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Virtually every federal criminal statute has a hidden feature; primary offenders and even their most casual accomplices face equal punishment. This results fromis the work of 18 U.S.C. § 2, which visits the same consequences on anyone who orders or intentionally assists in the commission of a federal crime.
Aiding and abetting means assisting in the commission of someone else's crime. Section 2(a) demands that the defendant embrace the crime of another and consciously do something to contribute to its success. An accomplice must know the offense is afoot if he is to intentionally contribute to its success. While a completed offense is a prerequisite to conviction for aiding and abetting, the hands-on offender need be neither named nor convicted.
On occasion, an accomplice will escape liability, either by judicial construction or administrative grace. This happens most often when there is a perceived culpability gap between accomplice and primary offender. Such accomplices are usually victims, customers, or subordinates of a primary offender.
Section 2(b)(willfully causing a crime) applies to defendants who work through either witting or unwitting intermediaries, through the guilty or the innocent. Whether the intermediary is a subordinate or an undercover government agent, he may be well aware that his conduct constitutes an element of the underlying offense. On the other hand, whether the intermediary is a dupe or a facilitating governmental official, §On other occasions, an accomplice will be charged as a co-conspirator because the facts that will support accomplice liability will ordinarily support conspirator liability and conspiracy is a separate offense.
Section 2(b) (willfully causing a crime) applies to defendants who work through either witting or unwitting intermediaries, through the guilty or the innocent. Section 2(b) applies even if the intermediary is unaware of the nature of his conduct. Section 2(a) requires two guilty parties, a primary offender and an accomplice. Section 2(b) permits prosecution when there is only one guilty party, a "causing" individual and an innocent agent. Both subsections, however, require a completed offense.
Federal courts sometimes mention, but rarely apply, a withdrawal defense comparable to one available in conspiracy cases. Proponents of a general withdrawal defense in §2 cases may find support in recent Supreme Court dicta. In Rosemond, the Court explained that an accomplice must know of the pending substantive offense in order to be shown to have embraced its commission. It did so in a manner suggesting that an accomplice might be able to withdraw and escape liability prior to the commission of the substantive offense, even if he had contributed to the crime's ultimate successDefendants are more likely to succeed by attacking the elements for liability, that is, arguing that they did not knowingly intend to commit the underlying offense or that no underlying offense ever occurred.
There is no general civil aiding and abetting statute. Aiding and abetting a violation of a federal criminal law does not trigger civil liability unless Congress has said so in so many words.
This report is available in an abridged version as CRS Report R43770, Aiding, Abetting, and the Like: An Abbreviated Overview of 18 U.S.C. 2, by [author name scrubbed].
Virtually every federal criminal statute has a hidden feature; helpers and hands-on offenders face the same punishment. This results from1 This is the work of 18 U.S.C. § 2, which treats hands-on offenders and their accomplices (aiders and abettors) alike. This accomplice2, which visits the same consequences on anyone who orders or assists in the commission of a federal crime. This secondary liability is much like that which accompanies conspiracy,2 and the rationale is the same for both: society fears the crimes of several more than the crimes of one.1
At common law as a general rule, felonies were punishable by death3 Aiding and abetting, unlike conspiracy, is not a separate crime; instead it serves as an alternative means of incurring criminal liability for the underlying offense.4
Background
At English common law, felonies were punishable by death in most instances. An individual might be guilty of a felony as a principal in the first degree, a principal in the second degree, an accessory before the fact, or an accessory after the fact.25 A principal in the first degree was he who by his own hand committed the crime.3 A principle6 A principal in the second degree was "he who [was] present, aiding, and abetting the fact to be done."47 An accessory before the fact was "one, who being absent at the time of the crime committed, doth yet procure, counsel, or command another to commit a crime."58 An accessory after the fact was one who, "knowing a felony to have been committed, receive[d], relieve[d], comfort[ed], or assist[ed] the felon."69 The common law erected several procedural barriers for the benefit of accessories in felony cases,710 apparently to shield them from the death penalty.811
When the first Congress convened, it outlawed as capital offenses piracy and related murders and robberies.912 At the same time, it merged the concepts of principal in the second degree (those who aided and abetted) and accessory before the fact (those who commanded and counseled) in piracy cases, condemning to death anyone who "knowingly and wittingly aid[ed] and assist[ed], procure[d], commanded[ed], counsel[ed] or advise[d] any person or persons, to do or commit any murder or robbery, or other piracy aforesaid, upon the seas."1013
The Revised Statutes, the first official codification of federal law, carried the piracy provision forward with slight modifications.1114 It remained for the 1909 codification of federal criminal law to extend coverage beyond a few individual offenses like piracy to the general coverage now found in 18 U.S.C. § 2(a).1215 The commission, established in 1897 to recommend a proposed United States Penal Code,1316 urged from the beginning the elimination of the common law distinctions between principals and accessories before the fact.1417 Congress acted on its recommendation in 1909.15
Congress carried the 1909 provision forward in its 1948 recodification. It added §Section 2(b), however, to "remove[] all doubt that one who puts in motion or assists in the illegal enterprise or causes the commission of an indispensable element of the offense by an innocent agent or instrumentality, is guilty as a principal even though he intentionally refrained from the direct act constituting the completed offense."1619 Three years later, it made the final adjustments to §Section 2 as part of a general, housekeeping cleanup of the U.S. Code.1720
(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.
