said judge learned had learned hand i hit the nail on the head when he described it as accomplice liability that would require proof that the individual participate in the crime as in something that he wishes to bring about that he seek by his action to make that crime succeed on whatever the state of complicity liability was in washington before one thousand nine hundred seventy six the statute in act by the legislature significantly broadened that liability in particular and in contrast to the model penal code in contrast to the federal standard which is articulated in judge hands quote from  honor thank you we do because and i don't think the government fact has conceded this through its silence washington mall has implicitly has implied accomplice liability in every criminal statute  he wasn't convicted and he was convicted as a principle and not on the accomplice theory of liability so how does that become pertinent into our now with its pardon because he would never be convicted under the accompli statute i believe it's that he didn't have to be in this case if he could be convicted under the statute is the principle why do we even care about what would happen if he were  the state supreme court's understanding of washington law and i'm citing to caruthers it need not even be charged as accomplice liability an individual can be charged without even naming another individual as a principle and he can still be  proceedings there is a jury instruction and argument from the prosecution witness testimony or something that gives an indication that accomplice labial of the is the theory of the case do we have anything similar to that here well no here we do have a guilty plea however the accomplice liability would apply whether the jury was instructed on accomplice liability or not certainly there is a model instruction that is provided to juries in these  even if that individual had written out a pledge to commit a larceny it still would not be an aggravated felony under because we see we've we've see it is not categorically a crime of violence but we have not said that into in terms of the have easily and i think mr penny i was case which will discuss next and might help me give a little bit of light to the sput before you go on is your so is your argument that he pled guilty to let's just call it the for one section but because of the way that statute is applied in washington then it just automatically he's also guilty of the accomplice liability is  your argument that that is my argument but based on his plea you would not be able to tell whether he was guilty as an accomplice or a principal because washington incorporates the accomplice liability so it would be like we as if we're doing a tailor analysis but we would start with the four one but also it has to by so many incorporate the liability section yeah and i think perhaps supreme court's decision that said that accomplice liability is inherent and you know all crimes so we have the same thing in the federal law but we don't necessarily conduct the taylor analysis on section two which is the aiding and abetting counterpart in federal law when there is an underlying crime that we are looking at so why should this be any different just because it's washington state that the court concluded that a generic definition of drug are sorry of an aggravated felony would include accomplice liability even though the statute of conviction was ten and fifty one do you have a case that has adopted your theory of analysis that when a court is determining whether a crime is categorically an aggravated felony it's appropriate to look not only at the statute of conviction but the accomplice statute as well what's the what's the strongest case authority you have to support your argument well i think it would be  don't want to run out of time without making sure that the court isn't led astray by the government's claim that accomplice liability in washington if we get past this hurdle is not substantially  broader than the generic definition is understood when you're solver as despite the clear language of the statute the plain language of the jury instruction saying it's knowledge instead of intent the government site several cases that would gladstone another lower court case predated by some eighteen years but the court has to be doubly cautious when looking at cases cited by the government and this is page twenty four of their brief suggesting that somehow washington accomplished liability still includes what they say quote is an intent element where the individual shared in the criminal intent of the principal thus demonstrating a community of unlawful purpose that was a lower court decision u supreme court case state versus boast that at least one intermediate california sorry washington court has it in a fide is addressing the priest statute concept none of those cases can withstand the good morning may it please the court the concepts and bedded in the washington accomplice liability statute do not extend significantly beyond what aiding and abetting is required what the concept of aiding and abetting that the embedded in all of the other states substance of offense of delivery of her heroin and i gather your opponent said that you can see that the government can see this somehow that we should be looking at accomplice liability what's the source of that walk why do we have to do that i agree i have not been able to find any authority that counters mr ellis citations from washington state court that says there is no jury unanimity required in determining whether an individual is liable  principal or infant aider and abettor that's washington state law and then i do but agree but again my my point is why are we talking about a year on the better because he was convicted under the principle offenses section for zero that's correct your honor and i am not aware of a case i think to draw and i had asked if there was a case that proceeded to determine whether aiding and abetting was overbroad when the statute of conviction w five one so in and then on the other this case they also go through in their analysis and talk about how because the statute essentially the the burglary statute you have to it is just the state automatically right applies the accomplice liability even though they don't even have to charge it or they go through essentially the jury can find the abettors when determining principle liability and that if the united states concedes that it appears to be what washington has done with its accomplice liability statute they don't charge it in washington the accomplice liability and they just charge the principal as there are cases where the prosecutors did specifically charge the aiding and abetting or the accomplice liability statute so when i was looking through cases there were certainly washington state cases that identified an information  charging document where the complex liability statute was identified but on the other hand there were also cases where the information or charging instrument didn't alleged accomplice liability statute but the court went on to conduct in a comple evaluation but we don't have any of that here we don't have any indication in the record that anyone considered this case to the other dam a principal committing that's correct your honor if you look at the  plea agreement makes clear that i did deliver heroin it was a personal principle liability basis for factual basis for the plea but if we do gauging the analysis that the supreme court did and when it's alvarez i think it's clear that the washington accomplished liability statute also just doesn't extend significantly