WADDINGTON, SUPERINTENDENT, WASHINGTON CORRECTIONS CENTER v. SARAUSAD

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179 OCTOBER TERM, 2008
Syllabus
WADDINGTON, SUPERINTENDENT, WASHINGTON
CORRECTIONS CENTER v. SARAUSAD
certiorari to the united states court of appeals for
the ninth circuit
No. 07–772. Argued October 15, 2008—Decided January 21, 2009
Respondent Sarausad drove the car in a driveby shooting at a high school,
which was the culmination of a gang dispute. En route to school,
Ronquillo, the front seat passenger, covered his lower face and readied
a handgun. Sarausad abruptly slowed down upon reaching the school,
Ronquillo fired at a group of students, killing one and wounding another,
and Sarausad then sped away. He, Ronquillo, and Reyes, another pas
senger, were tried on murder and related charges. Sarausad and
Reyes, who were tried as accomplices, argued that they were not accom
plices to murder because they had not known Ronquillo’s plan and
had expected at most another fistfight. In her closing argument, the
prosecutor stressed Sarausad’s knowledge of a shooting, noting how he
drove at the scene, that he knew that fighting alone would not regain
respect for his gang, and that he was “in for a dime, in for a dollar.”
The jury received two instructions that directly quoted Washington’s
accomplice-liability law. When it failed to reach a verdict as to Reyes,
the judge declared a mistrial as to him. The jury then convicted
Ronquillo on all counts and convicted Sarausad of second-degree murder
and related crimes. In affirming Sarausad’s conviction, the State Court
of Appeals, among other things, referred to an “in for a dime, in for a
dollar” accomplice-liability theory. The State Supreme Court denied
review, but in its subsequent Roberts case, it clarified that “in for a
dime, in for a dollar” was not the best descriptor of accomplice liability
because an accomplice must have knowledge of the crime that occurred.
The court also explicitly reaffirmed its precedent that the type of jury
instructions used at Sarausad’s trial comport with Washington law.
Sarausad sought state postconviction relief, arguing that the prosecu
tor’s improper “in for a dime, in for a dollar” argument may have led
the jury to convict him as an accomplice to murder based solely on a
finding that he had anticipated that an assault would occur. The state
appeals court reexamined the trial record in light of Roberts, but found
no error requiring correction. The State Supreme Court denied
Sarausad’s petition, holding that the trial court correctly instructed the
jury and that no prejudicial error resulted from the prosecutor’s poten
tially improper hypothetical. Sarausad then sought review under 28

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180 WADDINGTON v. SARAUSAD
Syllabus
U. S. C. § 2254, which, inter alia, permits a federal court to grant habeas
relief on a claim “adjudicated on the merits” in state court only if
the decision “was contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by” this Court,
§ 2254(d)(1). The District Court granted the petition, and the Ninth
Circuit affirmed, finding it unreasonable for the state court to affirm
Sarausad’s conviction because the jury instruction on accomplice liabil
ity was ambiguous and there was a reasonable likelihood that the jury
misinterpreted the instruction in a way that relieved the State of its
burden of proving Sarausad’s knowledge of a shooting beyond a reason
able doubt.
Held: Because the state-court decision did not result in an “unreasonable
application of . . . clearly established Federal law,” § 2254(d)(1), the Ninth
Circuit erred in granting habeas relief to Sarausad. Pp. 190–197.
(a) When a state court’s application of governing federal law is chal
lenged, the decision “ ‘must be shown to be not only erroneous, but ob
jectively unreasonable.’ ” Middleton v. McNeil, 541 U. S. 433, 436 (per
curiam). A defendant challenging the constitutionality of a jury in
struction that quotes a state statute must show both that the instruction
was ambiguous and that there was “ ‘a reasonable likelihood’ ” that the
jury applied the instruction in a way that relieved the State of its bur
den of proving every element of the crime beyond a reasonable doubt.
Estelle v. McGuire, 502 U. S. 62, 72. The instruction “must be consid
ered in the context of the instructions as a whole and the trial record,”
ibid., and the pertinent question is whether the “ ‘instruction by itself
so infected the entire trial that the resulting conviction violates due
process,’ ” ibid. Pp. 190–191.
(b) Because the Washington courts’ conclusion that the jury instruc
tion was unambiguous was not objectively unreasonable, the Ninth Cir
cuit should have ended its § 2254(d)(1) inquiry there. The instruction
parroted the state statute’s language, requiring the jury to find Sarau
sad guilty as an accomplice “in the commission of the [murder]” if he
acted “with knowledge that [his conduct would] promote or facilitate
the commission of the [murder],” Wash. Rev. Code §§ 9A.08.020(2)(c),
(3)(a). The instruction cannot be assigned any meaning different from
the one given to it by the Washington courts. Pp. 191–192.
(c) Even if the instruction were ambiguous, the Ninth Circuit still
erred in finding it so ambiguous as to cause a federal constitutional vio
lation requiring reversal under the Antiterrorism and Effective Death
Penalty Act of 1996. The Washington courts reasonably applied this
Court’s precedent when they found no “reasonable likelihood” that the
prosecutor’s closing argument caused the jury to apply the instruction

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in a way that relieved the State of its burden to prove every element of
the crime beyond a reasonable doubt. The prosecutor consistently ar
gued that Sarausad was guilty as an accomplice because he acted with
knowledge that he was facilitating a driveby shooting. She never ar
gued that the admission by Sarausad and Reyes that they anticipated a
fight was a concession of accomplice liability for murder. Sarausad’s
attorney also homed in on the key question, stressing a lack of evidence
showing that Sarausad knew that his assistance would promote or facili
tate a premeditated murder. Every state and federal appellate court
that reviewed the verdict found the evidence supporting Sarausad’s
knowledge of a shooting legally sufficient to convict him under Washing
ton law. Given the strength of that evidence, and the jury’s failure to
convict Reyes—who had also been charged as an accomplice to murder
and admitted knowledge of a possible fight—it was not objectively un
reasonable for the Washington courts to conclude that the jury convicted
Sarausad because it believed that he, unlike Reyes, had knowledge of
more than just a fistfight. The Ninth Circuit’s contrary reasoning is
unconvincing. Pp. 192–196.
479 F. 3d 671, reversed and remanded.
Thomas, J., delivered the opinion of the Court, in which Roberts, C. J.,
and Scalia, Kennedy, Breyer, and Alito, JJ., joined. Souter, J., filed
a dissenting opinion, in which Stevens and Ginsburg, JJ., joined, post,
p. 197.
William Berggren Collins, Deputy Solicitor General of
Washington, argued the cause for petitioner. With him on
the briefs were Robert M. McKenna, Attorney General, Jay
D. Geck, Deputy Solicitor General, and Paul D. Weisser and
John J. Samson, Assistant Attorneys General.
Jeffrey L. Fisher argued the cause for respondent. On
the brief were Patricia Novotny, by appointment of the
Court, 555 U. S. 807, Jeffrey T. Green, Mark E. Haddad,
David Zuckerman, and Vanessa Soriano Power.*
Justice Thomas delivered the opinion of the Court.
This case arose from a fatal driveby shooting into a group
of students standing in front of a Seattle high school. Brian
*Craig D. Singer and Pamela Harris filed a brief for the National Asso
ciation of Criminal Defense Lawyers as amicus curiae urging affirmance.

