Aiding and Abetting

Rosemond v. United States, --- S. Ct. – (2014)

In order to be found guilty on an aiding and abetting theory, the defendant must intend that the crime be committed and this “intention” must encompass the whole crime, not just one element. In Rosemond, the defendant was charged with aiding and abetting the offense of carrying a gun in connection with a drug offense in violation of 18 U.S.C. § 942(c). While his conduct need only aid a part of this crime (such as the drug offense), his intention must encompass the entire crime: both the drug offense and the firearm carrying offense. Moreover, his “intention” must precede his conduct. He must know, in advance, that one of his cohorts would be armed. It is not sufficient that he learned during the commission of the drug offense that one of his cohorts was armed.

United States v. Encarnacion-Ruiz, 787 F.3d 581 (1st Cir. 2015)

In a child pornography production case, if a defendant is charged with aiding and abetting the production of child porn, a mistake of fact (the child’s age) is a defense. Unlike the principal perpetrator, who cannot raise this defense, pursuant to Rosemond v. United States, an aider and abettor must have the intent to commit the offense including all elements of the crime.

United States v. Rodriguez-Martinez, 778 F.3d 367 (1st Cir. 2015)

The defendant was a passenger in a car. When the car was pulled over, the defendant got out, walked to the corner and made a phone call. Drugs were found in the possession of the driver. The defendant was visibly nervous. A gun was found in the possession of the defendant. The First Circuit held that this evidence was insufficient to convict the defendant of aiding and abetting the possession with intent to distribute the drugs. His nervousness did not prove that he knew the driver was in possession of drugs and may just as well have reflected his concern about his own possession of the firearm. In addition, the court reversed the driver’s conviction of possessing a firearm in furtherance of a drug offense (the gun was possessed by the passenger). Because there was insufficient evidence that the driver, who possessed the drugs, knew that the passenger possessed a gun, he could not be convicted of the § 924(c) offense.

United States v. Goldtooth, 754 F.3d 763 (9th Cir. 2014)

The government failed to prove that the defendant was aware that his colleague would rob the victim of tobacco that he had on his lap. Citing Rosemond v. United States, the Ninth Circuit held that to be guilty on an aiding and abetting theory, the government must prove that the defendant was aware of his colleagues’ intention to commit the crime prior to the actual commission of the crime.

United States v. Rufai, 732 F.3d 1175 (10th Cir. 2013)

While the defendant’s conduct aided the principal’s health care fraud offense, the evidence was insufficient to show that the defendant was aware of the crime and thus he could not be convicted of aiding and abetting the health care fraud crime. Innocent explanations for his conduct were too reasonable to allow the government to convict based on alternative theories that supported the argument that he “must have known” about the principal’s crime.

United States v. Ferguson, 676 F.3d 260 (2d Cir. 2011)

In this securities fraud trial, one theory of culpability was aiding and abetting, i.e., “willfully caused an act to be done which, if directly performed by him or another would be an offense against the United States.” The trial court properly defined “willfully” but failed to explain that the defendant’s willful conduct must cause the act to be done by the other person. This was plain error requiring a reversal of the conviction.

United States v. Turner, 674 F.3d 420 (5th Cir. 2012)

It was error – but harmless – to instruct the jury on an aiding and abetting theory of culpability. The evidence as presented at trial established that the defendant was either the sole participant in the crime, or was an unwitting participant. Either way, he was not an aider and abettor.

United States v. Silwo, 620 F.3d 630 (6th Cir. 2010)

The defendant was instrumental in procuring a van that was later used to transport marijuana and was also observed engaging in activity that appeared to be counter-surveillance. This evidence, alone, did not suffice to support a conviction for conspiracy to possess with intent to distribute marijuana. The defendant was not present when the van was loaded. The defendant was clearly in a scheme, but the evidence did not show that he knew the scheme involved the distribution of marijuana. For the same reason, the defendant could not be convicted of aiding and abetting the possession with intent to distribute the marijuana.

United States v. Perez-Melendez, 599 F.3d 31 (1st Cir. 2010)

While the evidence supported the conclusion that the defendant was aware that he was aiding and abetting the commission of criminal activity, the evidence did not establish beyond a reasonable doubt that he knew the criminal activity he was aiding was a cocaine transaction. The defendants gave inconsistent answers to agents when questioned about their activities, but this did not establish that they were aware of the specific crime that they were aiding.

