                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                  May 7, 2014
                                    PUBLISH                   Elisabeth A. Shumaker
                                                                  Clerk of Court
                   UNITED STATES COURT OF APPEALS

                                TENTH CIRCUIT


 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,
                                                        No. 13-3037
 v.

 MARK R. DAVIS,

       Defendant - Appellant.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF KANSAS
                  (D.C. No. 2:11-CR-20020-CM-2)


Howard Pincus, Assistant Federal Public Defender, (Virginia L. Grady, Federal
Public Defender, Interim, and Warren R. Williamson, Federal Public Defender,
Interim, with him on the briefs) Denver, Colorado, for Defendant - Appellant.

James A. Brown, Assistant United States Attorney, (Barry R. Grissom, United
States Attorney, with him on the brief) Topeka, Kansas, for Plaintiff - Appellee.


Before KELLY, BALDOCK, and HARTZ, Circuit Judges.


KELLY, Circuit Judge.



      Defendant–Appellant Mark R. Davis was convicted by a jury of robbery, 18

U.S.C. § 1951 (Count 20), use of a firearm during a robbery, 18 U.S.C. § 924(c)
(Count 21), and being a felon in possession of a firearm, 18 U.S.C. § 922(g)

(Count 23). He was sentenced to 96 months’ imprisonment on the robbery count,

180 months’ imprisonment on the felon-in-possession count, consecutive to the

robbery count, and 84 months’ imprisonment on the use-of-a-firearm count,

consecutive to the other two counts, for a total of 360 months. I R. 105-106. He

also was sentenced to three years’ supervised release on each count running

concurrently. Id. On appeal, he challenges (1) the denial of his motion to

suppress evidence seized from a car in which he was a passenger, (2) the jury

instructions insofar as they allowed the jury to convict him of aiding and abetting

without the requisite knowledge or participation, and (3) sufficiency of the

evidence concerning a substantial effect on interstate commerce. Our jurisdiction

arises under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we affirm.



                                   Background

      On March 3, 2011, police were notified that someone just robbed the

RadioShack in Overland Park, Kansas. II R. 404-05. FBI agents later stopped a

gray Nissan Sentra on 71 Highway in Kansas City, Missouri, and arrested the

occupants—the driver, Abasi S. Baker, and the passenger, Mr. Davis. Id. at 98,

451-54. In the car, agents found clothing matching the description of the robbers,

a gun, and a bag containing $261, which was a little less than the amount stolen.

Id. at 456, 462, 469-72, 825. Mr. Baker and Mr. Davis were separately tried and

                                       -2-
convicted of robbery and firearms offenses. 1 How agents were able to locate the

car containing Mr. Davis is at issue in this appeal.

      The car belonged to neither Mr. Davis nor Mr. Baker but rather Mr. Baker’s

girlfriend, although Mr. Baker drove it also. Id. at 262-63. An investigation into

armed robberies around Kansas City, Kansas, in early 2011 led police to suspect

that the robbers were using the car owned by Mr. Baker’s girlfriend. On March 2,

2011, without a warrant, agents installed a Global-Positioning-System (GPS)

tracking device to the rear bumper of the car while it was parked at an apartment

in Kansas City, Missouri. Id. at 574-75. The day before, agents obtained a search

warrant to track the GPS signal given off by Mr. Baker’s cell phone. Id. at 678-

79.

      Around 7:20 p.m. on March 3, 2011, Special Agent John Hauger received

emails relaying GPS coordinates from the car and Mr. Baker’s phone. Id. at 688-

89. The coordinates put the car and phone in the area of 75th Street and Metcalf

Avenue in Overland Park, Kansas. Id. Agent Hauger called the Overland Park

Police Department and learned that, sure enough, the RadioShack at 75th and

Metcalf had been robbed at 7:18 p.m. Id. at 689. A scramble ensued. Using a

combination of GPS coordinates from the car and phone, visual observations, and

knowledge that Mr. Baker resided near 71 Highway, agents were able to locate


      1
         This court affirmed Mr. Baker’s conviction in a separate appeal. United
States v. Baker, 713 F.3d 558 (10th Cir.), cert. denied, 134 S. Ct. 784 (2013).