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Ronquillo was ultimately identified as the gunman; at the
time of the shooting, he was a passenger in a car driven by
respondent Cesar Sarausad II. A jury convicted Sarausad
as an accomplice to second-degree murder, attempted mur
der, and assault; he was sentenced to just over 27 years
of imprisonment. The Washington courts affirmed his con
viction and sentence on direct review, and his state-court
motions for postconviction relief were denied.
Respondent, then, filed a federal petition for a writ of ha
beas corpus. The District Court granted the writ. On ap
peal, the Court of Appeals for the Ninth Circuit agreed with
the District Court that the state-court decision was an objec
tively “unreasonable application of . . . clearly established
Federal law, as determined by the Supreme Court of the
United States.” 28 U. S. C. § 2254(d)(1). The Court of Ap
peals found it unreasonable for the state court to reject
Sarausad’s argument that certain jury instructions used at
his trial were ambiguous and were likely misinterpreted by
the jury to relieve the State of its burden of proving every
element of the crime beyond a reasonable doubt. Sarausad
v. Porter, 479 F. 3d 671 (2007). We disagree. Because the
Washington courts reasonably applied our precedent to the
facts of this case, we reverse the judgment below.
I
A
The driveby shooting was the culmination of a gang
dispute between the 23d Street Diablos, of which Cesar
Sarausad was a member, and the Bad Side Posse, which was
headquartered at Ballard High School in Seattle, Washing
ton. A member of the Diablos, Jerome Reyes, had been
chased from Ballard by members of the Bad Side Posse, so
the Diablos decided to go “to Ballard High School to show
that the Diablos were not afraid” of the rival gang. App. to
Pet. for Cert. 235a. The Diablos started a fight with the
Bad Side Posse, but left quickly after someone indicated that

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police were nearby. They went to a gang member’s house,
still angry because the Bad Side Posse had “called [them]
weak.” Tr. 2660–2661. Brian Ronquillo retrieved a hand
gun, and the gang decided to return to Ballard and “get
[their] respect back.” Id., at 2699.
Sarausad drove, with Ronquillo in the front passenger seat
and Reyes and two other Diablos in the back seat. En
route, someone in the car mentioned “ ‘capping’ ” the Bad
Side Posse, and Ronquillo tied a bandana over the lower part
of his face and readied the handgun. Sarausad v. State, 109
Wash. App. 824, 844, 39 P. 3d 308, 319 (2001). Shortly before
reaching the high school, a second car of Diablos pulled up
next to Sarausad’s car and the drivers of the two cars talked
briefly. Sarausad asked the other driver, “ ‘Are you
ready?’ ” id., at 844–845, 39 P. 3d, at 319, and then sped the
rest of the way to the high school. Once in front of the
school, Sarausad abruptly slowed to about five miles per hour
while Ronquillo fired 6 to 10 shots at a group of students
standing in front of it. Id., at 831, 39 P. 3d, at 312.
Sarausad “saw everyone go down,” Tr. 2870, and then sped
away, 109 Wash. App., at 832, 39 P. 3d, at 313. The gunfire
killed one student; another student was wounded when a bul
let fragment struck his leg. Id., at 831–832, 39 P. 3d, at
312–313.
B
Sarausad, Ronquillo, and Reyes were tried for the first
degree murder of Melissa Fernandes, the attempted first
degree murders of Ryan Lam and Tam Nguyen, and the
second-degree assault of Brent Mason. Sarausad and
Reyes, who were tried as accomplices, argued at trial that
they could not have been accomplices to murder because
they “had no idea whatsoever that Ronquillo had armed him
self for the return trip.” Id., at 832, 39 P. 3d, at 313. They
claimed that they expected, at most, another fistfight with
the Bad Side Posse and were “totally and utterly dismayed
when Ronquillo started shooting.” Ibid.

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Sarausad’s counsel, in particular, argued that there was no
evidence that Sarausad expected anything more than that
the two gangs “would exchange insults, and maybe, maybe
get into a fight.” Tr. 1151. Sarausad testified that he con
sidered only the “possibility of a fight,” id., at 2799, but never
the possibility of a shooting, 109 Wash. App., at 832, 39 P. 3d,
at 313. During closing arguments, Sarausad’s attorney
again argued that the evidence showed only that Sarausad
was “willing to fight them the way they fought them the first
time. And that is by pushing and shoving and more tough
talk.” App. 81. That was not sufficient, the attorney ar
gued, to find that “Cesar [Sarausad] had knowledge that his
assistance would promote or facilitate the crime of premedi
tated murder.” Id., at 83. Sarausad’s attorney also ex
plained to the jury that knowledge of just any crime, such as
knowledge that criminal assistance would be rendered after
the shooting, would be insufficient to hold Sarausad responsi
ble as an accomplice to murder because “[a]ccomplice liability
requires that one assists with knowledge, that their actions
will promote or facilitate the commission of the crime.” Id.,
at 100 (emphasis added).
In response, the prosecutor focused much of her closing
argument on the evidence of Sarausad’s knowledge of a
shooting. He had “slowed down before the shots were fired,
stayed slowed down until the shots were over and immedi
ately sped up.” Id., at 39. “There was no hesitation, there
was no stopping the car. There was no attempt for
Mr. Sarausad to swerve his car out of the way so that inno
cent people wouldn’t get shot.” Id., at 40. She also argued
that Sarausad knew when he drove back to the school that
his gang’s “fists didn’t work, the pushing didn’t work, the
flashing of the signs, the violent altercation didn’t work” be
cause the Bad Side Posse still “laughed at them, they called
them weak, they called them nothing.” Id., at 44. So,
“[w]hen they rode down to Ballard High School that last