United States v. Tran, 568 F.3d 1156 (9th Cir. 2009)

The defendant was in a car that exited a warehouse that had been used as a drug distribution site. The defendant was a passenger and the marijuana was in the trunk. There was insufficient evidence establishing that the defendant possessed the marijuana with intent to distribute it, or that he conspired to do so. The Rule 404(b) evidence may have established that he had knowledge of the marijuana (the limited purpose for which the evidence was admitted), but it did not establish that he constructively or actually possessed the marijuana – or aided and abetted the possession of the marijuana – or that he conspired to do so. See also United States v. Sanchez-Mata, 925 F.2d 1166 (9th Cir. 1991) and United States v. Estrada-Macias, 218 F.3d 1064 (9th Cir. 2000).

United States v. McDowell, 498 F.3d 308 (5th Cir. 2007)

The defendant was charged with aiding and abetting a violation of 18 U.S.C. § 1461, mailing obscene material using the U.S. Postal Service. Though the obscene material was, in fact, mailed, there was in sufficient evidence that the defendant was aware that the mails werebeing used or that he aided and abetted the offense with the knowledge that the mails were being used to distribute the obscene videos.

United States v. Gardner, 488 F.3d 700 (6th Cir. 2007)

Though intuition might lead one to conclude that to be prosecuted as an aider and abettor, the defendant is not required to have as much of a culpable state of mind as the principal, in certain situations, just the opposite is true. Consider the offense of possession of a firearm by a convicted felon. If one is charged with being a felon in possession of a firearm, the defendant may not defend on the basis that he did not know that he was a felon. An aider and abettor, however, must be proven to have actually known that the person who he aided in the possession was a felon.

United States v. Penaloza-Duarte, 473 F.3d 575 (5th Cir. 2006)

The defendant was a passenger in a car loaded with methamphetamine. When a trooper in Louisiana stopped the car and discovered the drugs, the defendant claimed to be a confidential informant for a California detective, which was, in fact, verified by the California police. Though there was sufficient evidence of the defendant’s knowing possession of the drugs (he acknowledged knowing the drugs were in the car), the evidence was not sufficient to prove that he associated himself with, and engaged in, some affirmative conduct designed to aid the criminal venture, which is an indispensable component of an aiding and abetting conviction. There was no evidence that he loaded, or assisted in loading the car, or that he did any of the driving, or that he even knew the location to which the load was heading. A conviction must be reversed if the evidence construed in favor of the verdict gives equal or nearly equal circumstantial support to a theory of guilt and a theory of innocence of the crime charged. A subsequent Fifth Circuit decision abrogated the standard of review in this case. United States v. Vargas-Ocampo, 747 F.3d 299 (5th Cir. 2014).

Laird v. Horn, 414 F.3d 419 (3rd Cir. 2005)

Two defendants were tried for first degree murder in a Pennsylvania state court. The accomplice liability jury instruction did not clearly inform the jury that in order to be found guilty of aiding and abetting murder in the first degree (as opposed to being the actual killer), the defendant must have the intent to kill, not just the intent to engage in criminal activity that resulted in an accomplice killing the victim.

Juan H. v. Allen, 408 F.3d 1262 (9th Cir. 2005)

The defendant’s juvenile conviction for aiding and abetting first degree murder was not supported by sufficient evidence. Though the juvenile/defendant was present at the scene, there was insufficient proof that he was aware that the principal would commit the murders of the victims. The defendant may have had a motive, and may have fled after the murders, but neither motive, nor flight is sufficient to prove that the defendant aided and abetted the murders.

United States v. Hornaday, 392 F.3d 1306 (11th Cir. 2004)

The defendant engaged in e-mail communications with an undercover agent and enticed the agent (who was posing as the father of a young girl) to facilitate a rendezvous between thedefendant and the girl. The defendant could be prosecuted for violating 18 U.S.C. § 2422(b), but it was inappropriate (though harmless) to instruct the jury on an aiding and abetting theory, because there was no perpetrator, other than the defendant. While aiding and abetting liability under §2(b) does not require another actual perpetrator, there must at least be someone else who is participating in the offense, even if innocently. Thus, a defendant can aid and abet an innocent pawn in the commission of an offense, but if, as in this case, the only person engaged in any unlawful conduct (knowingly, or not) is the defendant, he is not aiding and abetting anybody else. The court also noted that a defendant can be prosecuted for aiding and abetting a drug offense where the only other participant is an undercover law enforcement officer. Again, however, in that situation the undercover agent is actually engaged in the drug transaction (i.e., moving the drugs), albeit in a non-criminal manner.

