#11428 - Aiding And Abetting - Criminal

AIDING & ABETTING

1. CA MAKES ACCOMPLICE A PRINCIPAL IN THE OFFENSE

2. CA extends accomplice liability to 1) any reasonably foreseeable offense 2) carried out by the person the accomplice aids and abets – People v. Luparello, People v. Brigham

3. Minority: punish accessories-after-the fact as A&A

4. Policy for same charge

   1. Sometimes A&A is more dangerous than the principle (i.e. has culpable intent)

   2. We can deal with worry that A&A are less culpable at the sentencing phase

      1. Concern: our world of sentencing guidelines: judge discretion is decreased b/c of mandatory minimums

   3. Don’t want to let rich guy that pays someone to shoot his wife to get away.

      1. Depraved heart + luxury of having someone else do dirty work = less culpable? NO.

   4. Proof problems

      1. Easier for prosecution to prove someone guilty when group pulled trigger, but not sure who killed person. Good to have A&A as tool when we think all are morally culpable to be punished equally.

5. Complicity: theory of liability

   1. Either charged under the theory that you are principal

   2. Or under theory you are A&A

   3. Either way, you are charged with rape.

6. Common law: purposeful attitude toward the crime, not just the intention to commit the act that ended up happening.

   1. Encouragment = sufficient MR + some minimal aid

      1. Either communicated intent to aid (emboldening) (AR)

      2. Or actual aid (even if uncommunicated) (AR)

         1. No need for but-for causation

         2. Mere presence is not enough

   2. MR:

      1. Purposeful or knowing for conduct

         1. Or N&P

      2. Same as statute for result

      3. Courts split on Attendant Circumstances

7. MPC (2.06)

   1. MR

      1. Purposeful for conduct

      2. Same as statute for result

      3. Depends on policy underlying crime for Attendant Circumstances

   2. AR

      1. Must aid or attempt to aid

      2. Can still be guilty of A&A or attempt A&A even if P doesn’t complete or attempt offense

      3. Can also be based on omissions

8. Issue of causation

   1. Why no but-for requirement?

      1. Crashes into our notions of free will: impossible for govt to show causation when the link in causation is your persuasive effect on other human beings

9. A&A attempt – MPC 2.06(3)

10. Cal Penal Code §§ 30-32

    1. § 30. The parties to crimes are classified as: 1. Principals; and, 2. Accessories.

    2. § 31. All persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission, and all persons counseling, advising, or encouraging children under the age of fourteen years, or persons who are mentally incapacitated, to commit any crime, or who, by fraud, contrivance, or force, occasion the drunkenness of another for the purpose of causing him to commit any crime, or who, by threats, menaces, command, or coercion, compel another to commit any crime, are principals in any crime so committed

11. 18 U.S.C.A. § 2

    1. (a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.
       (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.

    2. Hicks v. United States (1893) – pg 593: Federal because it takes place on Indian Reservation. Rowe kills Colvard, Hicks is present. Says “take your hat off and die like a man.” Hicks says this was said out of desperation, thinking both he and Colvard were going to die. He intended to say the words, but did not intend the words to mean kill him.

       1. Held: He would be punished as Principle if he was found to have A&A. The original jury instruction that focused only on his intent to say the words was incorrect: Jury should have been instructed that in intend his words to further the killing.

12. MPC 2.06: Liability for conduct of another; complicity

(3) A person is an accomplice of another person in the commission of an offense if:

(a) with the purpose of promoting or facilitating the commission of the

offense, he

(i) solicits such other person to commit it, or

(ii) aids or agrees or attempts to aid such other person in planning or

committing it, or

(iii) having a legal duty to prevent the commission of the offense, fails to

make proper effort so to do; or

(b) his conduct is expressly declared by law to establish his complicity.

(4) When causing a particular result is an element of an offense, an accomplice in the conduct causing such result is an accomplice in the commission of that offense if he acts with the kind of culpability, if any, with respect to that result that is sufficient for the commission of the offense.

