Number range CHAPTER

**Chapter 4.00**

**AIDING AND ABETTING**

*Table of Instructions*

**Instruction**

4.01 Aiding and Abetting

4.01A Causing an Act

4.02 Accessory After the Fact

**4.01 AIDING AND ABETTING**

\(1\) For you to find \_\_\_\_\_\_\_ guilty of \_\_\_\_\_\_\_, it is not
necessary for you to find that he personally committed the crime. You
may also find him guilty if he intentionally helped \[or encouraged\]
someone else to commit the crime. A person who does this is called an
aider and abettor.

\(2\) But for you to find \_\_\_\_\_\_\_ guilty of \_\_\_\_\_\_\_ as an
aider and abettor, you must be convinced that the government has proved
each and every one of the following elements beyond a reasonable doubt:

\(A\) First, that the crime of \_\_\_\_\_\_\_ was committed.

\(B\) Second, that the defendant helped to commit the crime \[or
encouraged someone else to commit the crime\].

\(C\) And third, that the defendant intended to help commit \[or
encourage\] the crime.

\(3\) Proof that the defendant may have known about the crime, even if
he was there when it was committed, is not enough for you to find him
guilty. You can consider this in deciding whether the government has
proved that he was an aider and abettor, but without more it is not
enough.

\(4\) What the government must prove is that the defendant did something
to help \[or encourage\] the crime with the intent that the crime be
committed.

\(5\) If you are convinced that the government has proved all of these
elements, say so by returning a guilty verdict on this charge. If you
have a reasonable doubt about any one of these elements, then you cannot
find the defendant guilty of \_\_\_\_\_\_\_ as an aider and abettor.

**Use Note**

The bracketed language in paragraphs (1), (2)(B), (2)(C) and (4) should
be included when there is evidence that the defendant counseled,
commanded, induced or procured the commission of the crime.

**Committee Commentary 4.01**

(current through December 31, 2007)

The Committee made no change in the instruction.

In United States v. Katuramu, 174 Fed. Appx. 272, 2006 WL 773038, 2006
U.S. App. LEXIS 7640 (6th Cir. 2006)(unpublished), a panel approved
Instruction 4.01(3) and (4).

As noted in the 1991 Commentary, the standard for accomplice liability
is set out in 18 U.S.C. § 2:

"(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."

In United States v. Brown, 151 F.3d 476 (6th Cir. 1998), the court
reversed convictions for aiding and abetting a violation of 18 U.S.C. §
1001 (making false statements to a federal agency) for two reasons.
First, the court found the evidence of mens rea insufficient because the
defendant lacked the "specific intent" required for aiding and abetting.
*Id.* at 487. The government's theory was that the defendant aided and
abetted the making of false statements in vouchers for Section 8 housing
eligibility because the vouchers were given to persons other than those
on the waiting list. Because there was no evidence the defendant knew
the function of the waiting list for Section 8 housing, the court held
the mens rea evidence did not meet the standard for aiding and abetting.
In addition, the court held that the evidence of conduct was
insufficient because the defendant failed to engage in the sort of
active role necessary to an aiding and abetting conviction. *Id*. There
was no evidence the defendant helped in the preparation or submission of
the documents to HUD; overall, her participation was too limited to
establish that she did any act to bring about filing false documents
with HUD.

The Sixth Circuit has discussed 18 U.S.C. § 2 in the context of three
offenses which raise unique issues. The first is using or carrying a
firearm under 18 U.S.C. § 924(c). In Wright v. United States, 182 F.3d
458 (6th Cir.1999), the court sustained a conviction under 18 U.S.C. §
2, holding that a defendant could be convicted of using or carrying a
firearm even though he never personally used or carried any weapon. The
court concluded that the holding in Bailey v. United States, 516 U.S.
137 (1995), did not preclude this result. In *Bailey*, the Supreme Court
held that in order to show "use" under § 924(c), the government must
show that the defendant actively employed the firearm during and in
relation to the predicate crime. In *Wright*, the Sixth Circuit stated
that *Bailey* did not affect aiding and abetting liability under §
924(c). Wright v. United States, *supra* at 464. Relying on Rattigan v.
United States, 151 F.3d 551 (6th Cir. 1998), the court held that for
aiding and abetting liability under § 924(c), the government must prove
more than that the defendant knew others were armed; the defendant must
know others were armed and must perform some act with the intent to
assist or influence the commission of the underlying predicate crime.
*Wright,* 182 F.3d at 465. This standard was met in the case by the
defendant's activity of cutting cocaine in the back room of another
defendant's apartment. The court quoted the district court's statement
that " 'this division of labor does not eliminate Mr. Wright's liability
for using a firearm under the principles of aiding and abetting.'" *Id.*
at 466.