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time, . . . [t]hey knew they were there to commit a crime, to
disrespect the gang, to fight, to shoot, to get that respect
back. A fist didn’t work, pushing didn’t work. Shouting in
sults at them didn’t work. Shooting was going to work. In
for a dime, you’re in for a dollar.” Id., at 123–124.
At the close of trial, the jury received two instructions
that directly quoted Washington’s accomplice-liability stat
ute.1 Instruction number 45 provided:
“You are instructed that a person is guilty of a crime
if it is committed by the conduct of another person for
which he is legally accountable. A person is legally ac
countable for the conduct of another person when he is
an accomplice of such other person in the commission of
the crime.” Id., at 16 (emphasis added).
Instruction number 46 provided, in relevant part:
“A person is an accomplice in the commission of a
crime if, with knowledge that it will promote or facili
tate the commission of the crime, he or she either:
“(1) solicits, commands, encourages, or requests an
other person to commit the crime or
“(2) aids or agrees to aid another person in planning
or committing the crime.” Id., at 17 (emphasis added).
1 Washington’s accomplice-liability statute provides, in pertinent part:
“A person is guilty of a crime if it is committed by the conduct of another
person for which he is legally accountable. A person is legally account
able for the conduct of another person when:
. . . . .
“He is an accomplice of such other person in the commission of the crime.
“A person is an accomplice of another person in the commission of a
crime if . . . [w]ith knowledge that it will promote or facilitate the commis
sion of the crime, he
“(i) solicits, commands, encourages, or requests such other person to
commit it; or
“(ii) aids or agrees to aid such other person in planning or committing
it.” Wash. Rev. Code §§ 9A.08.020(1)–(3) (2008) (internal numbering
omitted).

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During seven days of deliberations, the jury asked five
questions, three of which related to the intent requirement
for accomplice liability. One questioned the accomplice
liability standard as it related to the first-degree murder in
structions; one questioned the standard as it related to the
second-degree murder instructions; and one stated that the
jury was “having difficulty agreeing on the legal definition
and concept of ‘accomplice’ ” and whether a person’s “willing
participat[ion] in a group activity” makes “that person an
accomplice to any crime committed by anyone in the group.”
Id., at 129. In response to each question, the judge in
structed the jury to reread the accomplice-liability instruc
tions and to consider the instructions as a whole.
The jury was unable to reach a verdict as to Reyes, and
the judge declared a mistrial as to him. The jury then re
turned guilty verdicts on all counts for Ronquillo and con
victed Sarausad of the lesser included crimes of second
degree murder, attempted second-degree murder, and
second-degree assault.
C
On appeal, Sarausad argued that because the State did not
prove that he had intent to kill, he could not be convicted as
an accomplice to second-degree murder under Washington
law. The Washington Court of Appeals affirmed his convic
tions, explaining that under Washington law, an accomplice
must have “general knowledge” that the crime will occur,
but need not have the specific intent required for that crime’s
commission. App. to Pet. for Cert. 259a. The court re
ferred to accomplice liability as “a theory of criminal liability
that in Washington has been reduced to the maxim, ‘in for a
dime, in for a dollar.’ ” Id., at 235a. The Washington Su
preme Court denied discretionary review. State v. Ron
quillo, 136 Wash. 2d 1018, 966 P. 2d 1277 (1998).
Shortly thereafter, the Washington Supreme Court clari
fied in an unrelated criminal case that “in for a dime, in for a
dollar” is not the best descriptor of accomplice liability under

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Washington law because an accomplice must have knowledge
of “the crime” that occurs. State v. Roberts, 142 Wash. 2d
471, 509–510, 14 P. 3d 713, 734–735 (2000). Therefore, an
accomplice who knows of one crime—the dime—is not guilty
of a greater crime—the dollar—if he has no knowledge of
that greater crime. It was error, then, to instruct a jury
that an accomplice’s knowledge of “ ‘a crime’ ” was sufficient
to establish accomplice liability for “ ‘the crime.’ ” Ibid.2
The Washington Supreme Court limited this decision to in
structions containing the phrase “a crime” and explicitly re
affirmed its precedent establishing that jury instructions
linking an accomplice’s knowledge to “the crime,” such as
the instruction used at Sarausad’s trial, comport with Wash
ington law. Id., at 511–512, 14 P. 3d, at 736 (discussing State
v. Davis, 101 Wash. 2d 654, 656, 682 P. 2d 883, 884 (1984)).
An instruction that references “the crime” “copie[s] exactly
the language from the accomplice liability statute” and prop
erly hinges criminal punishment on knowledge of “the
crime” for which the defendant was charged as an accom
plice. 142 Wash. 2d, at 512, 14 P. 3d, at 736.
D
Sarausad next sought postconviction relief from the Wash
ington courts. He argued that although the accomplice
liability instruction used at his trial complied with Roberts,
2 The instruction found faulty in Roberts provided in full:
“You are instructed that a person is guilty of a crime if it is committed
by the conduct of another person for which he is legally accountable. A
person is legally accountable for the conduct of another person when he is
an accomplice of such other person in the commission of a crime.
“A person is an accomplice in the commission of a crime, whether pres
ent at the time of its commission or not, if, with knowledge that it will
promote or facilitate its commission, he either:
“(a) solicits, commands, encourages, or requests another person to com
mit the crime; or
“(b) aids another person in planning or committing the crime.” 142
Wash. 2d, at 488–489, 14 P. 3d, at 724 (emphasis added).

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“an additional clarifying instruction should have been given”
because the prosecutor may have confused the jury by im
properly arguing that he had been “ ‘in for a dime, in for a
dollar.’ ” Sarausad, 109 Wash. App., at 829, 39 P. 3d, at 311.
Therefore, he argued, the jury may have convicted him as
an accomplice to second-degree murder based solely on his
admission that he anticipated that an assault would occur at
Ballard High School.
The Washington Court of Appeals reexamined the trial
record in its entirety in light of Roberts, see 109 Wash. App.,
at 834, 39 P. 3d, at 313–314, but found no error requiring
correction. According to the court, the prosecutor’s closing
argument in its entirety did not convey “that the jury could
find Sarausad guilty as an accomplice to murder if he had
the purpose to facilitate an offense of any kind whatsoever,
even a shoving match or fist fight.” Id., at 840, 39 P. 3d,
at 317. The prosecutor’s “ ‘in for a dime, in for a dollar’ ”
illustration also did not convey that standard. Id., at 842–
843, 39 P. 3d, at 318. The court explained that in every situ
ation but one, the prosecutor clearly did not use that phrase
to argue that Sarausad could be convicted of murder if he
intended only a fistfight. Instead, she used it to convey a
“gang mentality” that requires a wrong to the gang to be
avenged by any means necessary. Id., at 842, 39 P. 3d, at
318. Thus, according to the prosecutor, when a fight did not
work, Sarausad knew that a shooting was required to avenge
his gang. See ibid.
There was one “in for a dime, in for a dollar” hypothetical
in the prosecutor’s closing that did not convey this gang
mentality meaning and thus, the court recognized, “may or
may not be problematic under Roberts” depending on how it
was interpreted. Id., at 843, 39 P. 3d, at 318.3 The court
3 The prosecutor had argued in the hypothetical that an accomplice who
knows that he is helping someone assault a victim bears responsibility if
the victim is killed. The hypothetical stated in full:
“Let me give you a good example of accomplice liability. A friend
comes up to you and says, ‘Hold this person’s arms while I hit him.’ You

