The Supreme Court made a ruling in the Rosemond v. U.S. case on March 5 that concerns how accomplices in 924(c) drug and gun cases are sentenced.

What was the issue?

The question the Rosemond case raised was: what does the Government have to prove to convict someone of aiding and abetting under 924(c) (use of a firearm in a crime of violence or drug trafficking)? Does the Government need to prove that an accomplice “acted intentionally to facilitate and encourage” the use of a firearm, or is it enough to prove that an accomplice knew a firearm was used? In plain terms, in one scenario, one might help another commit a crime knowing that a gun would probably be used in its commission. In another scenario, one might help another commit a crime and then, unexpectedly, a gun appears. Are those two scenarios different in the view of the law?

What happened?

In the Rosemond case, Mr. Justus Rosemond and two associates were making a drug sale that went bad; their buyers ran away with the drugs without paying. As Mr. Rosemond and his associates chased them, one of the three fired a gun at the thieves. Those involved were not consistent in their witness concerning whether Mr. Rosemond or one of his associates had fired the gun. Thus, when the Government brought charges against Mr. Rosemond, they charged him with (among other things) possessing and firing a gun as part of a drug trafficking crime either because he had fired it (under 18 U.S.C. Section 924(c)) or because he had aided and abetted the crime. (Under 18 U.S.C. Section 2, one who aids and abets is liable for the same punishment as one who committed the crime — in this case, the one who fired the gun.)

During Mr. Rosemond’s trial, the jury was not required to decide whether Mr. Rosemond had fired the gun or had aided and abetted the person who fired the gun. The jury was instructed that it was enough to find that “(1) the defendant [Rosemond] knew his cohort used a firearm in the drug-trafficking crime, and (2) the defendant knowingly and actively participated in the drug-trafficking crime.” The jury convicted Mr. Rosemond on all counts, and the count for the firearm got him ten years on top of the sentence for drug trafficking.

Mr. Rosemond appealed on the grounds that it was not enough for the Government to show that he “knew his cohort used a firearm” (as in (1) above), but that the Government had to show that he “knowingly and actively participated” in the firing of the gun, not just in the drug deal.

What did the Supreme Court say?

The Supreme Court ruled (7-2) that, for Mr. Rosemond to have been convicted of aiding and abetting a 924(c) violation, the prosecution needed to prove that Mr. Rosemond had advance knowledge that “one of his cohorts would be armed.” In order to aid and abet a crime, one must intend that the crime be committed, so the prosecution had to show that Mr. Rosemond intended (or, in other words, “intentionally facilitated and encouraged”) the use of the gun. Hence, during Mr. Rosemond’s trial, the judge should have told the jury to decide not just whether Mr. Rosemond knew a gun was used but also whether Mr. Rosemond “knowingly and actively participated” in the use of the gun, not just the drug deal. This reasoning holds that it is more fair to an accomplice to determine whether they had a chance to quit the crime upon learning a gun would be involved. (After all, as soon as the gun was fired, Mr. Rosemond knew there was a gun involved, but if he had not known there was a gun involved before it was fired, he had gotten involved in a bigger crime than he had bargained for.)

Whom does it affect?

This ruling affects defendants charged with aiding and abetting a violation of 924(c). That is, if someone was an accomplice to a crime of violence or drug trafficking involving a firearm, and if that accomplice can argue that they did not know a firearm would be involved and did not have a chance to withdraw from the criminal act(s) before they discovered the firearm, then the accomplice may be able to escape (or get overturned) a conviction for aiding and abetting a 924(c) violation.

If a defendant is charged with and convicted of a 924(c) violation — not aiding and abetting one, but actually having the gun in the commission of the crime of violence or drug trafficking — then this ruling will not help.

Is this retroactive? Does it affect people who have already been sentenced under 924(c) for aiding and abetting?

The Supreme Court did not explicitly make this ruling retroactive in the language of the opinion. However, we believe that this decision should be given retroactive effect because it is a substantive change to how the law was being interpreted and applied. Several Courts of Appeals were already ruling according to the standard that the Supreme Court applied in this ruling. (The Supreme Court likely granted a hearing to this case so that the Courts of Appeals would be consistent.)

If someone appeals their conviction for aiding and abetting a violation of 924(c) in a case when they did not know a firearm would be involved and did not have a chance to withdraw from the criminal act(s) before they discovered the firearm, the Court may decide in their favor. If the conviction is already final (meaning the direct appeal has been exhausted or the appeal period is past), then the avenue to seek relief is to file a 2255 motion to litigate the issue of retroactivity.

I think this affects my (or my loved one’s) case. What should I do now?

If you were charged as aiding and abetting a 924(c) violation, but your circumstances are similar to Mr. Rosemond’s, and if your case is not yet final, then speak to your attorney or call us at (512) 693-9LAW. (Go to our Contact Us page for more ways to contact us.)

(Your case is not yet final if you have not yet been sentenced or if you have a pending appeal. Alternately, if you have been sentenced, then you have ten days from your sentencing to make a direct appeal based on this ruling.)

If these circumstances apply to you and your case is final (i.e., you do not have a pending appeal), then you need to file a 2255 motion. You have a year from the Supreme Court’s ruling to do this, that is, until March 5, 2015 (but don’t push the deadline, as most attorneys like to have at least three months to adequately prepare).

Have an attorney experienced with post-conviction issues review your case to determine whether you should file. If you believe your case qualifies, or know someone who may have such a case, my email address is or call us at (512) 693-9LAW today!


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