The second offense raising unique questions on the application of § 2 is
the Illegal Gambling Business Statute, 18 U.S.C. § 1955. In United
States v. Hill, 55 F.3d 1197, 1199 (6th Cir.1995), the court held that
aiding and abetting liability for § 1955 offenses required particular
knowledge of the predicate offense. The court stated that § 1955
offenses required what it called a "refined theory" of accomplice
liability under § 2, *id.* at 1201, and explained that § 2 is applicable
to § 1955, but only "when the aider and abettor has knowledge of the
general nature and scope of the illegal gambling enterprise and takes
actions that demonstrate an intent to make the illegal gambling
enterprise succeed by assisting the principals in the conduct of the
business." *Id.* at 1199. The point of this standard is to insure that
the defendant knew he was an accomplice to an illegal gambling business
which met the size, scope and duration requirements to be a federal
crime under § 1955. *Id.* at 1202.

Finally, the court has resolved specific accomplice liability questions
for the offense of felon-in-possession-of-a-firearm under 18 U.S.C. §
922(g)(1). In United States v. Gardner, 488 F.3d 700 (6th Cir. 2007),
the court reversed the defendant's conviction for aiding and abetting a
felon in possession on the basis that the evidence was insufficient.
Accomplice liability requires the government to prove that the defendant
intended to aid the commission of the crime. The court held that to meet
this element in the context of a felon-in-possession charge, "the
government must show that the defendant knew or had cause to know that
the principal was a convicted felon." *Id*. at 715, *citing* United
States v. Xavier, 2 F.3d 1281, 1286 (3d Cir. 1993). Because the
government presented no such evidence, the court reversed the
conviction.

*1991 Edition*

18 U.S.C. § 2 provides:

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

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.\"

Aiding and abetting is a method of making a co-defendant equally
culpable when another defendant actually carried out the substantive
offense. A defendant need not be specifically charged with aiding and
abetting to be convicted under 18 U.S.C. s 2, but can be charged as a
principal and convicted as an aider and abettor. Standefer v. United
States, 447 U.S. 10, 100 S.Ct. 1999, 64 L.Ed.2d 689 (1980).

In order to aid and abet, one must do more than merely be present at the
scene of the crime and have knowledge of its commission. The Supreme
Court set out the standard for the offense in Nye & Nissen v. United
States, 336 U.S. 613, 619, 69 S.Ct. 766, 769, 93 L.Ed. 919 (1949), when
it quoted Judge Learned Hand\'s statement from United States v. Peoni,
100 F.2d 401, 402 (2d Cir.1938):

\"In order to aid and abet another to commit a crime it is necessary
that a defendant \'in some sort associate himself with the venture, that
he participate in it as in something that he wishes to bring about, that
he seek by his action to make it succeed\'.\"

Accord United States v. Martin, 920 F.2d 345, 348 (6th Cir.1990); United
States v. Quinn, 901 F.2d 522, 530 n. 6 (6th Cir.1990).

This requires proof of something more than mere association with a
criminal venture. United States v. Morrow, 923 F.2d 427, 436 (6th
Cir.1991). The government must prove \"some active participation or
encouragement, or some affirmative act by (the defendant) designed to
further the (crime).\" Id.

The defendant must act or fail to act with the intent to help the
commission of a crime by another. Simple knowledge that a crime is being
committed, even when coupled with presence at the scene, is usually not
enough to constitute aiding and abetting. United States v. Luxenberg,
374 F.2d 241, 249-50 (6th Cir.1967). Because of its importance in
determining whether the accused is an accomplice, the jury must be
charged fully and accurately as to intent. The failure to instruct on
intent constitutes plain error. United States v. Bryant, 461 F.2d 912
(6th Cir.1972).

Although the defendant must be a participant rather than merely a
knowing spectator before he can be convicted as an aider and abettor, it
is not necessary for the governments to prove that he had an interest or
stake in the transaction. United States v. Winston, 687 F.2d 832, 834
(6th Cir.1982).

See generally Fifth Circuit Instruction 2.06, Seventh Circuit
Instruction 5.08, Eighth Circuit Instruction 5.01, Ninth Circuit
Instruction 5.01 and Eleventh Circuit Special Instruction 6.

**4.01A CAUSING AN ACT**

\(1\) For you to find \_\_\_\_\_\_\_ guilty of \_\_\_\_\_\_\_, it is not
necessary for you to find that he personally committed the act(s)
charged in the indictment. You may also find him guilty if he willfully
caused an act to be done which would be a federal crime if directly
performed by him or another.