21 Conviction under Section 2(a) requires that a defendant embrace the crime of another and consciously do something to contribute to its successSection 2(a), the aiding and abetting subsection, is more frequently prosecuted than §2(b), the causes subsection. Although its elements are variously described, it is often said that, "[i]n order to aid and abet another to commit a crime it is necessary [1] that a defendant in some sort associate himself with the venture, [2] that he participate in it as in something that he wishes to bring about, [and] 3]that he seek by his action to make it succeed."18
Aiding and abetting means assisting in the commission of someone else's crime.19 Section 2(a) demands that a defendant embrace the crime of another and consciously do something to contribute to its success.20,"22 and [4] that someone commits the offense.23 Satisfying only one of these elements is not enough. Thus, presence at the commission of a crime or close association with the perpetrator does not constitute aiding and abetting, without more.24 Yet, a defendant's level of participation may be relatively minimal and need not advance every element of the crime.25 As for seeking to make it succeed, the defendant must intend the commission of the underlying offense, and that intent requires that he be aware beforehand of the scope of the offense in order to permit him to disassociate himself.26 Thus, the defendant must know that the offense is afoot before it occurs if he is to be convicted of aiding and abetting.21
However, it is not necessary that the defendant must aid in every aspect of the substantive offense. At common law:
where several acts constitute[d] together one crime, if each [was] separately performed by a different individual[,] . . . all [were] principals as to the whole. . . . Indeed, . . . a person's involvement in the crime could be not merely partial but minimal too: [t]he quantity [of assistance was] immaterial, so long as the accomplice did something to aid the crime. . . . That principal continues to govern aiding and abetting law under §2."22
Yet, neither knowledge without assistance nor assistance without intent are enough.23 Moreover, §2(a) requires that someone else commit a federal offense, because "[a]iding and abetting is not itself a federal offense, but merely describes the way in which a defendant's conduct resulted in the violation of a particular law."24 In Standefer, the Supreme Court rejected the petitioner's contention that "he could not be convicted of aiding and abetting a principal, Niederberger, when that principal had been acquitted of the charged offense."25 That view still prevails. A completed offense is a prerequisite to conviction for aiding and abetting, but the hands-on offender need be neither named nor convicted.26
As a general rule, the defendant's aiding and abetting must come before or at the time of the offense.27 Assistance given after the crime has occurred is a separate, less severely punished, offense – acting as an accessory after the fact.28
Whether by prosecutorial discretion or judicial pronouncement,29 accomplices sometimes void the application of federal principles of secondary criminal liability which usually govern conspiracy as well as aiding and abetting cases.30 It happens most often when there is a substantial culpability gap between the accomplice or co-conspirator and the primary offender. The cases ordinarily involve one of three types of accomplices or co-conspirators: victims, customers, and subordinates.31
In Standefer v. United States, the Supreme Court rejected the petitioner's contention that "he could not be convicted of aiding and abetting a principal, Niederberger, when that principal had been acquitted of the charged offense."28 That view still prevails. A completed offense is a prerequisite to conviction for aiding and abetting, but the hands-on offender need be neither named nor convicted.29 As a general rule, the defendant's aiding and abetting must come before or at the time of the offense.30 The general rule, however, does not always apply when the defendant's assistance straddles elements of the offense. At common law, robbery consisted of forceful taking the personal property of another from his person and carrying it away.31 The federal bank robbery statute carries forward this notion when it outlaws "taking and carrying away" a bank's money.32 Thus in a sense aiding another to escape, that is to "carry away" the proceeds of a robbery, might be considered aiding and abetting before the crime is over. A number of courts have concluded that one who assists a bank robber to escape may be charged with aiding and abetting.33 Elsewhere, assistance given after the crime has occurred is ordinarily treated as a separate, less severely punished, offense—acting as an accessory after the fact.34 Conviction requires the government to "demonstrate (1) the commission of an underlying offense against the United States; (2) the defendant's knowledge of that offense; and (3) assistance by the defendant in order to prevent the apprehension, trial, or punishment for the offender."35 A defendant cannot be convicted as an accessory before the fact and an accessory after the fact.36 Whether by prosecutorial discretion or judicial pronouncement,37 accomplices sometimes void the application of federal principles of secondary criminal liability which usually govern conspiracy and aiding and abetting cases.38 It happens most often when there is a substantial culpability gap between the accomplice or co-conspirator and the primary offender. The cases frequently involve one of three types of accomplices or co-conspirators: victims, customers, or subordinates.39"Victims" include "persons who pay extortion, blackmail, or ransom monies."32 Not every victim qualifies for the exception. Some do. Some do not. Culpability makes a difference.33 For instance, the Hobbs Act outlaws extortion by public officials.34 27