(6) Unless otherwise provided by the Code or by the law defining the offense, a person is not an accomplice in an offense committed by another person if:

…

(c) he terminates his complicity prior to the commission of the offense and

(i) wholly deprives it of effectiveness in the commission of the offense; or

(ii) gives timely warning to the law enforcement authorities or otherwise makes proper effort to prevent the commission of the offense.

(7) An accomplice may be convicted on proof of the commission of the offense and of his complicity therein, though the person claimed to have committed the offense has not been prosecuted or convicted or has been convicted of a different offense or degree of offense or has an immunity to prosecution or conviction or has been acquitted.

13. MPC § 5.01 – Conduct designed to aid another in commission of a crime (attempt)

    1. (1) (b) when causing a particular result is an element of the crime, does or omits to do anything with the purpose of causing or with the belief that it will cause such result without further conduct on his part; or

    2. (3) A person who engages in conduct designed to aid another to commit a crime which would establish his complicity under § 2.06 if the crime were committed by such other person, is guilty of an attempt to commit the crime, although the crime is not committed or attempted by such other person.

14. NY Penal Code § 115

    1. A person is guilty of criminal facilitation in the second degree when, believing it probable that he is rendering aid to a person who intends to commit a crime, he engages in conduct which provides such person with means or opportunity for the commission thereof which in fact aids such person to commit a felony. Criminal facilitation in the second degree is a class A misdemeanor.

15. Natural and Probable Doctrine v. “Results” Rule

    1. N&P is about liability for totally different crime

    2. MPC/McVay rule is about liability for result when you act with same MR as principal toward that result.

       1. Note: he doesn’t always have to intend the result, like you do in attempt

       2. i.e. based on negligence, can be guilty of negligent homicide

16. CASES

17. State v. McVay (1926) – pg 610: Captain and engineer of steamer cause explosion, due to negligence, and kill 3.

    1. Held: Kelly is charged as an accomplice to involuntary manslaughter because it was possible, when he hired them, that he could have directed and counseled the grossly negligent act which resulted in the death, even if he acted with no conscious volition to take life.

       1. Up to the jury whether or not this is the case

18. Gladstone: undercover cop tries to buy marijuana and calls Gladstone, who doesn’t have any but refers him to Kent – gives address and map. No communication between Gladstone and Kent.

    1. AR: no doubt that he committed words/actions that, as a factual matter, ended up aiding the sale.

    2. MR: There must be a nexus.

       1. You have to have a stake/interest in the result.

          1. Must have genuine purpose, not just knowledge

       2. Do not need to be physically present, or explicitly agree beforehand

          1. Shows a difference between conspiracy, where agreement is the sin quo non

    3. Held: There was no purpose (he derives nothing from Kent selling), and therefore can’t be charged with A&A

       1. Although a lack of communication underscored the lack of evidence showing that he wanted the sale to go through, communication is not necessary.

       2. Stalking a bank robber example – agree with yourself that you’ll kill anyone in his way and then you do so. Anonomous benefactor – still A&A.

    4. Policy behind requiring more than just knowing facilitation

       1. Don’t want to over deter normal people in the course of business

       2. We don’t require a duty to affirmatively deny a customer a sale

       3. But even though you’re not selling the gun because you want your customer’s mom to die, but you still know she will die.

          1. In 7th circuit, knowledge is enough for A&A

             1. Problem with requiring purpose = really hard to prove

19. People v. Luparello (1987) – pg 604 – Luparello wants to locate former lover, thinking he could discover her whereabouts from Martin, the friend of her current husband. Enlists help of several friends, telling them he wants information at any cost. Visit Martin and fail to get info. Wtihout Luparello, and without a plan to kill, they return, armed, lure Martin outside, and kill him.

    1. Held: MR: not possible to have identical MR, because only the perpetrator can technically manifest the intent. But accomplice liability is premised on ‘equivalent’ MR, which is found in intentionally encouraging or assisting or influencing the nefarious act. Natural and probable consequences test.

       1. Policy:

          1. A&A should be responsible for the criminal harm they have naturally, probably, and foreseeably put in motion

    2. Concurrence: foreseeable consequence doctrine is bad because it...