beyond what aiding and abetting was is in all of the fifty one jurisdictions that were examined in that case mr ellis says on the language knowledge  somehow washington aiding and abetting statute has a diminished mens rea as compared to all of the other jurisdictions that's simply not the case here it's not knowledge and knowing act that is required for accomplice liability it's knowledge that your act will promote or facilitate an offense mr ellis has suggested that state versus roberts is the principle case that displays are identifies what accomplice liability is in washington and in that case the washington supreme court actually said that the washington statute is in all respects identical to the model penal code so in the opinion that the supreme court said the comment to model code two point zero six three a which is identical to  paygo we said the same thing song curious about why you think it's necessary to go farther than to just say that we've we've consistently ruled that case but th honor we believe that the case is that that this court has issued its controlling in this case to the extent that mr ellis raises an argument about complex liability that was not addressed in the three decisions that the ninth circuit has issued on th statute we certainly think that those arguments don't have any weight but but there are controlling decisions political what's your best what's the best case for the argument that we have to look at the accompli decision is one where the supreme court didn't look at california aiding and abetting liability to determine whether it was overbroad compared to the other jurisdiction issue that issue was raised in that case yes your answer whether or not the  e in that particular case incorporated the aiding and abetting so that issue of that was joined there based on the facts of the case yet and that this court ninth circuit looked at that question again whether california is aiding and abetting always overbroad because the defendant alleged there that even though he was convicted under a california health and safety code drug trafficking statute that california aiding and abetting overbroad the section five won but i think under both sort of if you look at the controlling ninth circuit case law we agreed that washington's drug trafficking statutes are our categorically illicit trafficking offenses within the meaning of the provision what constituted a self defense within the meaning of eleven zero one a forty three g so whether it was an aggravated felony is a theft offense here the question is whether it's an aggravated felony it's an illicit trafficking offense the ninth circuit has answered the question y a crime whether ten eight five one that question had been examined before i said it was over brawn it was because there was a specific incorporation of an accessory after the the supreme court didn't join us alvarez washington state's accomplice liability statute is just not overbroad to the extent that the natural and probable consequences doctrine was found adequate under california law certainly that requires no intent here under washington law there is a knowledge that the actual promote and facilitate an offense which is for all and under washington state law for all intents and purposes the same as what all of the other  jury unanimity required in determining whether an individual is convicted as a principle here that is your answer yes or no to my question so i believe looking at washington state's accomplice liability statute is appropriate even if even if the record reflects that the defendant was convicted as a principal if you still think that we need to conduct the analysis of the aiding and abetting or accomplice liability  myself that we do have to look at washington accomplice liability is that it is not the same and it is significantly broader than the generic definition the court said oh look to roberts where they said that it is the same as the model had discussion about this it was suggested that they should use knowledge and that was rejected because knowledge was too broad i'm so we do that don't we look at how the washington courts have in fact interpreted th and the provisions of the statute yes your honor and that's why i asked the court to be cautious in looking at the citations from the government and recognize that the washing supreme court even in cases cited by the government  sensually the position that i have which is that intent is not required it's only knowledge and that's not just roberts the government states state versus gotten which says criminal sorry state versus thomas to convict an accomplice of the state need not show that the accomplice had the intent that the victim would be killed the prosecution need only prove the defendant knew his actions from facilitate the crime let's just get it down to some basic practical i'm a taxi driver and someone asked me to take them to the red light district has a friend a prostitute i have engaged in an act knowing that that person is going to engage in a criminal act that is assisted him that is aided him in washington i can be guilty of aiding and abetting that prostitution crime in every other jurisdiction except for five others i cannot so stepping back just briefly is the difference between specific intent and general intent  umbach recognize the significant practical distinction then when you have specific intent defenses like diminished capacity subjective mistake of fact come into play you don't have that in washington you have an every other jurisdiction except for five others in the country a criminal practitioner we also know that when we talk about specific intent we're talking about the government's requirement to prove consciousness a conscious desire to commit a crime or to have a crime committed if you're an accomplice you don't have that when it's just knowledge when it's general intent this is a significant distinction it's a significantly broader issue than was presented into a new salver as the natural probable consequences i disagree with my opponent that it does not involve intent if we look at the case gonzales ultimate rano yes or no that it appears that in that decision he took the approach that the aiding and abetting and the principle liability or two alternatives elements  eight point zero two well it's still there for you to take different paths depending on the the charging document so why wouldn't that lead us to that to sixty nine point five  four one since the evidence in the record appears to reflect that the defendant was completed as a principal what's your response to that the response is that if you look at nine a point zero eight point zero two i've just been calling up t statute it's not a substance statute of liability it doesn't establish the penalties it simply says a definition of when an accomplice will be guilty of the substantive statute i don't think that we would find anyone being convicted of this that perhaps helpful because we quoted or we cited these cases in our briefs is three other circuits have addressed what we call the facilitation statutes they're actually separate statutes that have the same knowledge instead of intent what i want the court to see is the distinction is this is simply a definition of liability you are convicted of the substantive statute whether it's here the drug statute whether in california it's the car theft statute this just says  petitioner fired the gun while others may have believed that his only role was in aiding and abetting him because washington has said that it doesn't matter we're right where we've been recently in mathis and in the scans of seeing