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concluded that it did not need to decide whether the hypo
thetical was improper under state law because, even if it was,
it did not prejudice Sarausad. Sarausad’s jury was properly
instructed and “the prosecutor made it crystal clear to the
jury that the State wanted Sarausad found guilty . . . because
he knowingly facilitated the drive-by shooting and for no
other reason.” Id., at 843–844, 39 P. 3d, at 319.
Sarausad sought discretionary postconviction review from
the Supreme Court of Washington. In denying his petition,
the court held that “the trial court correctly instructed the
jury” that knowledge of the particular crime committed was
required. App. to Pet. for Cert. 191a. The court also found
that no prejudicial error resulted from the prosecutor’s po
tentially improper hypothetical. Id., at 192a. “[W]hatever
the flaws in the argument, the prosecutor properly focused
on Mr. Sarausad’s knowing participation in the shooting, not
in some lesser altercation.” Ibid.
E
Sarausad filed this petition for a writ of habeas corpus in
Federal District Court pursuant to 28 U. S. C. § 2254. The
District Court granted the petition, finding “ample evidence
that the jury was confused about what elements had to be
established in order for [Sarausad] to be found guilty of sec
ond degree murder and second degree attempted murder.”
App. to Pet. for Cert. 129a. The Court of Appeals for the
Ninth Circuit affirmed, finding that the state postconviction
court unreasonably applied this Court’s decisions in Estelle
say, ‘Okay, I don’t like that person, anyway.’ You hold the arms. The
person not only gets assaulted, he gets killed. You are an accomplice and
you can’t come back and say, ‘Well, I only intended this much damage to
happen.’ Your presence, your readiness to assist caused the crime to
occur and you are an accomplice. The law in the State of Washington
says, if you’re in for a dime, you’re in for a dollar. If you’re there or even
if you’re not there and you’re helping in some fashion to bring about this
crime, you are just as guilty.” App. 38.

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v. McGuire, 502 U. S. 62 (1991), Sandstrom v. Montana, 442
U. S. 510 (1979), and In re Winship, 397 U. S. 358 (1970), in
affirming Sarausad’s conviction in spite of ambiguous jury
instructions and the “ ‘reasonable likelihood that the jury . . .
applied the challenged instruction in a way’ that violates the
Constitution.” 479 F. 3d, at 683 (quoting Estelle, supra, at
72). The court denied rehearing en banc over the dissent of
five judges. Sarausad v. Porter, 503 F. 3d 822 (2007). We
granted certiorari, 552 U. S. 1256 (2008), and now reverse.
II
Under the Antiterrorism and Effective Death Penalty Act
of 1996 (AEDPA), 110 Stat. 1214, a federal court may grant
habeas relief on a claim “adjudicated on the merits” in state
court only if the decision “was contrary to, or involved an
unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United
States.” 28 U. S. C. § 2254(d)(1). Where, as here, it is
the state court’s application of governing federal law that
is challenged, the decision “ ‘must be shown to be not only
erroneous, but objectively unreasonable.’ ” Middleton v.
McNeil, 541 U. S. 433, 436 (2004) (per curiam) (quoting Yar
borough v. Gentry, 540 U. S. 1, 5 (2003) (per curiam)); see
also Schriro v. Landrigan, 550 U. S. 465, 473 (2007) (“The
question under AEDPA is not whether a federal court be
lieves the state court’s determination was incorrect but
whether that determination was unreasonable—a substan
tially higher threshold”).
Our habeas precedent places an “especially heavy” burden
on a defendant who, like Sarausad, seeks to show constitu
tional error from a jury instruction that quotes a state stat
ute. Henderson v. Kibbe, 431 U. S. 145, 155 (1977). Even if
there is some “ambiguity, inconsistency, or deficiency” in the
instruction, such an error does not necessarily constitute a
due process violation. Middleton, supra, at 437. Rather,
the defendant must show both that the instruction was am

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biguous and that there was “ ‘a reasonable likelihood’ ” that
the jury applied the instruction in a way that relieved the
State of its burden of proving every element of the crime
beyond a reasonable doubt. Estelle, supra, at 72 (quoting
Boyde v. California, 494 U. S. 370, 380 (1990)). In making
this determination, the jury instruction “ ‘may not be judged
in artificial isolation,’ but must be considered in the context
of the instructions as a whole and the trial record.” Estelle,
supra, at 72 (quoting Cupp v. Naughten, 414 U. S. 141, 147
(1973)). Because it is not enough that there is some “slight
possibility” that the jury misapplied the instruction, Weeks
v. Angelone, 528 U. S. 225, 236 (2000), the pertinent question
“is ‘whether the ailing instruction by itself so infected the
entire trial that the resulting conviction violates due proc
ess,’ ” Estelle, supra, at 72 (quoting Cupp, supra, at 147).
A
The Washington courts reasonably concluded that the trial
court’s instruction to the jury was not ambiguous. The in
struction parroted the language of the statute, requiring that
an accomplice “in the commission of the crime” take action
“with knowledge that it will promote or facilitate the com
mission of the crime.” App. 16–17 (emphasis added); Wash.
Rev. Code §§ 9A.08.020(2)(c), (3)(a) (2008). It is impossible
to assign any meaning to this instruction different from the
meaning given to it by the Washington courts. By its plain
terms, it instructed the jury to find Sarausad guilty as an
accomplice “in the commission of the [murder]” only if he
acted “with knowledge that [his conduct] will promote or fa
cilitate the commission of the [murder].” App. 16–17.4 Be
4 The dissent would reverse the Washington state courts based on the
alleged confusion in Washington courts, and specifically in the Washington
Court of Appeals on direct review, about the meaning of the Washington
accomplice-liability statute. Post, at 198–200 (opinion of Souter, J.).
But the confusion in the Court of Appeals over the application of the stat
ute involved the related, but legally distinct, question whether an accom

