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United States of America v. Justus Cornelius Rosemond

September 18, 2012

UNITED STATES OF AMERICA, PLAINTIFF - APPELLEE,
v.
JUSTUS CORNELIUS ROSEMOND, DEFENDANT - APPELLANT.



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 Tenth Circuit

PUBLISH

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.

I. BACKGROUND

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 out-of-town, Defendant Justus Rosemond and his cohort, Ronald Joseph. Joseph was the nephew of Perez's boyfriend. The buyer was a local Tooele resident, Ricardo Gonzales. Just before 9:00 p.m. on August 26, 2007, Perez drove Rosemond and Joseph to the park, where they met Gonzales. Gonzales was accompanied by Cory Painter. Gonzales got into Perez's car with Perez, Rosemond, and Joseph, while Painter waited 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 chase in 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 Perez's car. 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, identifying Rosemond as the shooter. And Joseph testified at trial that Rosemond was the shooter. The United States charged Rosemond with four offenses: 1) possession of 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 possession of ammunition. The jury convicted Rosemond of all four offenses. The district court 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.

II. 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, ...


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