                                        -3-
and stop the car containing Mr. Baker and Mr. Davis. Id. at 486-92, 695-700.

         In police interviews, Mr. Davis confessed that he knew Mr. Baker planned

to rob the RadioShack. Id. at 579. Mr. Davis contended that Mr. Baker entered

the store while he remained in the car, id., and that he saw Mr. Baker pull a gun

from his waistband after exiting the RadioShack and re-entering the car, id. at

543. The government charged Mr. Davis with robbery, using or carrying a

firearm during a robbery, being a felon in possession of a firearm, and aiding and

abetting those offenses, 18 U.S.C. §§ 1951, 924(c)(1)(A)(ii), 922(g)(1), 2. I R.

42-46.

         In the district court, Mr. Davis moved to suppress the evidence found in the

car arguing that, under subsequently decided United States v. Jones, 132 S. Ct.

945 (2012), the warrantless attachment and use of the GPS device to locate and

seize the car violated the Fourth Amendment. I R. 50; II R. 89-90. The district

court denied Mr. Davis’s motion, finding that (1) the stop was legal because,

“even without the GPS” device on the car, agents had more than enough

information to locate the car and reasonable suspicion to stop it; (2) Mr. Davis

lacked standing to challenge the search of the car; and (3) agents attached the

GPS device to the car with the then-objectively reasonable good-faith belief that

their conduct was lawful. II R. 100-04.

         At trial, the government proceeded on the theory that Mr. Davis entered the

RadioShack and robbed it at gunpoint. II R. 1018-19, 1034. The defense

                                          -4-
contended that Mr. Baker entered the store while Mr. Davis remained in the car as

an unwitting accomplice, lacking knowledge of Mr. Baker’s plan to rob the store

and brandish a gun. Id. at 1024. The government maintained that, even if it was

Mr. Baker who entered the store, the evidence permitted the jury to find Mr.

Davis guilty of the robbery and firearms offenses as an aider and abettor. Id. at

1014, 1035. The district court instructed on the elements of each count in the

indictment. Doc. 142, at 12-14. It also instructed on aiding and abetting. Id. at

20. Specifically, the court informed the jury that, to be an aider and abettor, a

defendant must “consciously share[] the other person’s knowledge of the

underlying criminal act and intend[] to help him or her.” Id. Defense counsel did

not object to this instruction. II R. 1004-05.

      The jury returned a general verdict against Mr. Davis, convicting him of

robbing the RadioShack, using or carrying a firearm during that robbery, and

being a felon in possession of a firearm. I R. 91-92. While appeal was pending,

the United States Supreme Court decided United States v. Rosemond, 134 S. Ct.

1240 (2014), which addresses the elements of aiding and abetting a § 924(c)

offense.



                                     Discussion

A.    Motion to Suppress

      When reviewing the denial of a motion to suppress, we review questions of

                                         -5-
law, such as whether a defendant has standing to challenge a search, de novo.

United States v. DeLuca, 269 F.3d 1128, 1131 (10th Cir. 2001). Although the

district court offered three grounds for denying Mr. Davis’s motion, we need only

address standing. 2

      United Sates v. Jones settled that the attachment of a GPS device to a car,

and subsequent use of that device to monitor the car’s movements, is a “search,”

132 S. Ct. at 949, and that installing such a device without a warrant potentially

violates the Fourth Amendment. 3 As the party seeking suppression, Mr. Davis

must demonstrate that it was his Fourth Amendment rights that were violated in

this regard. See Rakas v. Illinois, 439 U.S. 128, 130 n.1 (1978). This is because