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192 WADDINGTON v. SARAUSAD
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cause the conclusion reached by the Washington courts that
the jury instruction was unambiguous was not objectively
unreasonable, the Court of Appeals’ 28 U. S. C. § 2254(d)(1)
inquiry should have ended there.5
B
Even if we agreed that the instruction was ambiguous, the
Court of Appeals still erred in finding that the instruction
plice is required to share the specific intent of the principal actor under
Washington law. On direct appeal, respondent argued that he should not
have been convicted as an accomplice to murder because he did not have
the specific intent to kill. The Washington Court of Appeals rejected that
argument because “it was not necessary for the State to prove Sarausad
knew Ronquillo had a gun, or knew that there was a potential for gunplay
that day” under Washington law, App. to Pet. for Cert. 266a, where “ac
complice liability predicates criminal liability on general knowledge of a
crime, rather than specific knowledge of the elements of the principal’s
crime,” id., at 259a. But the Washington Court of Appeals never held
that knowledge of a completely different crime, such as assault, would be
sufficient under Washington law for accomplice liability for murder. See
id., at 258a–259a; see also In re Domingo, 155 Wash. 2d 356, 367–368, 119
P. 3d 816, 822 (2005) (“[N]either Davis nor any of this court’s decisions
subsequent to Davis approves of the proposition that accomplice liability
attaches for any and all crimes committed by the principal so long as the
putative accomplice knowingly aided in any one of the crimes”). In other
words, the Court of Appeals had evaluated whether respondent’s convic
tion required a specific intent versus a general intent to kill, not whether
it required knowledge of a murder versus knowledge of an assault—the
issue under review here. Thus, the confusion in the state courts refer
enced by the dissent has no bearing on the question presented in this
appeal, and does not support the dissent’s argument that the jury instruc
tion in question was ambiguous.
5 To the extent that the Court of Appeals attempted to rewrite state
law by proposing that the instruction should have included “an explicit
statement that an accomplice must have knowledge of . . . the actual crime
the principal intends to commit,” 479 F. 3d 671, 690 (CA9 2007), it com
pounded its error. The Washington Supreme Court expressly held that
the jury instruction correctly set forth state law, App. to Pet. for Cert.
191a, and we have repeatedly held that “it is not the province of a federal
habeas court to reexamine state-court determinations on state-law ques
tions.” Estelle v. McGuire, 502 U. S. 62, 67–68 (1991).

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was so ambiguous as to cause a federal constitutional viola
tion, as required for us to reverse the state court’s determi
nation under AEDPA, 28 U. S. C. § 2254(d). The Washing
ton courts reasonably applied this Court’s precedent when
they determined that there was no “reasonable likelihood”
that the prosecutor’s closing argument caused Sarausad’s
jury to apply the instruction in a way that relieved the State
of its burden to prove every element of the crime beyond a
reasonable doubt. The prosecutor consistently argued that
Sarausad was guilty as an accomplice because he acted with
knowledge that he was facilitating a driveby shooting. In
deed, Sarausad and Reyes had admitted under oath that they
anticipated a fight, Tr. 2671, 2794, and yet the prosecutor
never argued that their admission was a concession of accom
plice liability for murder. She instead argued that Sarausad
knew that a shooting was intended, App. 123, because he
drove his car in a way that would help Ronquillo “fire those
shots,” id., at 39. The closing argument of Sarausad’s attor
ney also homed in on the key legal question: He challenged
the jury to look for evidence that Sarausad “had knowledge
that his assistance would promote or facilitate the crime of
premeditated murder” and argued that no such evidence ex
isted. Id., at 83.
Put simply, there was no evidence of ultimate juror confu
sion as to the test for accomplice liability under Washington
law. Rather, the jury simply reached a unanimous decision
that the State had proved Sarausad’s guilt beyond a reason
able doubt. Indeed, every state and federal appellate court
that reviewed the verdict found that the evidence supporting
Sarausad’s knowledge of a shooting was legally sufficient to
convict him under Washington law. 479 F. 3d, at 677–683;
Sarausad, 109 Wash. App., at 844–845, 39 P. 3d, at 319.
Given the strength of the evidence supporting the conviction,
along with the jury’s failure to convict Reyes—who also had
been charged as an accomplice to murder and also had ad
mitted knowledge of a possible fight—it was not objectively

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194 WADDINGTON v. SARAUSAD
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unreasonable for the Washington courts to conclude that the
jury convicted Sarausad only because it believed that he, un
like Reyes, had knowledge of more than just a fistfight. The
reasoning of the Court of Appeals, which failed to review the
state courts’ resolution of this question through the deferen
tial lens of AEDPA, does not convince us otherwise.
First, the Court of Appeals found that the evidence of
Sarausad’s knowledge of the shooting was so “thin” that the
jury must have incorrectly believed that proof of such knowl
edge was not required. 479 F. 3d, at 692–693. That conclu
sion, however, is foreclosed by the Court of Appeals’ own
determination that the evidence was sufficient for a rational
jury to reasonably infer that Sarausad knowingly facilitated
the driveby shooting. As explained above, the Court of Ap
peals acknowledged that the evidence showed that Ronquillo,
while seated in Sarausad’s front passenger seat, tied a ban
dana over the lower part of his face and pulled out a gun.
Id., at 681. There also was evidence that Sarausad then
asked the Diablos in the other car, “ ‘Are you ready?’ ” before
driving to the school and “slow[ing] his car in front of the
school in a manner that facilitated a drive-by shooting.”
Ibid. Other gang members testified to prior knowledge of
the gun and to discussing the shooting as an option during
the gang meeting held between trips to Ballard High School.
Id., at 682. There also was testimony from Sarausad that
he suspected that members of the Bad Side Posse would be
armed when they returned to Ballard High School, ibid.,
making it reasonable to conclude that Sarausad would expect
his gang to be similarly prepared for the confrontation.
There was nothing “thin” about the evidence of Sarausad’s
guilt.
Second, the Court of Appeals faulted the prosecutor for
arguing “clearly and forcefully” for an “ ‘in for a dime, in for
a dollar’ ” theory of accomplice liability. Id., at 693. But
the Washington Court of Appeals conducted an in-depth
analysis of the prosecutor’s argument and reasonably found