United States v. Frampton, 382 F.3d 213 (2d Cir. 2004)

The government failed to prove that the person who committed the offense in this case did so with the requisite intent to convict him under the aiding and abetting statute. The offense was committing violence in support of a racketeering enterprise. 18 U.S.C. § 1959. One defendant hired another defendant to shoot a rival. The shooter was not shown to have known the reason that the shooting was requested. Therefore, he could not have known that his violent act was conducted “in aid of racketeering.” Thus, though he actually committed the offense, he could not be convicted of aiding and abetting the crime of committing an act of violence in aid of racketeering.

United States v. Cartwright, 359 F.3d 281 (3rd Cir. 2004)

The evidence was insufficient to prove that the defendant was a knowing “lookout” for a drug transaction (as opposed to some other offense) and therefore his convictions for being a member of a drug conspiracy and for aiding and abetting the drug offense were reversed on sufficiency grounds. The government failed to prove that the defendant knew specifically that the illegal activity in which he was participating involved drugs rather than some other form of contraband. The court notes several other Third Circuit cases that have overturned drug conspiracy and aiding and abetting convictions because of the absence of evidence that the defendant agreed to participate in the specific crime alleged in the indictment. (NOTE: The Third Circuit later issued an opinion questioning whether this case utilized the proper standard of review, United States v. Caraballo-Rodriguez, 726 F.3d 418 (3rd Cir. 2013).

United States v. Lombardi, 138 F.3d 559 (5th Cir. 1998)

The defendant was a knowing participant in a drug transaction and he knowingly aided and abetted the drug offense, but the evidence did not establish that he knew that a juvenile was involved in the venture. The conviction for knowingly and intentionally employing, hiring, using, persuading, inducing, enticing, or coercing a juvenile to commit a drug offense was not supported by this evidence. To be guilty of aiding and abetting an offense (i.e., using a juvenile), the defendant must not only knowingly participate in the drug offense, but also must knowingly participate in the offense of using a juvenile.

United States v. Wilson, 160 F.3d 732 (D. C. Cir. 1998)

The evidence was insufficient to prove that the defendant aided and abetted, or conspired with others to murder the victim. Though the defendant advised the two principals of the victim’s whereabouts, there was insufficient evidence that he knew that the other two intended to kill the victim. Even though he knew the two were looking for the victim, there was no proof that he knew why.

United States v. Spinney, 65 F.3d 231 (1st Cir. 1995)

Evidence established that the defendant planned a bank robbery and participated in the surveillance before the robbery. The actual robber brandished a weapon when he entered the bank. Given this evidence, a jury could find the defendant guilty of aiding and abetting an armed bank robbery. However, this evidence alone was not sufficient to prove that the defendant aided and abetted a §924(c) offense. To be guilty of aiding and abetting an armed bank robbery, the government must prove that the defendant had at least constructive knowledge that a gun would be used – that is, that it is likely that a gun would be used. For §924(c) aiding and abetting liability, however, the government must establish that the defendant knew “to a practical certainty that the principal would be using a gun.” In this case, the government made a satisfactory showing with regard to the armed robbery count, but not with regard to the §924(c) count.

United States v. Loder, 23 F.3d 586 (1st Cir. 1994)

The evidence failed to support defendant’s conviction for aiding and abetting his employer’s mail fraud scam. The defendant helped his employer “cut up” a vehicle which was fraudulently reported to an insurance company as being stolen. There was no evidence, however, that the defendant had any knowledge of the scheme to defraud the insurance company. Even circumstantial evidence failed to establish that the defendant was aware of the purpose of cutting up the car. Cars can be cut up for numerous purposes other than to accomplish a mail fraud scheme, such as recovering parts from a stolen car or destroying evidence used in an armed robbery or kidnapping.

United States v. Amen, 831 F.2d 373 (2d Cir. 1987)

One cannot be convicted of CCE on the basis of aiding and abetting a person who manages or supervises five other individuals.

