it s reversal of the Ninth Circuit by s h owing tha tthe instru c tion was clear.* There remains the question whether the majority’s second conclusionis a l so unjustifiable: despit e inadequat e instruction, did the jurors ne vert heless apply the correct view of stat e law, which only recently, and af ter the trial, attained its current clarity? The state postco nviction cour t found no r e asonable likelihood t hat the jurors failed t o apply a co rrect unde r standing of accomplice liability, Sarau s ad v. Washin gt on , supra , at 843–844, 39 P. 3d, a t 318–319, a n d Sarausa d ’s burden here (on federal habea s )

——————

* As the major i tynotes, ante , at 11, n

. 4, inth e Wash ing t onCou r t of Appea l s on directreview, S a ra us a d ’s cou n s e l cla i m e d t h a t s t at e law required that an accomplice to murderhave a specific intent to kill (or aid inkilling). The Court of Appeal s reject ed this posi tio n . Contrary to the major i ty v i ew, ante , at12, n

. 4, in g a u g in g th e adequ a c yof an ins t ruct ion inc o rpora t ing s t at ut ory t e rm s , t h e fa ctt h a tdefens e couns el may have asked for too much does no thi n g to lessen the pertinence of opaque state l a w or its unc er taintyin the minds of the state judges. The Court of Appea l s in its very res p ons e to couns el’s a r gument demon

str a tedit s mi su n d er stan din gof th e scop e of Washington accomplic e liab ility law: “accomplice lia bili ty predicates crimi nal li abil i ty on general knowl e dge of a crime.” Washingto n v. Ronquillo , No. 35 840 –5 – I etc

. (M ar . 2, 199 8), App. to Pet. forCer t . 233 a, 25 9a (e mph a si s adde d). Forthat m a tt er , the Cour t of Appeal s subsequently disavowed the very sta t ement use dbythe m a jo r i tyto su ppor tits c o ntentionthat the c o ur t w a s foc u sed s o lelyonth e i ssu e of sp ecifi cintent. The court, in the postconviction proceedings, concluded t h a titwas in fa c tneces s a ry for the St ate to p r ove Sarausadknew Ro nquillo had a gun, or knew there wa s pot e nt ia l for gu npla y t h a tda y. Sarausad v. Was h i n g t o n , 10 9 Wash . App. 8 24, 8 37, 39 P. 3d 3 08, 31 5 ( 2 001). Th is kn owledg e wou l d have b een neces s a ry rega rdles s of whet her t h e la w required S a ra us ad to have specif ic or general intent to ki ll, unless, of course, accomplice liab ility wa s p r edicated on a n“in for a di me, in for a d o llar” theory of liab ility and knowledge of a fistfight could suffice.6 WADDINGTON v. SARAUS AD S OUTER , J., dis s e nting 

### is to demonstrate tha tthe state court was objectively unreasonab le in dra w ing this conclusion, 28 U. S. C. §2254(d)(1). The District Co urt and the Ninth Circuit found he had done just that, whe r eas the majority toda y insists those courts were wrong. The majority’s position is simply unrealistic. Even a juror with a preternatural grasp of the statutory subtlety would have lost his gri p after listening to the prosecutor’s closing argument, whi c h first addressed the state law of accomplice liability with a sta t ement that was flatout error, followed tha t with a co nfus ing argume nt that coul d have reflected either the corrector the erroneous view, and concluded with an argument t hat could have fit either theory but ended with a phrase defined to express the erroneous o n e. In her first pass at t h e subject, the prosecutor said unequivocally that ass aultive, not murderous, intent o n Sarausad’s part would suffice for the intent required of an accomplice to murder. “Let me give you a good example of accomplice liabil

ity. A frien dcomes up to you and says, ‘Hold this per

son’s arms while I hit him.’ You say, ‘Oka y, I don’t like that person, anyway.’ You hold the arms. The person not only gets as saulted, he gets killed. You are an accomplice and you can’t come back and sa y, ‘Well, I only intended this much dama ge to happen.’ Your presence, your readiness to assist caused the crime to occur and you are ana ccomplice. The law in the State of Washington says, if you’re in f o r a dime, you’re in for a dollar. If you’re t h ere or even if you’re not ther e and you’re helping in some fashion to bring about this crime, you are just as guilty.” App. 38. Thus, in what the majority would launder into “one prob

lematic hypothetical,” ante , at 15, the prosecutor intro

duced the “ i n for a dime, in for a dollar” locution, which7 Cite as: 55 5 U

. S. ____ (2009) S OUTER , J., dis s e nting 

### she definedto mean that readiness to aid in the commis

sion of any crime thought to be intended by the principal is enough intent for accomplice liability for whatever crime the p r incipal act ually commits. This l e ad-off mis

statement of the law, never cor r e cted by th e trial judg e, infects every further statement bearing on accomplice law the prosecu t or made, f o r into eac heffort she consistently introduced the viral ca tchphrase “ i n for a di me, in for a dollar.” In a second reference t o accomplice law, the prosecuto r discussed gang mentality and us ed the phrase, without modifying her earlierexplanation of its legal meanin g , then followed up wi tha referenc e to the ev idence that could have fit either the erroneous theory or the law as corrected b y Roberts: “Mr. Sarau s ad [was] p r esent and .

. . certainly read y to assist. And I remind you, too, what you heard not only from .

. . the gang expert in this case, but from [gang] mem b er after [gang] member who told you tha t an affront to one is an affront to a ll, ‘When you disre

spect me you disrespect my gang. ’

. . . “They were all there that day .