“Fourth Amendment rights are personal rights which . . . may not be vicariously

asserted.” Id. at 133-34 (quoting Brown v. United States, 411 U.S. 223, 230



      2
        Applying the good-faith exception of Davis v. United States, 131 S. Ct.
2419 (2011), several Circuits have held that, before Jones, it was objectively
reasonable for police to believe that warrantless GPS tracking did not violate the
Fourth Amendment. See United States v. Fisher, --- F.3d ---, 2014 WL 888522, at
*4 (6th Cir. Mar. 7, 2014); United States v. Ransfer, 743 F.3d 766, 777 (11th Cir.
2014); United States v. Aguiar, 737 F.3d 251, 262 (2d Cir. 2013); United States v.
Sparks, 711 F.3d 58, 63 (1st Cir. 2013); United States v. Andres, 703 F.3d 828,
835 (5th Cir. 2013); United States v. Pineda-Moreno, 688 F.3d 1087, 1091 (9th
Cir. 2012); but see United States v. Katzin, 732 F.3d 187, 206-10 (3d Cir. 2013),
reh’g granted and opinion vacated, No. 12-2548, 2013 WL 7033666 (3d Cir. Dec.
12, 2013). We need not decide the good-faith issue, as standing is a sufficient
ground to affirm the district court’s denial of Mr. Davis’s suppression motion.
      3
        The government contends that warrantless attachment and use of a GPS
device does not necessarily violate the Fourth Amendment after Jones. Aplee. Br.
29-30. We save this issue for another day.

                                        -6-
(1973)). Although this principle is often called “standing,” the idea that personal

Fourth Amendment rights must be at stake “is more properly subsumed under

substantive Fourth Amendment doctrine.” Id. at 139; United States v. Erwin, 875

F.2d 268, 269 (10th Cir. 1989). Thus, whether a Fourth Amendment violation

occurred turns on “whether a passenger of a vehicle has sufficient Fourth

Amendment interests to challenge a traffic stop of that vehicle.” Erwin, 875 F.2d

at 270.

      Standing is required regardless of whether the illegal search directly yields

the inculpating evidence or merely supplies the initial catalyst in a reaction

ultimately producing such evidence. As we have said, “the fruit of the poisonous

tree doctrine applies only when the defendant has standing regarding the Fourth

Amendment violation which constitutes the poisonous tree.” United States v.

Olivares-Rangel, 458 F.3d 1104, 1117 (10th Cir. 2006) (citing United States v.

Salvucci, 448 U.S. 83, 85 (1980)).

      Mr. Davis’s suppression motion presents a narrow question of law: whether

a passenger has standing to challenge the stop of a car when that stop is

predicated on information obtained from a prior search of that car. So framed, the

case presents a classic “fruit of the poisonous tree” scenario, where the poisonous

tree—the GPS device—bore tainted fruit—the seizure of the car (and Mr. Davis)




                                         -7-
and the discovery of the evidence therein. 4 Because Mr. Davis did not own or

regularly drive the car to which the GPS device was attached, it appears he lacks

a sufficient Fourth Amendment interest to challenge this derivative evidence. Mr.

Davis views the situation differently: at oral argument, his counsel identified the

“poisonous tree, with respect to Mr. Davis,” as the subsequent stop, not the initial

attachment and use of the GPS device. Oral Argument at 9:30, United States v.

Davis, No. 13-3037 (March 20, 2014). And because the stop resulted in a seizure

of his person, he argues that he may reach back and “contest the warrantless GPS

search to the extent it enabled the police to effect the stop of the Sentra.” Aplt.

Br. 32.

      We disagree. The warrantless attachment and use of the GPS device was

the Fourth Amendment violation—the poisonous tree—that allowed agents to

locate, stop, and seize evidence from the car in which Mr. Davis was riding—the

tainted fruit. 5 On appeal, Mr. Davis does not allege a possessory interest or

      4
         Mr. Davis’s counsel made a similar assessment, arguing at the
suppression hearing that it was the car’s GPS “data that . . . allowed the swarm of
law enforcement to ultimately seize the vehicle and [Mr. Davis]. So, it’s a—a
fruit upon a fruit upon a fruit.” II R. 89.
      5
         At oral argument, Mr. Davis’s counsel pointed to footnote 29 of the Third
Circuit’s decision in Katzin, 732 F.3d 187, to support the notion that a prior
search and subsequent traffic stop form a unitary event, one that implicates the
Fourth Amendment rights of all occupants in a vehicle. We are not persuaded by
the Third Circuit’s cursory handling of the standing issue in Katzin. Moreover,
by the time Katzin was cited at oral argument, the Third Circuit had vacated the
opinion and voted to rehear the case en banc. Katzin, No. 12-2548, 2013 WL
7033666 (3d Cir. Dec. 12, 2013).