3543
"Customers" who have escaped conviction as co-conspirators or accomplices include drinkers, bettors, johns, and drug addicts. Examples from the Supreme Court include United States v. Farrar and Rewis v. United States. In Farrar, the Court held a speakeasy's customers could not be prosecuted as aiders and abettors of the establishment's unlawful sale of liquor.3644 In Rewis, it reached the same conclusion for the customers of a gambling den. Rewis had been convicted of interstate travel in aid of unlawful gambling, following a jury charge that included an aiding and abetting instruction. The Court concluded that Congress had not intended mere bettors to be covered.3745 It later indicated that the same could be said of the federal gambling business statute, 18 U.S.C. § 1955, when it observed that "§1955 proscribes any degree of participation in an illegal gambling business, except participation as a mere bettor."38 The same46 Comparable logic may cover a prostitute's customer also.47.39
The federalFederal Controlled Substances Act (CSA) reinforces the preexisting view that a drug trafficker's customers cannot be prosecuted co-conspirators or aiders and abettors in his trafficking. Prior to the Act, federal law punished the trafficker but not his customer.4048 Since enactment of the CSA, federal law punishes the trafficker severely for possession with intent to distribute, but it punishes the customer for simply possession, ordinarily as a misdemeanor.4149
"Subordinates" have more difficulty avoiding secondary liability. Nevertheless, in Gebardi, the Supreme Court held that a woman who agreed to be transported in interstate commerce for immoral purposes could not be charged with conspiracy to violate the Mann Act, which outlawed interstate transportation of a woman for immoral purposes.4250 Later lower federal courts continued to honor the Gebardi construction of the Mann Act, but limited it to cases in which the prostitute did no more than acquiesce in her interstate transportation.4351 Moreover, Occupational Safety and Health Act's (OSHA) provisions do not allow employees of an OSHA offender to be prosecuted as aiders and abettors.4452 On the other hand, no such benefit accrues to subordinates supervised by offenders of the federal gambling business statute, which condemns those who own or supervise an unlawful gambling enterprise which involves direction of five or more individuals.4553 There is no consensus over how subordinates of a drug kingpin may be treated.4654
(b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.
Although the55
The words "commands, induces or procures" in §Section 2(a) would seem to capture crimes committed through an agent, as the 1948 report explained the language of §2(b) leaves no doubt. Section 2(b)intermediary. Congress enacted Section 2(b), however, to make it clear that the section applies to defendants who work through either witting or unwitting intermediaries, through the guilty or the innocent. Whether the intermediary is a subordinate or an undercover government agent, he may be well aware that his conduct constitutes an element of the underlying offense.47 On the other hand, whether the intermediary is a dupe or a facilitating governmental official, §2(b) also applies even if he is unaware of the nature of his conduct.48
culpable or innocent intermediaries.56 And the courts have construed Section 2(b) to apply whether a defendant works through culpable or innocent intermediaries.57 When the intermediary is an innocent party, no one but the "causing" individual need commitbe charged the underlying offense.4958 Yet there must be an underlying crime. Section 2(b) imposes no liability unless the actions of the defendant and his intermediary, taken together, constitute an offense.5059
Congress gave little indication of its purpose when it changed "causes" to "willfully causes," in 1951. The amendment originated in Senate Judiciary Committee, after the House had passed its version of the bill.5160 The Committee Report explained why it changed "is a principal" to "is punishable as a principal," but said nothing about why it added the word "willfully."5261 There has been some speculation that the word "willfully" was added to address an observation by Judge Learned Hand. Judge Hand had observed that §Section 2(a) had a mental element ("knowing"), but that §Section 2(b) had no comparable element.5362 In any event and although it seems far from certain, it appears that the courts understand "willfully" to mean a dual form of "intentionally." They believe that an individual "willfully" causes an offense when he intends the commission of conduct that constitutes a crime and then intentionally uses someone else to commit it.54be part of dual form of required intent. The individual must purposefully cause another to commit a necessary element of the offense and the individual must do so with the intent necessary for commission of the underlying offense.63 An individual may incur liability under §Section 2(b) even if he is unaware that the underlying conduct is in fact a crime, unless the underlying offenses requires guilty knowledge.64.55