\(2\) But for you to find \_\_\_\_\_\_\_ guilty of \_\_\_\_\_\_\_, you
must be convinced that the government has proved each and every one of
the following elements beyond a reasonable doubt:

\(A\) First, that the defendant caused \_\_\_\_\_ to commit the act of
\_\_\_\_\_\_.

\(B\) Second, if the defendant or another person had committed the act
it would have been the crime of \_\_\_\_\_\_\_\_\_\_\_.

\(C\) And third, that the defendant willfully caused the act to be done.

\(3\) Proof that the defendant may have known about the crime, even if
he was there when it was committed, is not enough for you to find him
guilty. You may consider this in deciding whether the government has
proved that he caused the act to be done, but without more it is not
enough.

\(4\) What the government must prove is that the defendant willfully did
something to cause the act(s) to be committed.

\(5\) If you are convinced that the government has proved all of these
elements, say so by returning a guilty verdict on this charge. If you
have a reasonable doubt about any one of these elements, then you cannot
find the defendant guilty of \_\_\_\_\_\_\_.

**Commentary**

(current through December 31, 2007)

This instruction is new. It is based on 18 U.S.C. § 2(b). Section 2
provides:

"(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."

In United States v. Hourani, 1999 WL 16472, 1999 U.S. App. LEXIS 431
(6th Cir. 1999)(unpublished), a panel of the Sixth Circuit stated that §
2(b) was added "to clarify the implicit meaning of § 2(a)" and then
quoted the Historical and Statutory Notes accompanying the statute:

> Section 2(b) is added to permit the deletion from many sections
> throughout the revision of such phrases as "causes or procures." The
> section as revised makes clear the legislative intent to punish as a
> principal not only one who directly commits an offense and one who
> "aids, abets, counsels, commands, induces or procures" another to
> commit an offense, but also anyone who causes the doing of an act
> which if done by him directly would render him guilty of an offense
> against the United States. It removes 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.

*Hourani*, 1999 WL at 3-4, 1999 LEXIS at 9-10.

In United States v. Maselli, 534 F.2d 1197, 1200 (6th Cir. 1976), the
court stated that § 2(b) deals with a class of activities which do not
involve direct violations of the law, but which contribute to the
commission of the offense and are punishable in the same manner as
direct violations. *Maselli* also noted that subsections 2(a) and 2(b)
are not mutually exclusive. "They are \... two statements of indirect
illegal actions which carry the same consequences for the actor as
direct violation of criminal statutes." *Id.* The court noted that it is
proper to instruct on both subsection 2(a) and 2(b) if the evidence
justifies it. *Id.*

"\[I\]t has long been held that an indictment need not specifically
charge 'aiding and abetting' or 'causing' the commission of an offense
against the United States, in order to support a jury verdict based upon
a finding of either." United States v. Lester, 363 F.2d 68, 72 (6th Cir.
1966).

The difference between "inducing" in § 2(a) and "causing" in 2(b) has
been described by the Sixth Circuit as "somewhat unclear." United States
v. Brown, 151 F.3d 476, 486 (6th Cir. 1998). However, the Sixth Circuit
recognized that § 2 has two parts. *See id.* (describing § 2 as having
"two components"). The court also stated that the two subsections are
alternatives, explaining that a defendant can be guilty as an accomplice
"so long as the evidence shows that she aided, abetted, counseled,
induced, or procured the commission of the fraud, or, alternatively,
caused the false statements to be made." *Id., citing* United States v.
Twitty, 107 F.3d 1482, 1491 n.10 (11th Cir. 1997).

The Tenth Circuit has defined the term "causing" in the context of §
2(b) in United States v. Levine, 457 F.2d 1186 (10th Cir. 1972). "Cause
means a principal acting through an agent or one who procures or brings
about the commission of a crime." *Id*. at 1188.

Paragraph (1) of the instruction is based on the language of the statute
and United States v. Keefer, 799 F.2d 1115, 1124 (6th Cir. 1986).
*Keefer* held that under § 2(b) one can be punished as a principal even
though the agent who committed the act lacks criminal intent. *See also*
United States v. Norton, 700 F.2d 1072, 1077 (6th Cir. 1983)(defendants
treated as principals even though they may not have physically done the
criminal act).

Paragraph (2) sets forth the elements that must be proved beyond a
reasonable doubt by the government. The elements are based upon the
language of the statute. *See also* United States v. Murph, 707 F.2d
895, 896 (6th Cir.1983), which held that the further act done by the
agent was foreseen by the defendant and thus the defendant "caused" the
act to be done.