                                        -8-
reasonable expectation of privacy in Mr. Baker’s girlfriend’s car; the district

court found he had neither. II R. 101-02. Because the poisonous tree was planted

in someone else’s orchard, Mr. Davis lacks standing to challenge its fruits. See

Olivares-Rangel, 458 F.3d at 1117.

      To avoid this conclusion, Mr. Davis points to cases in which this court has

held that, “[e]ven if defendant lacks standing to challenge the search of the car, if

the initial stop was illegal, the seized contraband is subject to exclusion under the

‘fruit of the poison tree’ doctrine.” Erwin, 875 F.2d at 269 n.2; see also United

States v. Eylicio-Montoya, 70 F.3d 1158, 1163-64 (10th Cir. 1995). The obvious

difference between these cases and Mr. Davis’s is that, in those cases, an initial

stop led to a subsequent search of the car; in Mr. Davis’s case, an initial search of

the car led to a subsequent stop. See United States v. Seslar, 996 F.2d 1058, 1063

(10th Cir. 1993) (“subsequent search of the truck . . . [was] tainted by the

unconstitutional stop”). And in those cases, the initial stop was allegedly

pretextual, i.e., not founded upon reasonable suspicion of criminal activity. See,

e.g., Erwin, 875 F.2d at 272 (passenger argued stop was “pretext to conduct an

illegal search for drugs”); Eylicio-Montoya, 70 F.3d at 1160 (passenger argued

stop “was not supported by reasonable suspicion”). That passengers have

standing to challenge a pretextual stop follows from the principle that a passenger

is “seized” during a traffic stop, see Brendlin v. California, 551 U.S. 249, 251

(2007), and if police lacked reasonable suspicion to stop the car, then the

                                         -9-
passenger is seized unreasonably, thus violating personal Fourth Amendment

rights, see Erwin, 875 F.2d at 270 (“Drivers and passengers have similar interests

in seeing that their persons remain free from unreasonable seizure.”).

      Mr. Davis’s case is very different. Agents did not stop the car in which he

was riding based on pretext. Rather, agents located and stopped the suspected

getaway car based on information from a variety of sources—one of which

happened to be an allegedly unconstitutional search. That search might have

violated someone’s rights, but not those of Mr. Davis. “After all,” as Mr. Davis

notes, he “was just a passenger in a vehicle belonging to [Mr.] Baker’s

girlfriend.” I R. 52. Thus, Mr. Davis cannot challenge the legality of the traffic

stop in this case, as its legality turns on a violation of someone else’s Fourth

Amendment rights. 6

B.    Aider-and-Abettor Jury Instruction

      Because Mr. Davis did not timely and specifically object to the jury

instruction below, we review his arguments only for plain error. United States v.

Rosalez, 711 F.3d 1194, 1212 (10th Cir. 2013). Under Federal Rule of Criminal

Procedure 52(b), “an appellate court may, in its discretion, correct an error not

raised at trial only where the appellant demonstrates that (1) there is an error; (2)

the error is clear or obvious, rather than subject to reasonable dispute; (3) the

      6
         We have considered Mr. Davis’s pro se communication received April
17, 2014. However, as he addresses only the district court’s independent-source
finding, his arguments do not affect our determination that he lacks standing.

                                         - 10 -
error affected the appellant’s substantial rights, which in the ordinary case means

it affected the outcome of the district court proceedings; and (4) the error

seriously affects the fairness, integrity or public reputation of judicial

proceedings.” United States v. Marcus, 560 U.S. 258, 262 (2010) (internal

quotation marks and bracket omitted).

        The district court first instructed jurors on the substantive offenses with

which Mr. Davis was charged; this included § 924(c), which “makes it a crime to

use or carry a firearm during and in relation to a crime of violence (which

includes robbery).” Doc. 142, at 16. The district court then gave a general

instruction on aider-and-abettor liability (18 U.S.C. § 2). Id. at 20. The court

instructed that “[e]ach count” of the indictment charged Mr. Davis as an aider and

abettor, and to find Mr. Davis guilty under this theory, the jury must be convinced

that:

              First:        someone else committed the charged crime,
                            and

              Second:       defendant intentionally associated himself
                            in some way with the crime and
                            intentionally participated in it as he would
                            in something he wished to bring about.
                            This means that the government must
                            prove the defendant consciously shared
                            the other person’s knowledge of the
                            underlying criminal act and intended to
                            help him or her.