Federal courts sometimes mention aan aid-and-abetting withdrawal defense comparable to one available in conspiracy cases.5665 In conspiracy, withdrawal is not a defense for conspiracy itself, but it may be a defense for liability for co-conspirator offenses but only for the crimes committed in foreseeable furtherance of the scheme after the defendant's withdrawal.57 "66 To establish withdrawal from a conspiracy, the defendant has the burden to demonstrate show "that he took affirmative action by making a clean breastreporting to the authorities or by communicating his withdrawal in a manner reasonably calculated to reach his coconspirators."58
In aiding and abetting, the withdrawal defense in federal cases is at most less well established that its conspiracy counterpart. "[I]t is unsettled if a defendant can withdraw from aiding and abetting a crime. Other courts have reached varying results when considering the applicability of the withdrawal defense to the federal accomplice liability statute."68
An aiding and abetting defense is more likely to take the form of an attack on one of the elements for liability. For example, an individual charged with an uncompleted offense has a perfect defense, because aiding and abetting liability requires a completed offense.69 By the same token, an individual who unwittingly assists the commission of the crime of another faces no liability under Section 2, because an accomplice incurs liability only if he knowingly embraces the crime of another as something he wishes to succeed.70 As for seeking to make it succeed, the defendant must intend the commission of the underlying offense, and that intent requires that he be aware beforehand of the scope of the offense in order to permit him to disassociate himself.71 Thus, the defendant must know that the offense is afoot before it occurs if he is to be convicted of aiding and abetting.72In aiding and abetting, the withdrawal defense in federal cases may be more limited.59 Certainly, an individual faces no liability under §2(a) if the underlying offense goes uncommitted as a consequence of the withdrawal of his necessary assistance. Aiding and abetting needs a completed offense.60 The question is more difficult in cases where the crime blooms in spite of an abettor's abandonment. "[I]t is unsettled if a defendant can withdraw from aiding and abetting a crime. Other courts have reached varying results when considering the applicability of the withdrawal defense to the federal accomplice liability statute."61
Proponents of a general withdrawal defense may claim support from recent dicta in Rosemond. Rosemond had been convicted of two crimes, distributing marijuana (21 U.S.C. 841) and discharging a firearm during a drug trafficking offense (18 U.S.C. 924(c)).62 The Tenth Circuit had upheld an alternative aiding and abetting instruction concerning the firearm charge.63 The Supreme Court explained that an accomplice must know of the substantive offense beforehand in order to be shown to have embraced its commission. It did so in a manner suggesting an accomplice might be able to withdraw and escape liability prior to the commission of the substantive offense, even if he had contributed to the crime's ultimate success:
For all that to be true, though, the §924(c) defendant's knowledge of a firearm must be advance knowledge – or otherwise said, knowledge that enables him to make the relevant legal (and indeed, moral) choice. When an accomplice knows beforehand of a confederate's design to carry a gun, he can attempt to alter that plan or, if unsuccessful, withdraw from the enterprise; it is deciding instead to go ahead with his role in the venture that shows his intent to aid an armed offense. But when an accomplice knows nothing of a gun until it appears at the scene, he may already have completed his acts of assistance; or even if not, he may at that late point have no realistic opportunity to quit the crime. And when that is so, the defendant has not shown the requisite intent to assist a crime involving a gun. As even the Government concedes, an unarmed accomplice cannot aid and abet a §924(c) violation unless he has "foreknowledge that his confederate will commit the offense with a firearm." For the reasons just given, we think that means knowledge at a time the accomplice can do something with it—most notably, opt to walk away. [Of course, if a defendant continues to participate in a crime after a gun was displayed or used by a confederate, the jury can permissibly infer from his failure to object or withdraw that he had such knowledge . . .]. 134 S.Ct. 1249-250 (pertinent parts of footnote 9 of the opinion in brackets)(emphasis added in italics; emphasis of the Court in bold).
* * *
The Government, for its part, thinks we take too strict a view of when a defendant charged with abetting a §924(c) violation must acquire that knowledge. As noted above, the Government recognizes that the accused accomplice must have "foreknowledge" of a gun's presence. But the Government views that standard as met whenever the accomplice, having learned of the firearm, continues any act of assisting the drug transaction. According to the Government, the jury should convict such a defendant even if he became aware of the gun only after he realistically could have opted out of the crime.
