The Government’s Misuse of the Aider and Abettor And Co-Conspirator Liability to Prosecute Innocent People: Not Everyone Who knows a Criminal is a Criminal

Aiding and abetting and conspiracy charges are some of the government’s favorite charges to pursue. They, on one hand, expand the scope of criminal liability while, on the other, at the same time allowing the government to offer what appears to be a “benefit” in plea negotiations. They also allow the government to obtain a conviction against a defendant even if the defendant did not commit the predicate crime himself or herself. In addition, these charges aid the government in its pursuit of the main defendant by allowing the government to pressure people associated with the main defendant to cooperate with the government.

Conspiracy charges have the added benefit, to the government, of creating the presumption that a conspiracy exists when one defendant pleads guilty to “conspiracy. In addition, a conspiracy charge allows the government to use co-conspirator’s statements under 801(d)(2)(E) against other alleged co-conspirators.

The problem is that these charges can and do ensnare innocent people. It is therefore imperative that criminal defense counsel understand these charges and are prepared to mount a defense. This involves pushing back on government assumption and preparing to try cases even when co-defendants have decided to plead guilty and cooperate against the defense counsel’s client.

Aiding and Abetting.

In order to understand who a co-conspirator is, it is best to start with the basic principles of criminal liability in the U.S. Criminal Code. 18 U.S.C. 2 is the statute that established who is liable for a crime as a principle. It states “[w]however commits an offence against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal”. We frequently see individuals referred to as “aiders and abettors”, but what must the government prove to convict one of aiding and abetting?

Aiding and abetting has four elements:

1. The accused had the specific intent to facilitate the commission of a crime by the principal;
2. The accused had the requisite intent required of the substantive offense;
3. The accused assisted in or participated in the commission of the substantive offense; and,
4. The principal committed the underlying offense.

United States v. DePace, 120 F.3d 233 (11th Cir. 1997); United States v. Chavez, 119 F.3d 342 (5th Cir. 1997); United States v. Powell, 113 F.3d 464 (3rd Cir. 1997).

Note that there are actually two distinct intents to aiding and abetting. The government must prove not only that an accused had the specific intent to facilitate a crime; it must also prove that the accused had the same intent as the principal to commit the underlying crime.

Now let’s examine these elements in light of what I will call the “mere girlfriend” scenario, although it applies to family members and friends as well. We often see people associated with alleged narcotics traffickers indicted because they seem to be in close proximity to the alleged narcotics trafficker. They may live with the narcotics trafficker. They may know the drug trafficker sells drugs. They may even have seen the drugs dealer sell drugs. The drug dealer may even have bought the girlfriend jewelry or a car or something else of value.

Does that make the girlfriend an aider and abettor?

Before answering the question, let’s look at a white-collar scenario. In this scenario, let’s assume a fraudster is using the wires to perpetuate a Ponzi scheme. His girlfriend may have questions about how her boyfriend is earning his money. She may be aware of the presentations he has given to potential victims and, in fact, may have actually seen him give the presentations. When checks arrive in the mail, she may even have taken those checks and given them to her boyfriend.

Is she an aider and abettor?

In both scenarios, the answer is “NO”. In the first case, the government cannot show that the girlfriend had an intent to distribute or that the girlfriend had the specific intent to facilitate the crime of narcotics distribution. The same is true of the second scenario. Knowledge of a fraudulent scheme is insufficient to establish aider and abettor liability. The government needs to establish much more.

The cases should be extremely difficult for the government to prove. Unfortunately, it does not appear to me that the government is put to its burden of proving these offenses beyond a reasonable doubt with competent evidence. More often than not, these individuals will plead guilty in exchange for the government’s promise to file a motion pursuant to section 5K1.1 of the United States Sentencing Guidelines requesting the court depart from the guidelines because of the defendant’s substantial assistance. This is not an unreasonable choice, especially when the guilty plea is recommended by defense counsel. There is a real fear that if they go to trial and lose, a realistic possibility in view of the government’s vaunted 97% conviction rate.

If we go back to the elements of the offense and re-examine the elements of aiding and abetting, defending the case should be self-evident. The hypothetical defendant simply did not commit a crime. Not only did the hypothetical defendant not commit a crime, but there is no evidence that the hypothetical defendant shared the defendant’s intent to commit the underlying crime or had the specific intent to see the underlying crime committed.

