Appeal from the United States District Court for the District of Utah (D.C. No. 2:07-CR-00886-DAK-1)
The opinion of the court was delivered by: Ebel, Circuit Judge.
United States Court of Appeals
Elisabeth A. Shumaker
Clerk of Court
Before KELLY, BALDOCK, and EBEL, Circuit Judges.
Defendant-Appellant Justus Rosemond appeals his conviction for using a firearm during a federal drug-trafficking offense. The United States charged Rosemond with that offense under alternate theories, alleging that he was the principal (i.e., the person who fired a gun during a drug transaction) and, alternatively, that he aided and abetted a cohort who fired the weapon. Having jurisdiction under 28 U.S.C. § 1291, we conclude that the trial court properly instructed the jury on these alternate theories and that there was sufficient evidence to support the jury's guilty verdict. We, therefore, affirm Rosemond's conviction.
Viewed in the light most favorable to the Government, see United
States v. Burks,
678 F.3d 1190, 1197 (10th Cir. 2012), the evidence at trial
established the following:
Vashti Perez brokered a deal for the sale of one pound of marijuana.
The deal was to
occur in a park in Tooele, Utah. The sellers were two males from
Justus Rosemond and his cohort, Ronald Joseph. Joseph was the nephew
boyfriend. The buyer was a local Tooele resident, Ricardo Gonzales.
Just before 9:00 p.m. on August 26, 2007, Perez drove Rosemond and
the park, where they met Gonzales. Gonzales was accompanied by Cory
Gonzales got into Perez's car with Perez, Rosemond, and Joseph, while
nearby, but outside the car.
Although Gonzales told Perez that he was interested in buying the marijuana, he actually did not have enough money to do so. Instead, he planned to steal the drugs. At some point during the transaction, then, Gonzales punched Rosemond in the face, grabbed the marijuana and ran from Perez's car. Painter, who was aware of Gonzales' plan, also ran, but in the opposite direction from Gonzales. The occupants of the car jumped out and one of them pulled out a nine-millimeter handgun and fired nine or ten shots at the fleeing Gonzales.
Gonzales and Painter got away. Perez, with Rosemond and Joseph, gave
the car. Their chase was soon thwarted, however, when a state
trooper stopped them
because their vehicle matched the description of the car involved in
the shooting, which
bystanders had reported to police. With Perez's consent, the trooper
searched her car but,
finding no weapon, eventually let the three go. According to Joseph,
the trooper did not
find the gun because Rosemond had hidden it under the back seat of
At trial, every witness but one testified that they did not know
who shot at
Gonzales. Onlookers, as well as Gonzales and Painter, testified only
that someone from
the car fired the shots. Perez testified that it was either Joseph
or Rosemond. But Perez
had given police a written statement a few days after the incident,
as the shooter. And Joseph testified at trial that Rosemond was the
The United States charged Rosemond with four offenses: 1)
marijuana, with the intent to distribute; 2) using and discharging a
firearm during a
federal drug-trafficking offense; 3) being a previously convicted
felon in possession of
ammunition; and 4) being an alien unlawfully in the United States in
ammunition. The jury convicted Rosemond of all four offenses. The
sentenced Rosemond to forty-eight months in prison on Counts I, III,
and IV, to run
concurrently, and 120 months on Count II, to run consecutively to the
other sentences, for
a total of 168 months in prison.*fn1 On appeal, Rosemond challenges
only his conviction on Count II.
Count II specifically charged that Rosemond, "during and in relation to the drug trafficking offense set forth in Count I [possessing marijuana with the intent to distribute it], did knowingly use, carry, brandish and discharge a firearm, to wit, a 9mm handgun, and did aid and abet therein; in violation of 18 U.S.C. § 924(c)(1)(A) and 18 U.S.C. § 2." (R. v.1 at 18.) 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 and 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, ...