Can a defendant appeal his conviction of aiding and abetting the carrying or use of a firearm?

In our recent decision in United States v. Masotto, 73 F.3d 1233 (2d Cir.1996), a defendant convicted of robbery appealed his conviction of aiding and abetting the carrying or use of a firearm. Masotto argued, as does the defendant here, that the trial court erroneously instructed the jury that liability could be based on " 'mere knowledge' that members of the crew might use firearms without proof that [the defendant] 'performed some act that directly facilitated or encouraged the use or carrying of a firearm.' " Id. at 1240 (citing Medina, 32 F.3d at 45). We turned this challenge aside, holding that the general instructions on liability as an aider and abettor required the jury to find more than knowledge: the jury was required to find that all the elements of the underlying firearms offense were committed by some person and that the defendant participated in the commission of the offense. Id. at 1240. The instant case is indistinguishable from Masotto. Read as a whole, the instructions effectively explained that the defendant must have directly facilitated the commission of the firearms offense. Therefore, there is no reasonable likelihood that

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