It is worth noting that there is no obligation in the United States for a person with knowledge of a crime to report that crime. There is an offense in the United States Code entitled “misprison”; however, 18 U.S.C. 4, requires not only failing to report the crime but concealing it as well. We do not yet live in a totalitarian police state where reporting criminal activity is required. In fact, within the Trump Wing of the Republican Party, those who report crimes and cooperate with the government are referred to as “rats”. Regardless of the morality, or lack thereof, no one can be punished for failing to become a “rat”.

Former President Trump used the term “rat” on a number of occasions. In one memorable tweet, about the White House Counsel, he tweeted: “The failing @nytimes wrote a Fake piece today implying that because White House Councel Don McGahn was giving hours of testimony to the Special Councel, he must be a John Dean type ‘RAT.’ But I allowed him and all others to testify – I didn’t have to…”

While there is no duty to report a crime, when one is subpoenaed to testify under oath, testifying falsely is a crime. Likewise, lying to investigators is a crime. See 18 U.S.C. 1001.

Conspiracy.

There are a plethora of conspiracy statutes in the U.S. Criminal Code, but for purposes of this article, I will focus on two, 18 U.S.C. 371 (conspiracy to defraud the United States) and 21 U.S.C. 846 (conspiracy to distribute controlled substances). A conspiracy occurs when two or more people enter into an agreement to commit an illegal act or to commit a legal act by illegal means. It “. . .is a distinct evil, dangerous to the public, and so punishable in itself”. It is also a distinct crime with distinct elements.

Conspiracy has three elements:

1. That the accused and at least one other person entered into an agreement to commit a crime.
2. That the accused voluntarily joined the agreement;
3. That there was a joint intent to commit the underlying crime; and,
4. That one of the alleged co-conspirators performed an overt act in furtherance of the conspiracy.

These elements are in addition to the underlying crime that is the object of the conspiracy. If the underlying offense is wire fraud, then the government must prove that the alleged co-conspirators intended to violate the wire fraud statute, the government would have to prove:

1. That there was a scheme or artifice to defraud; and,
2. That the accused had an intent to defraud. (18 U.S.C. 1343)

As with aiding and abetting, the government’s burden to prove a conspiracy charge should be quite high. It is the agreement that constitutes the evil, but the agreement is only evil because the underlying crime is evil. It is therefore vital for defense counsel to focus upon the agreement itself. What is the agreement? What are its terms? Did the accused and the other alleged co-conspirator(s) all agree to the same terms of the agreement?

It is possible that an accused may have some idea as to what a criminal is doing and may even provide some assistance to the criminal without entering into an agreement to commit a crime. The government should be put to the test of proving the existence of a specific agreement—this can often be done through cross examination of the government’s key witnesses. If there is a divergence in what witnesses believed the conspiracy was, then there is no conspiracy.

In Dunn v. United States, 442 U.S. 100 (1979) the Supreme Court held that a variance between the allegations of an indictment and the proof at trial constituted a fatal variance. The same is true when there is a variance between a conspiracy alleged in an indictment and a conspiracy proven at trial. When the alleged co-conspirators are not able to agree on the material terms of an agreement, there is no conspiracy.

The alleged co-conspirators must also share an intent to commit the underlying crime. Thus, if one gives aid to a criminal without understanding what his or her aid will be used for, then that individual does not have an intent to commit the underlying crime.

Defending a conspiracy charge, like defending any other charge, requires defense counsel to be bold and aggressive. They must be prepared to confront the government’s use of “circumstantial evidence”, which usually sounds something like “the co-defendants knew each other and talked about something, therefore they must be co-conspirators”. Circumstantial evidence is a type of evidence, however, to be accepted or rejected by a jury. It does not lower the government’s evidentiary burden and can be confronted head-on. If the evidence is just as consistent with innocence as it is with guilt, which is frequently the case in conspiracy cases, then it has no probative value and should be rejected.

Conclusion.

When a defendant or potential defendant is confronted with potential liability for “aiding and abetting” or conspiracy, there are alternatives to rushing to the U.S. Attorney’s office and attempting to cooperate. Indeed, defense counsel is not even in a position to assess whether cooperation is beneficial until he or she understands the case. The government will bring immense pressure not only on the client but all other alleged co-defendants to “cooperate” and may even offer a plea as an aider and abettor or a co-conspirator to secure cooperation. Some alleged co-conspirators (co-defendants) may even “cooperate” to the point of telling the government what it wants to hear rather than the truth.

There is an alternative, and it begins with understanding aider and abettor liability and conspiracy liability. The government has a high burden to prove these types of liability that are too often just words thrown around without a meaning as to what they understand. Investigate—Prepare; these cases can be and should be defended.

If you, a family member or a friend have questions about these complex legal concepts, please contact us.