United States v. Green, 25 F.3d 206 (3rd Cir. 1994)

The defendant asked his colleague to threaten a federal employee who had been attempting to serve him with a subpoena. The colleague threatened not only the federal employee, but also his family. This was not envisioned or reasonably foreseeable by the defendant, and he could not be convicted of threatening the family member on an aiding and abetting theory.

United States v. Salmon, 944 F.2d 1106 (3rd Cir. 1991)

The defendant clearly was acting as a lookout for a narcotics transaction. While the evidence showed that he knowingly acted as a lookout, however, there was no evidence that he knew the transaction involved the distribution of cocaine. A conviction for aiding and abetting the cocaine transaction, or for conspiring to possess with intent to distribute cocaine, could not be sustained on this evidence alone. (NOTE: The Third Circuit later issued an opinionquestioning whether this case utilized the proper standard of review, United States v. CaraballoRodriguez, 726 F.3d 418 (3rd Cir. 2013).

United States v. Barel, 939 F.2d 26 (3rd Cir. 1991)

Defendant gave a false social security number to a bank in order to procure a loan for himself. This does not constitute the crime of making a false entry into the books or reports of a federally insured bank. That statute, 18 U.S.C. §1005, is not, on its face, limited to bank employees or insiders, but, nevertheless, that was the clear legislative intent, and the statute will be so construed. Furthermore, the defendant could not be convicted of violating the statute as an aider and abettor. The defendant did not have the specific intent to violate §1005, a requirement for aiding and abetting culpability, nor did he intend for the bank employees to violate the law (as in the case of CTR structuring offenses).

United States v. Murray, 988 F.2d 518 (5th Cir. 1993)

The defendant was an employee of a pawnshop that also sold firearms. The owner arranged to sell an illegal weapon to a convicted felon. The defendant participated in the sale and could be convicted of the counts of the indictment charging him with aiding and abetting the sale of the illegal weapon. However, there was insufficient evidence to show that he was aware that the recipient was a convicted felon. The fact that the defendant’s employer was aware is not sufficient to sustain the defendant’s conviction: an aider and abettor must share the criminal intent of the principal. This would be impossible if the aider and abettor is unaware that the purchaser was a convicted felon.

United States v. Martiarena, 955 F.2d 363 (5th Cir. 1992)

The defendant helped her father in his money exchange business. Though she asked her boyfriend to assist her father in violating the CMIR law (international monetary transactions), there was no evidence that she was aware that, once the money was in this country, her father would not comply with the CTR laws. The defendant was not shown to have actively participated in, or been rewarded by, the failure to file the CTR.

United States v. Ledezma, 26 F.3d 636 (6th Cir. 1994)

The defendant entered into a drug conspiracy after the drugs were distributed by the principals. Though he could be found guilty of being in the conspiracy, the evidence did not support his conviction for aiding and abetting the offense.

United States v. Superior Growers Supply Co., 982 F.2d 173 (6th Cir. 1992)

The trial court properly dismissed an indictment which charged the defendant supply company with supplying materials so that others could grow marijuana. The indictment charged the defendant with conspiring to aid and abet the growing of marijuana. The problem here is combining the conspiracy and aiding and abetting offenses. In order to conspire to aid and abet, there must be a crime in progress that the defendant agreed to aid. Here, there was no allegation in the indictment that there was a crime being aided or a crime that the defendant agreed to aid. The court considered United States v. Falcone, 311 U.S. 205 (1940), and Direct Sales Co. v. United States, 319 U.S. 703 (1943), in reaching this result: a supplier of innocent material can only be convicted of conspiring to produce an illegal product if the supplier knows of the end result and intends to further the illegal ends of the manufacturers.

United States v. Doig, 950 F.2d 411 (7th Cir. 1991)

OSHA provides for criminal penalties for corporations and employers who willingly violate provisions of OSHA. The defendant, an employee of the company, was charged as an aider and abettor of the corporate defendant. This was not permissible. The Act only outlaws conduct by employers; an employee may not be convicted of aiding and abetting.

United States v. Pino-Perez, 870 F.2d 1230 (7th Cir. 1989)

A person who is not supervised by a CCE “kingpin,” but who aids and abets the kingpin, is subject to prosecution as an aider and abettor under §2 and thus can be prosecuted under 21 U.S.C. §848. This holding does not apply to a person who is supervised by the kingpin.