. . ready to back each other up in whatever happened. In for a dime, they were in for a dollar and theywere sticking together. “ . . . You know, the best indication of what was go

ing on justbefore the shooting is gleaned by what happened immediately after the fact. .

. . Nothing [was] said to the [gunman], because there was nothing to say. Nobody asked him why he did it. They all k n ew. The yall k n ew what they were there for. An af

front to one is an affron t to all.” App. 40–41. The confusion of the correct and erroneous t h eories of liability showed up agai n in the prosecutor’s final rebuttal: “Mr. Sarau s ad’s lawye rsays that an accomplice has to have the same mental state as the person doing the8 WADDINGTON v. SARAUS AD S OUTER , J., dis s e nting 

### shooting.

. . . Not t r ue, not true. And tha t ’s not wha t the instruct ion says. “And I’ve told you the old adage, you’re in for a dime, you’re in for a dollar. If their logic was correct, they’re not ever an accomplice to anything. The get

away driver for a bank robbery would say, ‘I just told him to rob t h em, I didn’t tell him to shoot him, I didn’t do anything.’ The example I gave you earlier, ‘I just told my friend to hold the arms down of this person while he hi t him, I didn’t tell him to kill him, I’m not guilty of an ything.’ If you’re in fo r a dime, you’re in for a dollar. “When they rode down to Ballard High S c hool that last time, I say they kn ew what th ey were up to. They knew they were there to commit a crime, to disrespect the gang, to fight, to shoot, to get t hat respect back. A fist didn’t work, push ing di dn’twork. Sho u ting in

sults at th em didn’t work. Sho o ting was going to work. In for a dime, you’re in for a dollar.” Id. , a t 123–124. In the pros ecutor’s jumble of rul e s, oneproposition is both clear and cl early erroneous: the statement of law, “in for a dime, in for a dollar.” It unmistakably contradicts th e constructio nfor which Saraus ad’s counsel correctly ar gued, whic h would have required the juryto find that Sarausad understood that the object was killing in order to find him guilty as anaccomplice to murder. Id ., at 83– 84. The point here is notto excoriate the prosecutor, wh o tried this c a se in the period between Roberts and Dav i s and could fairly assume that her expansive (“in for a dim e . . .”) view of accomplice liabi lity was good law in her State. The point is just the obvious one that cannot be evaded without pla y ing make- b elieve with the record: an uncer

tain instru ction by th e trial jud g e was co mbined wit h9 Cite as: 55 5 U

. S. ____ (2009) S OUTER , J., dis s e nting 

### confounding prosecutorial argument incorporating wha t the state co urts now ack n owledge was a clearly-erroneous statement o f law, in co ntrast to the view of th e law argued by defense counsel. In these circumstance s juryconfusion is all but inevitable and jury error the reasonable likelihood. If there were any doubt about that, one cou l d simply look at the record of th e jury’s deliberations, in the course of which th e jurors repeatedly asked the co urt to clari f y the law on accomplice liability. They began deliberating on Friday, October 21, 1994, andthe following Tuesday, they asked (as to the instructions laying out the crime of first-degree murder and the required premeditation), “does the ‘intent’ appl y to (the defendant only) or to (the defendant or his accomplice)?” App

. 126. The judge re plied, “Refer to instructions 46 and 47 and consider your instructions as a whole.” Ibid

. Three days later, Octobe r 28, this time in reference to the second-degree murder instructions, the jury enquired a second ti me about ac complice liability, asking whether “intentional appl[ies] to only the defendant or only his accomplice?” Id ., at 128. The judge’s response w a s nearly identical to his first one: “Refer to instructions 45 & 46 and consider the instruc

tions as a whole.” Ibid. The foll owing Monday, the jury returned to deliberations and requested help yet again, spelling outits confusi o n: “We are having difficulty agree

ing on the l e gal definit i on and con c ept of ‘accomplice.’ .

. . [W]hen a p e rson willin g[ly] participates in a group activ

ity, is that person an accomplice to any crime committed by anyone in the group?” Id ., at 129. Once again, the judge sent t h e jurors back to the written cha r ge: “Refer to instructions .

. . 45, 46, 47, and 48 and consider your in

structions as a whole.” Ibid

. The majority sidesteps the thrust of this record by sug

gesting tha tthe jurors failed to let the court know of an y confusion: it says the j u rors ’ questions “involv e d different10 WADDINGTON v. SARAUS AD S OUTER , J., dis s e nting 

### criminal charges, and implicated the int e rrelation of several different jury instructions.” Ante , at 17. But this simply ignores the disclosure ob viously common to all those quest ions: the ju rors did not understand the state o f mind the prosecution h a d to prove for accomplice liabi lity. Their final question m a kes this unmistakable. The majority says, in any case, that the judge’s repeated references back to the writte n instructions were enough and that “it was not objectively un reasonable for the state court to co nclude that[the] jury received the answers it needed to resolve its confusion.” Ante , a t16. But afte r th e jurors aske d three tim e s? In many trials, r e ference back to written instructions would be t h e best wa y to answer jurors’ questions, which may reflect uncertain memory , not deficient instructio n . But not in this case: the accom

plice liability instructio nwas defective owing t o the ambi

guity of the statutory languag e it incorporated, and i t s deficiency was underscored bythe prosecutor’s erroneous argument. Telling the jurors to read an i nadequate in

struction th ree more times did nothing to improve upon it or enlighten the read ers. The DistrictCo urt and th e Ninth Circu it drew the only conclusion reason ably possible on this record. I respectfully dissent.