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that it contained, at most, one problematic hypothetical.
Sarausad, supra, at 842–843, 39 P. 3d, at 318–319. The
state court’s conclusion that the one hypothetical did not
taint the proper instruction of state law was reasonable
under this Court’s precedent, which acknowledges that “ar
guments of counsel generally carry less weight with a jury
than do instructions from the court.” Boyde, 494 U. S., at
384. On habeas review, the Court of Appeals should not
have dissected the closing argument and exaggerated the
possible effect of one hypothetical in it. There was nothing
objectively unreasonable about the Washington courts’ reso
lution of this question.6
Third, and last, the Court of Appeals believed that the
jury’s questions “demonstrated substantial confusion about
what the State was required to prove.” 479 F. 3d, at 693.
Sarausad focuses special attention on this factor, arguing
that it was the “failure to remedy” this confusion that sets
this case apart from previous decisions and establishes that
the jury likely “did not understand accomplice liability” when
it returned its verdict. Brief for Respondent 29, 31. But
this Court has determined that the Constitution generally
requires nothing more from a trial judge than the type of
6 The dissent accuses us of downplaying this ambiguous hypothetical,
arguing that it is so rife with improper meaning that it “infect[ed] every
further statement bearing on accomplice law the prosecutor made,” post,
at 202, and ensured that the jury misinterpreted the trial court’s properly
phrased instruction. We disagree. The proper inquiry is whether the
state court was objectively unreasonable in concluding that the instruction
(which precisely tracked the language of the accomplice-liability statute)
was not warped by this one-paragraph hypothetical in an argument and
rebuttal spanning 31 pages of the joint appendix. The state court’s con
clusion was not unreasonable. The hypothetical was presented during
closing arguments, which juries generally “vie[w] as the statements of
advocates” rather than “as definitive and binding statements of the law,”
Boyde v. California, 494 U. S. 370, 384 (1990), and which, as a whole, made
clear that the State sought a guilty verdict based solely on Sarausad’s
“knowledge that his assistance would promote or facilitate the crime of
premeditated murder,” App. 83; see also id., at 123–124.

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196 WADDINGTON v. SARAUSAD
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answers given to the jury here. Weeks, 528 U. S., at 234.
Where a judge “respond[s] to the jury’s question by directing
its attention to the precise paragraph of the constitutionally
adequate instruction that answers its inquiry,” and the jury
asks no followup question, this Court has presumed that the
jury fully understood the judge’s answer and appropriately
applied the jury instructions. Ibid.
Under this established standard, it was not objectively un
reasonable for the state court to conclude that Sarausad’s
jury received the answers it needed to resolve its confusion.7
Its questions were spaced throughout seven days of delibera
tions, involved different criminal charges, and implicated the
interrelation of several different jury instructions. The
judge pinpointed his answers to the particular instructions
responsive to the questions and those instructions reflected
state law. Under these circumstances, the state court did
not act in an objectively unreasonable manner in finding that
the jury knew the proper legal standard for conviction.
7 The dissent argues that we “sideste[p] the thrust of this record” by
finding that the trial judge’s answers to the jury’s questions were satisfac
tory. Post, at 205. But our decision cannot turn on a de novo review of
the record or a finding that the answers were “the best way to answer
jurors’ questions,” ibid. On federal habeas review, this Court’s in
quiry is limited to whether the state court violated clearly established
federal law when it held that the jury applied the correct standard, in
light of the answers given to its questions. See 28 U. S. C. § 2254(d)(1).
On that issue, the state court was not objectively unreasonable; the jury’s
questions were answered in a manner previously approved by this Court,
and they consistently referred the jury to the correct standard for accom
plice liability in Washington. The dissent also ignores the important fact
that the jury convicted Ronquillo of first-degree murder, convicted re
spondent of second-degree murder, and failed to reach an agreement on
Reyes’ guilt, causing a mistrial on the first-degree murder charge pending
against him. The jury’s assignment of culpability to two of the codefend
ants, versus its deadlock over a third who, like respondent, conceded
knowledge of an assault, demonstrates that the jury understood the legal
significance of each defendant’s relative knowledge and intent with respect
to the murder.

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Souter, J., dissenting
III
Because the state-court decision did not result in an “un
reasonable application of . . . clearly established Federal
law,” 28 U. S. C. § 2254(d)(1), the Court of Appeals erred in
granting a writ of habeas corpus to Sarausad. The judg
ment below is reversed, and the case is remanded for further
proceedings consistent with this opinion.
It is so ordered.
Justice Souter, with whom Justice Stevens and Jus
tice Ginsburg join, dissenting.
The issue in this habeas case is whether it was objectively
reasonable for the state court to find that there was no rea
sonable likelihood that the jury convicted respondent Cesar
Sarausad on a mistaken understanding of Washington law.
The underlying question is whether the jury may have
thought it could find Sarausad guilty as an accomplice to
murder on the theory that he assisted in what he expected
would be a fistfight, or whether the jury knew that to convict
him Washington law required it to conclude Sarausad aided
in what he understood was intended to be a killing.
So far as the instructions addressed these alternatives, the
judge charged the jurors in these words:
“A person is an accomplice in the commission of a
crime if, with knowledge that it will promote or facili
tate the commission of the crime, he or she either:
“(1) solicits, commands, encourages, or requests an
other person to commit the crime or
“(2) aids or agrees to aid another person in planning
or committing the crime.” App. 17.
The majority answers the underlying question by relying
on the general rule that incorporating a clear statute into a
jury charge almost always produces an adequate instruction,
which the jury is assumed to follow. The kicker of course is
that the general rule is only good if the incorporated statute

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198 WADDINGTON v. SARAUSAD
Souter, J., dissenting
is clear enough to require the jury to find facts amounting to
a violation of the law as correctly understood.
Does the rule apply here? The majority says it does. It
says the instruction quoted is unambiguous because it par
rots the language of the Washington statute on accomplice
liability, ante, at 191, and that “[i]t is impossible to assign any
meaning to this instruction” and, by extension, the statute,
“different from the meaning given to it by the Washington
courts,” ibid.
That is not, however, what the record shows. Rather
than a single understanding, the Washington courts have
produced a record of discordant positions on the meaning of
the statute, and the Washington Court of Appeals can itself
attest to a degree of difficulty in understanding the statutory
requirement sufficient to show the statute to be ambiguous
and the statute-based instruction constitutionally inade
quate: that court read the statute to mean just the opposite
of what the majority now claims it unambiguously requires.
On Sarausad’s direct appeal in 1998, the State Court of
Appeals set out the principles on which it understood accom
plice liability in Washington to be premised. It did not say
that the accomplice must understand that he is aiding in the
commission of the same offense the principal has in mind,
or the offense actually committed. Instead, the Washington
Court of Appeals said this:
“(1) To convict of accomplice liability, the State need not
prove that principal and accomplice shared the same
mental state, (2) accomplice liability predicates criminal
liability on general knowledge of a crime, rather than
specific knowledge of the elements of the principal’s
crime, and (3) an accomplice, having agreed to partici
pate in a criminal activity, runs the risk that the pri
mary actor will exceed the scope of the preplanned ille
gality.” State v. Ronquillo, No. 35840–5–I etc. (Mar. 2,
1998), App. to Pet. for Cert. 233a, 258a–259a.

