The Honorable Lynn S. Adelman of the Eastern District of 

Wisconsin, sitting by designation.

In the

United States Court of Appeals

For the Seventh Circuit

Nos. 10-1430 & 10-1657

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ROBERT GEORGE,

Defendant-Appellant.

Appeals from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 07-CR-441—Harry D. Leinenweber, Judge.

ARGUED AUGUST 16, 2011—DECIDED SEPTEMBER 9, 2011

Before CUDAHY and ROVNER, Circuit Judges, and

ADELMAN, District Judge.



CUDAHY, Circuit Judge. This opinion addresses the last

piece of unfinished business in the consolidated appeal

of Michael Spagnola and Robert George: the sufficiency

of the evidence supporting George’s conviction for at-
2 Nos. 10-1430 & 10-1657

This panel’s earlier opinion in this appeal features a more 1

thorough exposition of the underlying facts. United States v.

Spagnola, 632 F.3d 981 (2011).

tempting to possess with intent to distribute cocaine, in

violation of 21 U.S.C. § 841(a)(1). For the reasons that

follow, we affirm.

I.

Briefly, George and Spagnola are half-brothers, and 1

for reasons that are unclear, they came to the attention of

the Bureau of Alcohol, Tobacco, Firearms and Explosives

(“ATF”) as potentially being inclined toward armed

robbery and drug dealing. In June 2007, the ATF set up a

sting, whereby an ATF informant (or confidential informant, thus “CI”) approached George with an idea

to raid a drug stash house the CI knew about, and to

steal and resell the cocaine. The CI claimed to know a

disaffected drug courier, associated with the stash house,

who would support their robbery efforts. The courier

was actually an ATF agent. (The interactions involving

George and Spagnola were captured on tape, and these

recordings constituted the bulk of the trial evidence.)

George agreed to the CI’s proposed scheme, and he

recruited his half-brother Spagnola into the scheme

sometime around June 11. Spagnola indicated that he

was participating only because George had vouched for

the CI. Throughout June and early July, the four (George,

Spagnola, the CI and the “drug courier” ATF agent) met
Nos. 10-1430 & 10-1657 3

several times and developed the plan. Spagnola obtained a gun and ammunition. On June 25, in a meeting

with the CI, George suggested that instead of robbing the

stash house, they could draw out the drug courier and

rob him—thereby minimizing the risk of the operation.

The CI agreed and this became the revised plan. Also

around this time, George indicated that he had a

willing buyer for the cocaine, and that George had someone in mind to dispose of five kilos immediately. The three

agreed that the robbery would be on July 12: the three

would meet and drive together to the scene, a forest

preserve.

But on the morning of the planned robbery, George

surprised Spagnola and the CI by declining to attend.

He explained to the CI that he had to watch his son.

George reiterated that he had a purchaser for the anticipated yield of cocaine. The CI stated that George would

be paid $1000 per brick for selling the cocaine. In a

separate conversation, between George and Spagnola,

George suggested a man named Eddie as a replacement. Spagnola suggested instead that George enlist

their third brother, John, to replace George. It is not clear

whether George contacted a potential replacement, or

whether Spagnola succeeded in finding one himself.

Spagnola, armed with two guns, continued on to the

scene of the planned robbery. Consistent with the ATF’s

planned sting operation, he was arrested. George was

arrested the next day. After a joint trial, both Spagnola

and George were convicted of conspiracy to possess

with intent to distribute 5 kilograms or more of cocaine,

and attempting to possess with intent to distribute
4 Nos. 10-1430 & 10-1657

Spagnola was also charged with and convicted of two weap- 2

ons charges. See Spagnola, 632 F.3d at 984-85.

See Anders v. California, 386 U.S. 738 (1967). 3

At the outset, we note that it is possible to aid and abet a 4

principal’s attempt crime, including attempted possession of

(continued...)

cocaine. We have already upheld Spagnola’s convictions, 2

and we accepted George’s counsel’s Anders submission3

as to several trial and sentencing issues, and as to the

sufficiency of his conspiracy conviction.

II.