Id. (emphasis added); see also 10th Cir. Crim. Pattern Jury Instruction 2.06


                                          - 11 -
(2011). The jury convicted Mr. Davis of violating § 924(c). I R. 91-92. The

verdict form was general; it did not reveal whether the jury found that Mr. Davis

used the gun or instead aided and abetted Mr. Baker’s use during the robbery. Id.

      Mr. Davis argues that this general aider-and-abettor instruction was plainly

erroneous as it relates to § 924(c). Aplt. Br. 57. It was “so vague,” he argues,

that jurors could have read “charged crime” and “underlying criminal act” to refer

to the robbery itself, thus allowing jurors to convict him of aiding and abetting

Mr. Baker’s use of a firearm even if he was not aware that Mr. Baker was armed.

Id. at 57-58. Mr. Davis also argues that the instruction was erroneous because it

did not include language that he must have “sought by his actions” to facilitate

the § 924(c) offense. Id. at 59.

      The government concedes error based on subsequent authority—Rosemond

v. United States, 134 S. Ct. 1240 (2014). Oral Argument at 17:48, United States

v. Davis, No. 13-3037 (March 20, 2014). Notwithstanding, it argues that Mr.

Davis cannot establish that this error affected his substantial rights or the fairness

of his trial. Id. at 18:32. It contends that, because jurors were instructed on the

elements of § 924(c) and heard evidence that Mr. Davis was the one who entered

the store with a gun, the jury could have convicted Mr. Davis as a principal

without relying on the aider-and-abettor instruction. Aplee. Br. 52.

      If the principal theory were the only one submitted to the jury, then we

would agree with the government that there was more-than-sufficient evidence to

                                         - 12 -
convict Mr. Davis. See Aplee. Br. 52-53. However, we cannot affirm a general

verdict based on the fact that there is sufficient evidence to convict on a properly

instructed theory of conviction when jurors are also “improperly instructed on a

legally inadequate theory.” United States v. Ayon Corrales, 608 F.3d 654, 658

(10th Cir. 2010). This is “because in such cases jurors are not generally equipped

to determine whether a particular theory of conviction submitted to them is

contrary to law.” Id. (internal quotation marks omitted). We, on the other hand,

are equipped to make such determination.

      Regardless of the parties’ contentions on appeal, we always have a duty to

examine whether the district court committed error, plain or otherwise, even when

a party concedes it. See United States v. Hoyle, 697 F.3d 1158, 1167 n.4 (2012).

Rosemond was an appeal from a decision of this court, 695 F.3d 1151 (10th Cir.

2012), vacated and remanded, 134 S. Ct. 1240 (2014), dealing with aider-and-

abettor liability for § 924(c). Following circuit precedent, we held that an

instruction for aiding and abetting § 924(c) was sufficient if it instructed that

jurors must find “‘(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.’” Id. at 1155. The Supreme Court disagreed. 134 S. Ct.

at 1252.

      The Court noted that § 924(c) is a “double-barreled crime” that requires (1)

using or carrying a firearm (2) when engaged in a predicate “crime of violence or

                                         - 13 -
drug trafficking crime.” Id. at 1245. To aid and abet § 924(c), a defendant must

intend to commit “the illegal scheme in its entirety—including its use of a

firearm.” Id. at 1249. The Court held that the first half of the district court’s

instruction—dealing with intent—was deficient because it “did not direct the jury

to determine when Rosemond obtained the requisite knowledge” that a firearm

would be used or carried. Id. at 1251-52. That knowledge, the Court said, “must

be advance knowledge.” Id. at 1249. The Court rejected the government’s

argument that the requisite knowledge was present “whenever the accomplice,

having learned of the firearm, continues any act of assisting the [predicate crime

of violence or drug trafficking crime].” Id. at 1250. To the contrary, “[i]n such a

circumstance, a jury is entitled to find that the defendant intended only [the

predicate crime]—that he never intended to facilitate, and so does not bear

responsibility for, [that crime] carried out with a gun.” Id. at 1251 (emphasis

added).