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Souter, J., dissenting
In support, the court cited State v. Davis, 101 Wash. 2d 654,
682 P. 2d 883 (1984), in which the Supreme Court of Washing
ton noted that “an accomplice, having agreed to participate
in a criminal act, runs the risk of having the primary actor
exceed the scope of the preplanned illegality.” Id., at 658,
682 P. 2d, at 886. As today’s majority notes, ante, at 186,
the state appellate court remarked that the Washington law
of accomplice liability (as it then understood it) “ ‘has been
reduced to the maxim, “in for a dime, in for a dollar” ’ ”; the
court also held that “it was not necessary for the State to
prove Sarausad . . . knew that there was a potential for gun
play that day.” State v. Ronquillo, supra, at 235a, 266a.
So much for the majority’s confidence that the statute-based
instruction can only be understood as requiring what the
State Supreme Court now says it requires: proof that the
accomplice understood that he was aiding in the commission
of the very crime he is charged with facilitating.
The State Supreme Court clarified this requirement two
years after the Court of Appeals held against Sarausad. In
State v. Roberts, 142 Wash. 2d 471, 14 P. 3d 713 (2000), the
Supreme Court of Washington held that the Court of Ap
peals’s “in for a dime, in for a dollar” view of accomplice
liability was a misreading of the statute and a flatout mis
statement of law. In Roberts, the State Supreme Court re
visited Davis, which it explained as standing for the princi
ple “that an accomplice need not have specific knowledge of
every element of the crime committed by the principal, pro
vided he has general knowledge of that specific crime.” 142
Wash. 2d, at 512, 14 P. 3d, at 736. Although a “general
knowledge” of “that specific crime” intended by a confeder
ate and eventually committed will suffice for the mental ele
ment of accomplice liability, mere “knowledge by the accom
plice that the principal intends to commit ‘a crime’ does not
impose strict liability for any and all offenses that follow.”
Id., at 513, 14 P. 3d, at 736. In other words, it was incorrect

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200 WADDINGTON v. SARAUSAD
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to read the statute as the Supreme Court of Washington had
arguably done in Davis (and the State Court of Appeals cer
tainly did in this case), to mean that anyone who agrees “to
participate in a criminal act . . . runs the risk of [accomplice
liability for a more serious crime if] the primary actor ex
ceed[s] the scope of the preplanned illegality,” 101 Wash. 2d,
at 658, 682 P. 2d, at 886. The reductive maxim “in for a
dime, in for a dollar” was now understood to be a distortion
of Washington’s accomplice-liability law.
The Washington Court of Appeals said as much when
Sarausad appeared before it the second time, seeking post
conviction relief: “[Sarausad] points out, and correctly so,
that this court decided [his direct] appeal on the premise
that ‘in for a dime, in for a dollar’ correctly characterized
Washington accomplice liability law. We said that ‘an ac
complice, “having agreed to participate in a criminal act,
runs the risk of having the primary actor exceed the scope
of the preplanned illegality.” ’ ” Sarausad v. State, 109
Wash. App. 824, 833–834, 39 P. 3d 308, 313 (2001). The
Court of Appeals said that it had “erred” in determining that
it was unnecessary for the State to prove Sarausad knew he
was facilitating a driveby shooting. Id., at 837, 39 P. 3d,
at 315.
This profession of judicial error in understanding the law
is the touchmark not of a clear statute, but of an indistinct
or perplexing one, which the law calls ambiguous. The ma
jority is thus unquestionably mistaken in finding it “impossi
ble to assign any meaning to [the instruction quoting the
statute that is] different from the meaning” the majority
thinks is clear. Ante, at 191. Given that error on the ma
jority’s part, it has not justified its reversal of the Ninth Cir
cuit by showing that the instruction was clear.*
*As the majority notes, ante, at 191–192, n. 4, in the Washington Court
of Appeals on direct review, Sarausad’s counsel claimed that state law
required that an accomplice to murder have a specific intent to kill (or aid
in killing). The Court of Appeals rejected this position. Contrary to the

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Souter, J., dissenting
There remains the question whether the majority’s second
conclusion is also unjustifiable: despite inadequate instruc
tion, did the jurors nevertheless apply the correct view of
state law, which only recently, and after the trial, attained
its current clarity? The state postconviction court found no
reasonable likelihood that the jurors failed to apply a correct
understanding of accomplice liability, Sarausad v. State,
supra, at 843–844, 39 P. 3d, at 318–319, and Sarausad’s bur
den here (on federal habeas) is to demonstrate that the state
court was objectively unreasonable in drawing this conclu
sion, 28 U. S. C. § 2254(d)(1). The District Court and the
Ninth Circuit found he had done just that, whereas the ma
jority today insists those courts were wrong.
The majority’s position is simply unrealistic. Even a juror
with a preternatural grasp of the statutory subtlety would
have lost his grip after listening to the prosecutor’s closing
argument, which first addressed the state law of accomplice
liability with a statement that was flatout error, followed
that with a confusing argument that could have reflected
majority view, ibid., in gauging the adequacy of an instruction incorporat
ing statutory terms, the fact that defense counsel may have asked for too
much does nothing to lessen the pertinence of opaque state law or its
uncertainty in the minds of the state judges. The Court of Appeals in its
very response to counsel’s argument demonstrated its misunderstanding
of the scope of Washington accomplice-liability law: “accomplice liability
predicates criminal liability on general knowledge of a crime.” State v.
Ronquillo, No. 35840–5–I etc. (Mar. 2, 1998), App. to Pet. for Cert. 233a,
259a (emphasis added). For that matter, the Court of Appeals subse
quently disavowed the very statement used by the majority to support its
contention that the court was focused solely on the issue of specific intent.
The court, in the postconviction proceedings, concluded that it was in fact
necessary for the State to prove Sarausad knew Ronquillo had a gun, or
knew there was potential for gunplay that day. Sarausad v. State, 109
Wash. App. 824, 837, 39 P. 3d 308, 315 (2001). This knowledge would have
been necessary regardless of whether the law required Sarausad to have
specific or general intent to kill, unless, of course, accomplice liability was
predicated on an “in for a dime, in for a dollar” theory of liability and
knowledge of a fistfight could suffice.