But that approach, we think, would diminish too far the requirement that a defendant in a §924(c) prosecution must intend to further an armed drug deal. Assume, for example, that an accomplice agrees to participate in a drug sale on the express condition that no one brings a gun to the place of exchange. But just as the parties are making the trade, the accomplice notices that one of his confederates has a (poorly) concealed firearm in his jacket. The Government would convict the accomplice of aiding and abetting a §924(c) offense if he assists in completing the deal without incident, rather than running away or otherwise aborting the sale. But behaving as the Government suggests might increase the risk of gun violence—to the accomplice himself, other participants, or bystanders; and conversely, finishing the sale might be the best or only way to avoid that danger. In such a circumstance, a jury is entitled to find that the defendant intended only a drug sale—that he never intended to facilitate, and so does not bear responsibility for, a drug deal carried out with a gun. A defendant manifests that greater intent, and incurs the greater liability of §924(c), when he chooses to participate in a drug transaction knowing it will involve a firearm; but he makes no such choice when that knowledge comes too late for him to be reasonably able to act upon it. [Contrary to the dissent's view, nothing in this holding changes the way the defenses of duress and necessity operate. . . . Our holding is grounded in the distinctive intent standard for aiding and abetting someone else's act. . . . For the reasons just given, we think that intent standard cannot be satisfied if a defendant charged with aiding and abetting a §924(c) offense learns of a gun only after he can realistically walk away . . . .]. 134 S.Ct. 1251 (pertinent parts of footnote 10 of the opinion in brackets)(emphasis added in italics; emphasis of the Court in bold).
"Congress has not enacted a general civil aiding and abetting statute. . . . Thus, when Congress enacts a statute under which a person may sue and recover damages from a private defendant for the defendant's violation of some statutory norm, there is no general presumption that the plaintiff may also sue aiders and abettors."6473 With this in mind, the courts have concluded, for example, that aiders and abettors incur no civil liability as a consequence of their violations of the Anti-Terrorism Act;6574 the Electronic Communications Privacy Act;6675 the Stored Communications Act;67 or RICO.68
| 1. | Author Contact Information This report is available in an abridged version as CRS Report R43770, Accomplices, Aiding and Abetting, and the Like: An Abbreviated Overview of 18 U.S.C. § 2, by Charles Doyle, without the footnotes, attributions, and citations to authority that appear here. United States v. Scott, 892 F.3d 791, 799 (5th Cir. 2018) ("Typically, the same evidence will support both a conspiracy and an aiding and abetting conviction."). |
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5.
United States v. Diaz, 941 F.3d 729, 742 (5th Cir. 2019); United States v. Williams, 941 F.3d 234, 237 (6th Cir. 2019). |
4 William Blackstone, Commentaries 34-37 (1769). |
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Id. at 34. |
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Id. (transliteration supplied). |
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Id. at 36 (transliteration supplied). |
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Id. at 37 (transliteration supplied). |
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Id. at 39-40. |
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Standefer v. United States, 447 U.S. 10, 15 (1980) |
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1 Stat. 113-14 (1790). |
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Id. at 114. For several decades thereafter Congress would occasionally enact an accessories provision with respect to a specific crime, |
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Section 332, 35 Stat. 1152 (1909)("Whoever directly commits any act constituting an offense defined in any law of the United States, or aids, abets, counsels, commands, induces, or procures its commission, is a principal."). |
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30 Stat. 58 (1897); see also, 31 Stat. 1181 (1901). |
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Penal Code of the United States: Report of the Commission to Revise and Codify the Criminal and Penal Laws of the United States, S.Doc. 68, Pt.2, |
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Standefer v. United States, 447 U.S. 10, 19 (1980) ("The Commission's recommendation was adopted without change. The House and Senate Committee Reports, in identical language, stated its intended effect: 'The committee has deemed it wise to make those who are accessories before the fact at common law principal offenders. . . .'"), quoting, S. Rep. No. 60-10, at 13 (1908) and H.R. Rep. No. 60-2 (1908). The text of 1909 provision is quoted in footnote |
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18 U.S.C. § 2, Historical and Statutory Notes |
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P.L. 52-248, § 17b, 65 Stat. 710, 717 (1951), amending 18 U.S.C. § 2(b) to read: "Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal." (Amending language in italics). |
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22.
18 U.S.C. § 2(a). |
Nye & Nissen v. United States, 336 U.S. 613, 619 | ||||||
| 19. |
"Aiding and abetting" has now come to mean "assisting," |
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| 24.