      Regarding the second half of the district court’s instruction—dealing with

conduct facilitating the crime—the Court held that “active participation in [the

predicate crime] is sufficient for § 924(c) liability (even if the conduct does not

extend to the firearm).” Id. at 1251. Thus, actions furthering the use or carriage

of the firearm are not required because a defendant’s “participation in the

[predicate crime] satisfies the affirmative-act requirement for aiding and abetting

a § 924(c) violation.” Id. at 1247. This forecloses Mr. Davis’s plain error

                                         - 14 -
argument that he must have “sought by his actions” to facilitate the entire

“§ 924(c) offense.” See Aplt. Br. 57, 59-60, 60 n.3.

      After Rosemond, a jury instruction on aiding and abetting § 924(c) should

address the defendant’s advance knowledge of the gun. The aider-and-abettor

instruction in this case did not highlight this point in relation to the § 924(c)

offense. But the general aider-and-abettor instruction did require Mr. Davis to

consciously share Mr. Baker’s knowledge of the § 924(c) offense and that is

enough on a plain error challenge.

      Mr. Davis confessed to advance knowledge of the robbery and seeing the

gun as Mr. Baker re-entered the car after exiting the RadioShack. Under

Rosemond, Mr. Davis was required to have knowledge of the gun before the

robbery. We do not require jury instructions to be perfect. Zierke v. Agri-Sys.,

992 F.2d 276, 278 (10th Cir. 1993). Rather, instructions must merely be

“adequate,” United States v. Gallant, 537 F.3d 1202, 1233 (10th Cir. 2008), and,

when reviewed for plain error, free of “clear or obvious” errors, Marcus, 560 U.S.

at 262. The error addressed in Rosemond allowed the jury to convict based on

after-acquired knowledge of a firearm, i.e., based on evidence that Mr. Rosemond

“knew his cohort used a firearm.” Rosemond, 134 S. Ct. at 1251 (emphasis

added). Here, the district court did not use this language, but rather gave a

general aider-and-abettor instruction, applying it to “[e]ach count of the

indictment.” Doc. 142, at 20. Mr. Davis argues that this instruction was “so

                                         - 15 -
vague” that the jury could not be expected to adequately relate it back to the

§ 924(c) count. Aplt. Br. 57-58.

      We are not persuaded and find that an unnatural reading of the instruction.

Jurors are generally presumed to follow the judge’s instructions. United States v.

Chanthadara, 230 F.3d 1237, 1251 (10th Cir. 2000). In this case, the aider-and-

abettor instruction called for the jury to consider “[e]ach count of the indictment,”

one of which was § 924(c). Doc. 142, at 20. It required the jury to find that

someone committed the “charged crime,” id.; Mr. Baker and Mr. Davis were

charged with § 924(c), id. at 13. Finally, it required the jury to find that Mr.

Davis “shared [Mr. Baker]’s knowledge of the underlying criminal act,” id. at 20;

one of the criminal acts at issue was § 924(c), which “makes it a crime to use or

carry a firearm during and in relation to a crime of violence (which includes

robbery),” id. at 16. Thus, the instruction required the jury to determine whether

Mr. Davis shared Mr. Baker’s knowledge about the § 924(c) violation, which

necessarily encompasses the planned use of a firearm. Stated another way, if

indeed the jury took the aiding-and-abetting route to conviction on the § 924(c)

count, it implicitly found that Mr. Davis had advance knowledge of the firearm.

      AFFIRMED. 7

      7
        For the sake of preservation, Mr. Davis argues that the $270 taken from
the RadioShack had a de minimis effect on interstate commerce and cannot
support a Hobbs Act (18 U.S.C. § 1951) conviction. Aplt. Br. 64. He
acknowledges, and we agree, that circuit precedent forecloses this argument. Id.
at 2.

                                         - 16 -
13-3037 – United States v. Davis

HARTZ, Circuit Judge, concurring:

       I concur in the result and join all of Judge Kelly’s opinion except the discussion of

Mr. Davis’s claim (not preserved in district court) that the jury instruction on aiding and

abetting was erroneous because it did not require the jury to find that he knew before the

robbery that a gun would be used. I would approach that issue somewhat differently.

