Tooele Transcript Bulletin – News in Tooele, Utah

March 6, 2014
U.S. Supreme Court ruling involves drug deal at Tooele City park

Tooele City is at the heart of a new U.S. Supreme Court ruling about whether a man who sold drugs at a city park in 2007 knew a gun might be used when things went wrong — and when he knew it.

Justus Rosemond was federally charged in 2008 for the August 2007 incident in which he and another man attempted to sell a pound of marijuana in a Tooele City park. When the deal went downhill, Rosemond and the other man fled the scene in a car, and someone shot a gun back towards the park from the car. Law enforcement caught up with the car shortly after and Rosemond and the others were arrested.

In U.S. District Court, Rosemond was charged with and convicted of possessing marijuana with intent to distribute; using and discharging a firearm during a federal drug-trafficking offense; possession of ammunition by a previously convicted felon; and possession of ammunition by an alien unlawfully in the United States.

The other four people involved were not charged in exchange for their testimonies against Rosemond. Rosemond is currently in the process of serving his federal prison sentence.

In appeals court, however, Rosemond contested his conviction of the second offense — using and discharging a firearm during a federal drug-trafficking offense — and more specifically, the instructions the federal judge gave to the jury as the trial concluded.

According to the Supreme Court’s opinion, released Wednesday, the judge told the jury it could convict if “(1), the defendant knew his cohort used a firearm in the drug trafficking crime, and (2) the defendant knowingly and actively participated in the drug trafficking crime.”

Little was in dispute about Rosemond’s participation in the drug trafficking crime, but his knowledge of the use of a firearm, which enhanced the severity of the charge, was disputed.

During the trial, prosecutors argued that Rosemond’s mere involvement with this particular crime more than fulfilled the charge of aiding and abetting a federal drug crime in which a firearm was used.

“[Rosemond] certainly knew [of] and actively participated in [the drug transaction],” the prosecutor was quoted in the opinion as saying in his closing arguments. “And with regards to the other element, the fact is a person cannot be present and active at a drug deal when shots are fired and not know their cohort is using a gun. You simply can’t do it.”

Rosemond argued that the instructions given to the jury did not allow them to find him not guilty of that charge because, although he knew that a gun was used, he did not necessarily want the weapon to be used.

In a 19-page majority opinion, in which Chief Justice John Roberts and Justices Stephen Breyer, Ruth Bader Ginsberg, Elena Kagan, Anthony Kennedy and Sonia Sotomayor were joined, the court stated that although Rosemond had clearly known about the weapon used by the time shots were fired, the instructions did not ask the jury to consider if he had known about it early enough to either drop out of the drug deal or convince his partner to not use a weapon and continued with the crime despite knowing the gun might be used.

“When an accomplice knows beforehand of a confederate’s design to carry a gun, he can attempt to alter that plan or, if unsuccessful, withdraw from the enterprise; it is deciding instead to go ahead with his role in the venture that shows his intent to aid an armed offense,” the opinion states. “But when an accomplice knows nothing of a gun until it appears at the scene, he may already have completed his acts of assistance; or even if not, he may be at that late point have no realistic opportunity to quit the crime. And when that is so, the defendant has not shown the requisite intent to assist a crime involving a gun.”

The court continued, “For the reasons just given, we think that means knowledge at a time the accomplice can do something with it — most notably, opt to walk away.”

Whether Rosemond was comfortable with the idea of a gun being carried and potentially used during the drug deal is immaterial, the opinion states.

“The law does not, nor should it, care whether he participates with a happy heart or a sense of foreboding. Either way, he has the same culpability, because either way he has knowingly elected to aid in the commission of a peculiarly risky form of offense,” it states.

In the 6-1-2 split decision, Justice Antonin Scalia joined with the opinion with the exception of two footnotes, while Justices Samuel Alito and Clarence Thomas concurred the first 12 pages of opinion, and dissented the remaining seven pages of opinion. The chief dispute of the dissension was about a hypothetical situation put forth in the majority opinion about how the law could be applied, arguing that it could muddy the factor of criminal intent in future cases.

As per the Supreme Court’s decision, the case will be handed back to the 10th Circuit Court of Appeals for a review. Melodie Rydalch, spokeswoman for the U.S. Department of Justice, said the decision does not negate Rosemond’s conviction or sentence — which would be for that one count only, and would not impact the other three — but rather just suggests that the lower court re-examine the ruling and whether the wording of the judge’s instructions to the jury could have changed the outcome of their findings.

“They didn’t vacate his conviction or order a new trial; it’s just remanded back to the 10th Circuit for further proceedings,” she said. “They basically remanded it back to the 10th Circuit to make a determination to consider whether this error was forfeited or harmless.”

Lisa Christensen

Staff Writer at Tooele Transcript Bulletin
Lisa covers primarily crime and courts, military affairs, Stansbury Park government and transportation issues. She is a graduate of Utah State University, where she double-majored in journalism and music, and Grantsville High School.

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