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United States v. Tanco-Baez, 942 F.3d 7, 27 (1st Cir. 2019) ("Mere association with the principal, or mere presence at the scheme of a crime, even when combined with knowledge that a crime will be committed, is not sufficient to establish aiding and abetting liability."); United States v. Deiter, 890 F.3d 1203, 1214 (10th 2018); United States v. Seabrooks, 839 F.3d 1326, 1333 (11th Cir. 2016). |
Rosemond v. United States, 134 S.Ct. 1240, 1245 (2014), quoting, Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 181 (1994)("[T]hose who provide knowing aid to persons committing federal crimes, with the intent to facilitate the crime, are themselves committing a crime). |
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| 21. |
Rosemond v. United States, 134 S.Ct. at 1249 ("So for purposes of aiding and abetting law, a person who actively participates in a criminal scheme knowing its extent and character intends that scheme's commission"); United States v. Goldtooth, 754 F.3d 763, 768 (9th Cir. 2014)("To aid and abet a robbery, however, Appellants must have had foreknowledge that the robbery was to occur"); United States v. Garcia, 752 F.3d 382, 389 n.6 (4th Cir. 2014) ("Participation in every stage of an illegal venture is not required, only participation at some stage accompanied by knowledge of the result and intent to bring about that result"). |
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Rosemond v. United States | ||||||||
| 23. |
United States v. Rufai, 732 F.3d 1175, 1190 (10th Cir. 2013)("Liability as an aider and abettor is based on the act of intentionally counseling, aiding, or assisting another in the commission of a crime. One need not participate in an important aspect of a crime to be liable as an aider and abettor; participation of relatively light moment is sufficient. Every mere words or gestures of encouragement constitute affirmative acts capable of rendering one liable under this theory. There is no need for actual communication between the aider and abettor and the principal or for the aider and abettor to know by whom the crime is actually perpetrated. Nevertheless, the Government must make some showing of intent to further the criminal venture. A defendant may not stumble into aiding and abetting liability by inadvertently helping another in a criminal scheme unknown to the defendant. Even presence at the scene of the crime or knowledge that a crime is being committed is insufficient. To be convicted of aiding and abetting a defendant just share in the intent to commit the underlying offense"); United States v. Rosalez, 711 F.3d 1194, 1205 (10th Cir. 2013)("To aid and abet another to commit a crime . . . . [t]here must be some showing of intent to further the criminal venture. Mere presence at the scene or knowledge alone that a crime is being committed is insufficient. A defendant must share in the intent to commit the underlying offense"). |
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| 24. |
United States v. Barefoot, 754 F.3d 226, 239 (4th Cir. 2014); United States v. Shorty, 741 F.3d 961, 969-70 (9th Cir. 2013); United States v. Rufai, 732 F.3d 1175, 1190 (10th Cir. 2013). |
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Rosemond, 572 U.S. at 77-8 ("So for purposes of aiding and abetting law, a person who actively participates in a criminal scheme knowing its extent and character intends that scheme's commission … [W]e think that means knowledge at a time the accomplice can do something with it—most notably, opt to walk away."). 27.
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Id.; Tanco-Baez, 942 F.3d at 27; United States v. Jackson, 913 F.3d 789, 792-93 (5th Cir. 2019); United States v. Daniel, 887 F.3d 350, 356 (8th Cir. 2018); United States v. Goldtooth, 754 F.3d 763, 768 (9th Cir. 2014) ("To aid and abet a robbery, however, Appellants must have had foreknowledge that the robbery was to occur"). |
Standefer v. United States, 447 U.S. 10, 13- |
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United States v. Bowens, 907 F.3d 347, 351 (5th Cir. 2018); United States v. Litwok, 678 F.3d 208, 213 n.1 (2d Cir. 2012) ("The Government never clearly identified whom Litwok aided and abetted in this fraud. [Yet,][t]o show a violation of 18 U.S.C. § 2 it is not necessary to identify any principal at all, provided the proof shows that the underlying crime was committed by someone."); United States v. Mullins, 613 F.3d 1273, 1290 ( |
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United States v. Figueroa-Caragena, 612 F.3d 69, 73- 18 U.S.C. § 2113(b). |
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18 U.S.C. § 3 ("Whoever, knowing that an offense against the United States has been committed, receives, relieves, comforts or assists the offender in order to hinder or prevent his apprehension, trial or punishment, is an accessory after the fact. Except as otherwise expressly provided by any Act of Congress, an accessory after the fact shall be imprisoned not more than one-half the maximum term of imprisonment or (notwithstanding section 3571) fined not more than one-half the maximum fine prescribed for the punishment of the principal, or both; or if the principal is punishable by life imprisonment or death, the accessory shall be imprisoned not more than 15 years."). 35.
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United States v. White, 771 F.3d 225, 232-33 (4th Cir. 2014); United States v. Gianakos, 415 F.3d 912, 919 n.4 (8th Cir. 2005); United States v. De La Rosa, 171 F.3d 215, 221 (5th Cir. 1999). 36.
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Taylor, 322 F.3d at 1212. 37.