The word "willfully" in paragraph 2(C) is taken from the statute, and
there is no case law in the Sixth Circuit to guide the Committee further
on defining this mens rea in the context of § 2(b). The Committee
recommends that the term "willfully" be defined by reference to the
particular underlying act involved in the case. Cf. Instruction 2.05
Willfully (recommending no general instruction on the meaning of
willfully and suggesting in commentary that the term be defined based on
the particular offense involved). The other circuits' pattern
instructions do not define "willfully" for purposes of § 2(b) either,
although the Eighth Circuit notes in commentary that willfully means
"voluntarily and intentionally." See Manual of Model Criminal Jury
Instructions for the District Courts of the Eighth Circuit, Instruction
No. 5.02 (2003).

Paragraph (3) is based upon United States v. Elkins, 732 F.2d 1280, 1287
(6th Cir. 1984)(knowledge of the criminal conduct is insufficient).

Paragraph (4) of the instruction is based on the instruction quoted with
approval in *Hourani*, 1999 WL at \*\*4, 1999 LEXIS at \*10-\*11. The
panel approved the instruction on accomplice liability under § 2(b)
although the instructions did not specify either §§ 2(a) or 2(b).

The other circuits have not provided an independent jury instruction on
the causing prong of § 2(b). The Federal Jury Practice and Instructions,
§ 18.01, Fifth Edition (2000), provides in commentary that if the
government is proceeding on the theory that the defendant "willfully
caused" another to commit an offense under § 2(b), no specific
additional instruction is necessary. It suggests that the instruction
should be changed to include the language of "cause." The First Circuit
Committee is divided on the meaning, in terms of jury instructions, of
the difference between the two subsections of 18 U.S.C. § 2. See Pattern
Jury Instructions: First Circuit Cases, Instruction No. 4.02 Comment ¶
(2) (1998 ed.). The Eighth Circuit, in the commentary to its pattern
jury instructions, indicates that the elements instruction should be
modified to indicate that the "defendant voluntarily and intentionally
caused any acts he did not personally do." See Manual of Model Criminal
Jury Instructions for the District Courts of the Eighth Circuit,
Instruction No. 5.02 (2003).

**4.02 ACCESSORY AFTER THE FACT**

\(1\) \_\_\_\_\_\_\_ is not charged with actually committing the crime
of \_\_\_\_\_\_\_. Instead, he is charged with helping someone else try
to avoid being arrested, prosecuted or punished for that crime. A person
who does this is called an accessory after the fact.

\(2\) For you to find \_\_\_\_\_\_\_ guilty of being an accessory after
the fact, the government must prove each and every one of the following
elements beyond a reasonable doubt:

\(A\) First, that the defendant knew someone else had already committed
the crime of \_\_\_\_\_\_\_.

\(B\) Second, that the defendant then helped that person try to avoid
being arrested, prosecuted or punished.

\(C\) And third, that the defendant did so with the intent to help that
person avoid being arrested, prosecuted or punished.

\(3\) If you are convinced that the government has proved all of these
elements, say so by returning a guilty verdict on this charge. If you
have a reasonable doubt about any one of these elements, then you must
find the defendant not guilty of this charge.

**Committee Commentary 4.02**

(current through December 31, 2007)

The Committee made no change in the instruction. The Committee also
decided that no change in or addition to the 1991 Committee Commentary
is warranted.

*1991 Edition*

18 U.S.C. § 3 provides:

\"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 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 ten years.\"

A defendant is guilty under Section 3 where he knowingly assists an
offender in order to hinder the offender\'s apprehension, trial or
punishment. He is distinguished from an aider and abettor by not being
entangled in the commission of the crime itself. For example, the driver
of a getaway car in a bank robbery may be treated as a principal, while
a defendant who learns about a crime afterwards and then supplies a
place of refuge would be an accessory after the fact. It is important
that the felony not be in progress when assistance is rendered in order
for the person to be treated as an accessory after the fact, rather than
as a principal.

\"The gist of being an accessory after the fact lies essentially in
obstructing justice by rendering assistance to hinder or prevent the
arrest of the offender after he has committed the crime \... The very
definition of the crime also requires that the felony not be in progress
when the assistance is rendered because then he who renders assistance
would aid in the commission of the offense and be guilty as a
principal.\" United States v. Barlow, 470 F.2d 1245, 1252-1253
(D.C.Cir.1972).

The line between an aider and abettor and an accessory after the fact is
sometimes difficult to draw, particularly when dealing with the escape
immediately following the crime. The defendant in United States v.
Martin, 749 F.2d 1514, 1518 (11th Cir.1985), was convicted of aiding and
abetting in a bank robbery under an instruction in which the jury was
told that the robbery was not complete as long as the money was being
\"asported or transported.\" The Eleventh Circuit held that the
instructions extended the crime too far since \"the money could be
transported long after the possibility of hot pursuit had ended.\"

See generally Fifth Circuit Instruction 2.07, Seventh Circuit
Instruction 5.09 and Ninth Circuit Instruction 5.02.