       To begin with, Mr. Davis’s claim is based on a misconception of what constitutes

a robbery. We have consistently held that the escape is part of the robbery. Indeed, we

refer to the “escape phase of the bank robbery.” United States v. Von Roeder, 435 F.2d

1004, 1010 (10th Cir. 1971) (“The escape phase of a crime is not, as appellant apparently

argues, an event occurring ‘after the robbery.’ It is part of the robbery. One who

participates in and assists in the escape of the parties who were in the bank aids and abets

the bank robbery and is properly charged as a principal.”), vacated on other grounds sub

nom. Schreiner v. United States, 404 U.S. 67 (1971). Accord United States v. Willis, 102

F.3d 1078, 1083 (10th Cir. 1996); United States v. Balano, 618 F.2d 624, 631 (10th Cir.

1979) (“There is no doubt that one who assists an escape should be charged under 18

U.S.C. § 2 [aiding and abetting] rather than 18 U.S.C. § 3 [accessory after the fact].”).

Therefore, it was enough that Mr. Davis knew of the gun before driving the escape car. It

was undisputed at trial that Mr. Davis knew of the gun by that time, so any error in the

instruction regarding the required timing of knowledge was inconsequential.
       That would dispose of the matter except for a point raised by the Supreme Court’s

recent opinion in Rosemond v. United States, 134 S. Ct. 1240 (2014). According to the

Court, if the alleged accomplice learned that the principal had a gun after there was “no

realistic opportunity to quit the crime,” id. at 1249, then he may not have aided and

abetted the offense if he therefore lacked the requisite intent to “participate in [the

venture] as in something that he wishe[d] to bring about,” id. at 1248 (internal quotation

marks omitted). The opinion noted the possibility that one who insisted that no gun be

used in a drug offense would not be able to bail out if a confederate unexpectedly

revealed a gun during the transaction. See id. at 1251. Mr. Davis has never argued that

he was intimidated into driving the getaway car, but perhaps the issue must be addressed

under plain-error review in light of Rosemond. Mr. Davis’s argument would have to be

that because the jury was not instructed that he had to know of the firearm before he

assisted in the crime, the jury never had to consider whether he willingly drove the

getaway car.

       I would still find no plain error. Under the third prong of plain-error review,

Mr. Davis must show that he was prejudiced by the allegedly faulty instructions. He has

shown no such prejudice. There would be absolutely no reason for the jury to doubt that

he willingly drove the getaway car. Although Mr. Davis told the law-enforcement

officers that Mr. Baker was carrying a gun when he entered the getaway car, he went on

to say that Mr. Baker then simply placed the gun by the steering wheel, hardly a

threatening gesture. I do not read Rosemond to add to the traditional elements of aiding

                                               2
and abetting a separate realistic-opportunity-to-quit element; rather, the point about

having a realistic opportunity to quit was simply a corollary derived from the traditional

elements. The holding of Rosemond is that the jury must be instructed that one cannot be

guilty of aiding and abetting an offense unless he knows that all the elements of the

offense have been or will be committed before he “participate[s] in it as in something that

he wishes to bring about.” Id. at 1248 (internal quotation marks omitted). If the

defendant does not learn of one of the elements (say, the possession of a gun by the

principal) until there is no longer a realistic opportunity to quit, the defendant may

continue to participate in the offense even though the offense is not something he wishes

to bring about. But it may well be, and I suspect that this will often be the case, that even

when, say, the getaway driver learns something after it is too late to back out, the jury

will still find that the driver wished the crime to succeed. The jury’s verdict will depend

on how it evaluates the evidence. The Court’s point in Rosemond is simply that the jury

must be properly instructed so that it does not render a guilty verdict without determining

whether the defendant, having knowledge of all the elements of the crime, still

participated with the wish that the crime succeed. Here, Mr. Davis has not suggested,

and I see no reason to infer, that the jury would not have found him guilty under proper

instructions. We do not speculate to find prejudice under the third prong of plain-error

review.




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