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Judicial action is reflected in reported case law. The decision to forgo a prosecution ordinarily is not. Nevertheless, relative culpability that plays an important role in the charging decision. U.S. Dept. of Justice, Justice Manual JM 9-27.230 (2018). |
18 U.S.C. 3. |
| 29. |
Judicial action is reflected in reported case law. The decision to forgo a prosecution ordinarily is not. Nevertheless, relative culpability that plays an important role in the charging decision, U.S. Attorneys' Manual, §9-27.230 [B][4]("Although the prosecutor has sufficient evidence of guilt, it is nevertheless appropriate for him/her to give consideration to the degree of the person's culpability in connection with the offenses, both in the abstract and in comparison with any others involved in the offense. If for example, the person was a relatively minor participant in a criminal enterprise conducted by other . . . and no other circumstances require prosecution, the prosecutor might reasonably conclude that some course other than prosecution would be appropriate"). |
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Conspirators, like aiders and abettors, can be held liable for crimes actually committed by others under the Pinkerton doctrine. The Pinkerton doctrine "renders all co-conspirators criminally liable for reasonably foreseeable overt acts committed by others in furtherance of the conspiracy," United States v. Gadson, 763 F.3d 1189, 1214 ( | ||||||||
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The First Circuit in Southard offered a slightly different classification scheme: victims, specially protected individuals, and minor parties in an offense requiring group participation |
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E.g., United States v. Brock, 501 F.3d 762, 700 ( |
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18 U.S.C. § 1951 ("(a) Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by . . . extortion . . . shall be fined under this title or imprisoned not more than twenty years, or both. (b) As used in this section . . . (2) The term 'extortion' means the obtaining of property from another, with his consent . . . color of official right . . ."). |
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E.g., It is perhaps with this in mind, that the corrupted foreign official is sometimes considered the victim, or at least someone beyond secondary criminal liability, under the Foreign Corrupt Practices Act, which outlaws the corruption of foreign officials on behalf of U.S. corporate entities |
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The lower court had quashed the indictment charging Farrar on the ground that an ordinary purchaser of liquor was not covered by the section of the Prohibition Act under which he was charged. The indictment did not charge him with aiding and abetting the seller's violation. The court indicated, however, that if it had, still no crime could be charged because other the sale the customer had done nothing to aid or abet the seller's enterprise |
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Rewis v. United States, 401 U.S. 808, 811 (1971) ("We agree with the Court of Appeals that it cannot be said, with certainty sufficient to justify a criminal conviction, that Congress intended that interstate travel by mere customers of a gambling establishment should violate the Travel Act."). |
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Sanabria v. United States, 437 U.S. 54, 71 n.26 (1978). |
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E.g., United States v. Southard, 700 F.2d1, 20 ( |
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E.g., Nigro v. United States, 117 F.2d 624, 629 ( |
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E.g., |
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Gebardi v. United States, 287 U.S. 112, 123 (1932) ("[W]e perceive in the failure of the Mann Act to condemn the woman's participation in those transportations, which are effected with her mere consent, evidence of an affirmative legislative policy to leave her acquiescence unpunished. . . . On the evidence before us the woman petitioner has not violated the Mann Act, and we hold, is not guilty of a conspiracy to do so. As there is no proof that the man conspired with anyone else to bring about the transportation, the convictions of both petitioners must be reversed."). |
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United States v. Footman, 215 F.3d 145, 151-52 ( |
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The OSHA criminal statute condemns "any employer who willfully violates [an OSHA] standard, rule, or order," 29 U.S.C. 666(e). United States v. Shear, 962 F.2d 488, 490 (5th Cir. 1992) ("The Seventh Circuit held that Congress did not intend to subject employees to aiding and abetting liability under OSHA. We are in general agreement with the Seventh Circuit's reasoning and holding in Doig,") United States v Doig, 950 F.2d 411, 412 (7th |
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United States v. Hill, 55 F.3d |
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The judges of the Seventh Circuit sitting en banc did not agree. They could not overcome the substantial obstacle to recognition of any aid and abetting exception, United States v. Pino-Perez, 870 F.2d 1230, 1237 ( |
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| 47. | 18 U.S.C. § 2(b). |
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E.g., |