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202 WADDINGTON v. SARAUSAD
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either the correct or the erroneous view, and concluded with
an argument that could have fit either theory but ended with
a phrase defined to express the erroneous one.
In her first pass at the subject, the prosecutor said
unequivocally that assaultive, not murderous, intent on
Sarausad’s part would suffice for the intent required of an
accomplice to murder.
“Let me give you a good example of accomplice liabil
ity. A friend comes up to you and says, ‘Hold this per
son’s arms while I hit him.’ You say, ‘Okay, I don’t like
that person, anyway.’ You hold the arms. The person
not only gets assaulted, he gets killed. You are an ac
complice and you can’t come back and say, ‘Well, I only
intended this much damage to happen.’ Your presence,
your readiness to assist caused the crime to occur and
you are an accomplice. The law in the State of Wash
ington says, if you’re in for a dime, you’re in for a dollar.
If you’re there or even if you’re not there and you’re
helping in some fashion to bring about this crime, you
are just as guilty.” App. 38.
Thus, in what the majority would launder into “one problem
atic hypothetical,” ante, at 195, the prosecutor introduced
the “in for a dime, in for a dollar” locution, which she defined
to mean that readiness to aid in the commission of any crime
thought to be intended by the principal is enough intent for
accomplice liability for whatever crime the principal actually
commits. This leadoff misstatement of the law, never cor
rected by the trial judge, infects every further statement
bearing on accomplice law the prosecutor made, for into each
effort she consistently introduced the viral catchphrase “in
for a dime, in for a dollar.”
In a second reference to accomplice law, the prosecutor
discussed gang mentality and used the phrase, without modi
fying her earlier explanation of its legal meaning, then fol
lowed up with a reference to the evidence that could have fit

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either the erroneous theory or the law as corrected by
Roberts:
“Mr. Sarausad [was] present and . . . certainly ready
to assist. And I remind you, too, what you heard not
only from . . . the gang expert in this case, but from
[gang] member after [gang] member who told you that
an affront to one is an affront to all, ‘When you disre
spect me you disrespect my gang.’ . . .
“They were all there that day . . . ready to back each
other up in whatever happened. In for a dime, they
were in for a dollar and they were sticking together.
“ . . . You know, the best indication of what was going
on just before the shooting is gleaned by what happened
immediately after the fact. . . . Nothing [was] said to the
[gunman], because there was nothing to say. Nobody
asked him why he did it. They all knew. They all
knew what they were there for. An affront to one is an
affront to all.” App. 40–41.
The confusion of the correct and erroneous theories of lia
bility showed up again in the prosecutor’s final rebuttal:
“Mr. Sarausad’s lawyer says that an accomplice has
to have the same mental state as the person doing the
shooting. . . . Not true, not true. And that’s not what
the instruction says.
“And I’ve told you the old adage, you’re in for a dime,
you’re in for a dollar. If their logic was correct, they’re
not ever an accomplice to anything. The getaway
driver for a bank robbery would say, ‘I just told him to
rob them, I didn’t tell him to shoot him, I didn’t do any
thing.’ The example I gave you earlier, ‘I just told my
friend to hold the arms down of this person while he hit
him, I didn’t tell him to kill him, I’m not guilty of any
thing.’ If you’re in for a dime, you’re in for a dollar.
“When they rode down to Ballard High School that
last time, I say they knew what they were up to. They

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knew they were there to commit a crime, to disrespect
the gang, to fight, to shoot, to get that respect back. A
fist didn’t work, pushing didn’t work. Shouting insults
at them didn’t work. Shooting was going to work. In
for a dime, you’re in for a dollar.” Id., at 123–124.
In the prosecutor’s jumble of rules, one proposition is both
clear and clearly erroneous: the statement of law, “in for a
dime, in for a dollar.” It unmistakably contradicts the con
struction for which Sarausad’s counsel correctly argued,
which would have required the jury to find that Sarausad
understood that the object was killing in order to find him
guilty as an accomplice to murder. Id., at 83–84.
The point here is not to excoriate the prosecutor, who tried
this case in the period between Roberts and Davis and could
fairly assume that her expansive (“in for a dime . . . ”) view
of accomplice liability was good law in her State. The point
is just the obvious one that cannot be evaded without playing
make-believe with the record: an uncertain instruction by
the trial judge was combined with confounding prosecutorial
argument incorporating what the state courts now acknowl
edge was a clearly erroneous statement of law, in contrast to
the view of the law argued by defense counsel. In these
circumstances jury confusion is all but inevitable and jury
error the reasonable likelihood.
If there were any doubt about that, one could simply look
at the record of the jury’s deliberations, in the course of
which the jurors repeatedly asked the court to clarify the law
on accomplice liability. They began deliberating on Friday,
October 21, 1994, and the following Tuesday, they asked (as
to the instructions laying out the crime of first-degree mur
der and the required premeditation), “does the ‘intent’ apply
to (the defendant only) or to (the defendant or his accom
plice)?” App. 126. The judge replied, “Refer to instruc
tions 46 and 47 and consider your instructions as a whole.”
Ibid. Three days later, October 28, this time in reference

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to the second-degree murder instructions, the jury enquired
a second time about accomplice liability, asking whether “in
tentional appl[ies] to only the defendant or only his accom
plice?” Id., at 128. The judge’s response was nearly identi
cal to his first one: “Refer to instructions 45 & 46 and
consider the instructions as a whole.” Ibid. The following
Monday, the jury returned to deliberations and requested
help yet again, spelling out its confusion: “We are having
difficulty agreeing on the legal definition and concept of
‘accomplice.’ . . . [W]hen a person willing[ly] participates in
a group activity, is that person an accomplice to any crime
committed by anyone in the group?” Id., at 129. Once
again, the judge sent the jurors back to the written charge:
“Reread instructions . . . 45, 46, 47, and 48 and consider your
instructions as a whole.” Ibid.
The majority sidesteps the thrust of this record by sug
gesting that the jurors failed to let the court know of any
confusion: it says the jurors’ questions “involved different
criminal charges, and implicated the interrelation of several
different jury instructions.” Ante, at 196. But this simply
ignores the disclosure obviously common to all those ques
tions: the jurors did not understand the state of mind the
prosecution had to prove for accomplice liability. Their final
question makes this unmistakable.
The majority says, in any case, that the judge’s repeated
references back to the written instructions were enough and
that “it was not objectively unreasonable for the state court
to conclude that [the] jury received the answers it needed
to resolve its confusion.” Ibid. But after the jurors
asked three times? In many trials, reference back to writ
ten instructions would be the best way to answer jurors’
questions, which may reflect uncertain memory, not deficient
instruction. But not in this case: the accomplice-liability in
struction was defective owing to the ambiguity of the statu
tory language it incorporated, and its deficiency was under

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206 WADDINGTON v. SARAUSAD
Souter, J., dissenting
scored by the prosecutor’s erroneous argument. Telling the
jurors to read an inadequate instruction three more times
did nothing to improve upon it or enlighten the readers.
The District Court and the Ninth Circuit drew the only con
clusion reasonably possible on this record. I respectfully
dissent.