[A] person who actively participates in a criminal scheme knowing its extent and character intends that scheme’s commission.
Rosemond v. United States
Defendant was in a car with two others to sell a pound of marijuana. The buy got in the car, was allowed to inspect the marijuana, punched the person in the backseat, and fled with the drugs. One of the passengers then got out of the car, fired several shots from his handgun at the thief, and reentered the vehicle. They gave chase, but police soon pulled them over and arrested them.
Defendant was convicted of using a gun in connection with a drug trafficking crime.
Defendant was probably using the gun himself, but even if he was not, he aided and abetted the crime.
Did defendant intend to facilitate the use of the gun?
An active participant in a drug transaction has the intent needed to aid and abet the use of a gun in connection with a drug trafficking crime when he knows that one of his confederates will carry a gun. If one knows ahead of time that his confederate will have a gun and still joins in the scheme, he is aligning himself with the plan in its entirety, including the use of the gun. A criminal should not be able to hedge his bets by leaving use of a gun to another while still participating in the dangerous scheme.
However, it is required that one know in advance of his confederate's activity. Just learning of it during his commission of the crime is not sufficient. Thus, the jury instructions were erroneous in telling the jury to consider merely whether defendant "knew his cohort used a firearm."
Defendant intended to facilitate the use of the gun if he knew beforehand that the shooter had a gun. Vacated and remanded.