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United States v. Cohen, 260 F.3d 68, 77 (2d Cir. 2001) ("Section 2(a) requires proof that someone other than the defendant committed the underlying crime. Instead, the district court charged the jury under § 2(b), which requires only that the defendant willfully cause another person to commit an act which would have been a crime had the defendant committed it himself. Section 2(b), unlike § |
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United States v. |
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Compare, H.R. Rep. No. 82-462, at 6, 27 (1951), with S. Rep. No. 82-1020, at 7-8, 26-7 (1951). |
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Id. at 7 ("This section is intended to clarify and make certain the intent to punish aiders and abettors regardless of the fact that they may be incapable of committing the specific violation which they are charged to have aided and abetted"). |
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1 Working Papers of the National Commission on Reform of Federal Criminal 154 n.2 (1970) ("Subsection 2(b) was added to the complicity section by the 1958 revisers. Upon the basis of criticism by Judge Learned Hand in United States v. Chiarella, 184 F.2d 903, 909-10 (1950), . . . the words 'willfully' and 'or another' were inserted."); see also, G. Robert Blakey & Keven P. Roddy, Reflections on Reves v. Ernst & Young: Its Meaning and Impact on Substantive Accessory, Aiding, Abetting and Conspiracy Liability Under RICO, 33 |
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United States v. Wright, 363 F.3d 237, 242-43 (3d Cir. 2004); United States v. Whab, 355 F.3d 155, 161 (2d Cir. 2004) ("[T]he government is not required to prove a knowing violation of the law under section 2(b)"); United States v. Hollis, 971 F.2d 1441, 1451 ( |
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United States v. Burks, 678 F.3d 1190, 1195 ( | ||||||||
| 57. |
Smith v. United States, 133 S.Ct. 714, 719 (2013)("Withdrawal terminates the defendant's liability for post-withdrawal acts of his co-conspirators, but he remains guilty of conspiracy"); United States v. Ortega, 750 F.3d 1020, 1024 (8th Cir. 2014)("A defendant is liable for the reasonably foreseeable actions taken by coconspirators in furtherance of the conspiracy unless he affirmatively withdraws from the conspiracy"); United States v. Salazar, 751 F.3d 326, 331 (5th Cir. 2014)("To be timely, the withdrawal must precede the commission of an over act. In essence, the government must not be able to show a completed conspiracy. For purposes of absolving liability for the conspiracy charge, withdrawal is impossible once an overt act has been committed. If the conspiracy does not even require the commission of an over act, a defendant can never timely withdraw and can never negate liability as to the conspiracy charge"). |
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| 58. |
United States v. Ortega, 750 F.3d at 1024; United States v. Morgan, 748 F.3d 1024, 1037 (10th Cir. 2014); United States v. Stewart, 744 F.3d 17, 24 (1st Cir. 2014). |
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| 59. |
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United States v. Patton, 927 F.3d 1087, 1096 (10th Cir. 2019); United States v. Sitzmann, 893 F.3d 811, 825 (D.C. Cir. 2018); United States v. Shephard, 892 F.3d 666, 673 (4th Cir. 2018). |
United States v. Burks, 678 F.3d 1190, 1195 ( |
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| 70.
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Rosemond v. United States, 572 U.S. 65, 76 (2014) ("To aid and abet a crime, a defendant must not just in some sort associated himself with the venture, but also participate in it as in something that he wishes to bring about and seek by his action to make it succeed."); United States v. Diaz, 941 F.3d 729, 741 (5th Cir. 2019) ("To be convicted under an aiding and abetting theory, the defendant must share in the principal's criminal intent …"); United States v. Rodriguez-Torres, 939 F.3d 16, 43 (1st Cir. 2019) ("It is enough to say that a person is liable for aiding and abetting if he consciously shared the principal's knowledge of the underlying crime and intended to help the principal accomplish it."). 71.
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Rosemond, 572 U.S. at 77-8 (2014) ("So for purposes of aiding and abetting law, a person who actively participates in a criminal scheme knowing its extent and character intends that scheme's commission … [W]e think that means knowledge at a time the accomplice can do something with it—most notably, opt to walk away."). 72.
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Id.; Tanco-Baez, 942 F.3d at 27; United States v. Jackson, 913 F.3d 789, 792-93 (5th Cir. 2019); United States v. Daniel, 887 F.3d 350, 356 (8th Cir. 2018); United States v. Goldtooth, 754 F.3d 763, 768 (9th Cir. 2014) ("To aid and abet a robbery, however, Appellants must have had foreknowledge that the robbery was to occur."). | Id. at 1154-156. |
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Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 182 (1994). |
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Rothstein v. UBS AG, 708 F.3d 82, 97-8 (2d Cir. 2013); Boim v. Holy Land Foundation for Relief and Development, 549 F.3d 685, 689-90 ( |
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Kirch v. Embarq Management Co., 702 F.3d 1245, 1246-247 ( |
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Freeman v. DirecTV, Inc., 457 F.3d 1001, 1006 (9th Cir. 2006); Vista Marketing, LLC v. Burkett, 999 F. Supp. 2d 1294, 1296 (M.D. Fla. 2014). |
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Pennsylvania Ass'n of Edwards Heirs v. Rightenour 78.
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Noble v. Weinstein, 335 F. Supp. 3d 504, 525 (S.D.N.Y. 2018). |