4.18.02 Aid and Abet, 18 U.S.C. § 2 See Statute

To “aid and abet” means intentionally to help someone else commit a crime. To establish aiding and abetting, the government must prove beyond a reasonable doubt:

First, that someone else committed the charged crime; and

Second, that [defendant] consciously shared the other person’s knowledge of the underlying criminal act, intended to help [him/her], and [willfully] took part in the endeavor, seeking to make it succeed.

[Defendant] need not perform the underlying criminal act, be present when it is performed, or be aware of the details of its execution to be guilty of aiding and abetting. But a general suspicion that an unlawful act may occur or that something criminal is happening is not enough. Mere presence at the scene of a crime and knowledge that a crime is being committed are also not sufficient to establish aiding and abetting.

[An act is done “willfully” if done voluntarily and intentionally with the intent that something the law forbids be done—that is to say with bad purpose, either to disobey or disregard the law.]

Comment(s)

(1) This instruction is based on United States v. Spinney, 65 F.3d 231, 234-35 (1st Cir. 1995), and United States v. Loder, 23 F.3d 586, 590-91 (1st Cir. 1994).

(2) “[A] fair reading of Spinney supports the proposition that the level of knowledge required to support an aiding and abetting conviction is related to the specificity of the principal offense, as to both mens rea and actus reus.” United States v. Rosario-Diaz, 202 F.3d 54, 63 (1st Cir. 2000). For aiding and abetting the use of a firearm in a crime of violence, Instruction 4.18.924(c), the level is knowledge “to a practical certainty.” Id. For aiding and abetting an armed bank robbery, it is “notice of the likelihood” that the principal would use a dangerous weapon, id., defined as a “reasonable likelihood,” not a “high likelihood,” “low likelihood,” or “semi likelihood.” Id. at 63 n.1. For carjacking, the First Circuit has not decided which standard applies. United States v. Otero-Mendez, 273 F.3d 46, 51-52 (1st Cir. 2001).

(3) The Committee was evenly divided on whether to include the term “willfully” and the bracketed definition. Title 18 U.S.C. § 2 has two subsections, only the first of which, subsection (a), deals specifically with aiding and abetting. Subsection (a) does not require that an aider and abettor act “willfully.” Subsection (b), dealing with one who causes an act to be done which, if performed directly by the accused or another, would be a crime, does require proof of willfulness. Subsection (b), however, did not appear until 1948 and willfulness was not added as a requirement in subsection (b) until 1951. For a good discussion of the legislative history of subsection (b) see United States v. Ruffin, 613 F.2d 408 (2d Cir. 1979), and of subsection (a) see Standefer v. United States, 447 U.S. 10 (1980). First Circuit caselaw has not consistently recognized a difference between the two subsections, treating them both generically as “aid and abet,” see, e.g., United States v. Footman, 215 F.3d 145, 154 (1st Cir. 2000) (“When aiding and abetting is involved, then, the ‘counsels, commands, induces, or procures’ [§ 2(a)] and ‘cause’ [§ 2(b)] language from § 2 is properly part of the jury’s instruction.”), and at least some First Circuit cases use the term “willfully” when dealing specifically with subsection (a). See, e.g., United States v. O’Campo, 973 F.2d 1015, 1020 (1st Cir. 1992). Complicating matters further, “willfully” is a term subject to a variety of definitions, see Ratzlaf v. United States, 510 U.S. 135, 141 (1994), and it is unclear whether the First Circuit meant to require specific intent (to violate the law) in subsection (a) cases by using the term. Many statutes penalize conduct simply because the defendant undertakes it, regardless of whether the defendant knows that the conduct amounts to a crime (e.g., felon in possession of a firearm, 18 U.S.C. § 922(g)); it is unclear why an aider and abettor should be held to a more demanding intent. In fact, there is language in First Circuit cases supporting the contrary conclusion. In Loder, the court said that “the defendant [must] consciously share the principal’s knowledge of the underlying criminal act,” 23 F.3d at 591, and quoted approvingly the statement in United States v. Valencia, 907 F.2d 671 (7th Cir. 1990): “The state of mind required for conviction as an aider and abettor is the same state of mind as required for the principal offense.” Id. at 680. Finally, the First Circuit at times has recognized that subsection (b) is different from subsection (a), see United States v. Strauss, 443 F.2d 986, 988 (1st Cir. 1971), and has recently held that “[a] defendant may be convicted under this section [b] even though the individual who did in fact commit the substantive act lacked the necessary criminal intent.” United States v. Dodd, 43 F.3d 759, 762 (1st Cir. 1995); accord United States v. Andrade, 135 F.3d 104, 110 (1st Cir. 1998) (“Unlike aiding and abetting liability . . . there is no requirement [under section 2(b)] that the intermediary be shown to be criminally liable.”). If the two subsections are treated as interchangeable, Dodd and Andrade would be inconsistent with Loder’s holding that culpability under (a) requires a shared knowledge of the underlying criminal act between or among the actors. But if (b) is treated separately from (a) as Dodd and Andrade suggest, the willfulness element of (b) becomes a sensible additional requirement of specific intent for culpability of a defendant charged with causing an innocent person to act. Following the logic of Loder, where the underlying criminal act is not a specific intent crime, it may be defensible to leave out “willfully” and its definition in a subsection (a) prosecution.

United States v. Leppo, 177 F.3d 93, 95-97 (1st Cir. 1999), discusses, but does not resolve, disagreement over what “willfulness” requires in a § 2(b) case.