The remaining question is whether the evidence was

sufficient to support George’s conviction for attempted

possession of cocaine, notwithstanding his absence on

the morning of the robbery. Because this is an appellate

review of the evidentiary sufficiency of a conviction,

we inquire only into whether, when the facts are viewed

in the light most favorable to the Government, a rational

jury could have found the elements of the crime beyond

a reasonable doubt. See, e.g., United States v. Woods, 556

F.3d 616, 621 (7th Cir. 2009) (citing United States v.

Stevens, 453 F.3d 963 (7th Cir. 2006)). We often describe

this appellate hurdle as “nearly insurmountable.” See, e.g.,

Spagnola, 632 F.3d at 981; United States v. Spells, 537 F.3d

743, 746 (7th Cir. 2008).

Another legal principle is pivotal to this appeal: aiding

and abetting liability, under 18 U.S.C. § 2. Under subsec- 4
Nos. 10-1430 & 10-1657 5

(...continued) 4

narcotics. See United States v. Valencia, 907 F.2d 671, 677 & n.4

(7th Cir. 1990).

In like vein, aiding and abetting liability is not to be con- 5

flated with conspiracy, although the same facts may often

support both.

An aiding and abetting instruction was issued to the jury in 6

this case. Because we need only decide whether a reasonable

(continued...)

tion (a) of that section, “Whoever commits an offense

against the United States or aids [or] abets . . . its commission, is punishable as a principal.” A sufficient case for

aiding and abetting liability consists of “(1) association

with the unlawful venture, (2) knowing participation in

it, and (3) active contribution toward its success.” United

States v. McNeese, 901 F.2d 585, 608 (7th Cir. 1990). As to the

participation and active contribution elements, “ ‘a high

level of activity need not be shown’ although ‘mere presence’ and ‘guilt by association’ are insufficient.” United

States v. Sewell, 159 F.3d 275, 278 (7th Cir. 1998) (citations

omitted). Oral communication can sometimes be suffi- 5

cient if it is intended to support the completion of the

crime. See United States v. Sacks, 620 F.2d 239, 241 (10th

Cir. 1980) (affirming a conviction on an aiding and abetting

theory where “[the] evidence plainly shows defendant

acted affirmatively, though only through the act of speaking words calculated to assist in completing the sale.”).

We agree with the Government that George’s acts

leading up to the day of the robbery were sufficient to

support the conviction on an aiding and abetting theory.6
6 Nos. 10-1430 & 10-1657

(...continued) 6

jury could have convicted George on any permissible theory of

liability, we do not reach the Government’s weaker argument

that George himself committed an “attempt” despite his

absence on the morning of the robbery. See United States

v. Turner, 551 F.3d 657, 666 (7th Cir. 2008).

Further, there is no question that George “knew” the unlawful 7

nature of the venture, within the meaning of the second of

the three elements described in McNeese. So we consider that

if George “actively contributed,” then he also “knowingly

participated,” and thus all three elements will be satisfied. In

any event, this court has often used formulations of aiding

and abetting liability that contain only two elements. See, e.g.,

United States v. Taylor, 637 F.3d 812, 816 (7th Cir. 2011) (“To

establish that Taylor aided and abetted [the principal], the

government needed to prove that Taylor associated himself with the criminal activity and that he voluntarily participated in it.”). We therefore focus on the “active contribution”

element.

A rational jury could have found that George aided and

abetted Spagnola’s attempt to possess cocaine on the

appointed day. Initially, there is no question that George

associated with this unlawful venture, so the matter

boils down to whether he knowingly participated and

actively contributed to its success. We think that the act 7

of recruiting Spagnola into the conspiracy, although it

occurred about a month before the day of the attempt,

was nevertheless “active contribution to the plan’s success.” So was altering the original plan of the robbery

in order to double-cross the drug courier. Moreover, the

jury was entitled to believe George’s representations,
Nos. 10-1430 & 10-1657 7

See, e.g., United States v. Wesson, 889 F.2d 134, 135 (7th Cir.

8

1989) (“You may ‘abet’ the crime of possession with intent to

distribute by procuring the customers and maintaining the

market in which the possession is profitable, even though

you do nothing else to help the possessor get or retain possession.”).

captured on tape, that he had arranged to dispose of

the cocaine.8

George’s contrary position does nothing to detract

from the significance of his acts leading up to the attempted robbery. Rather, his position amounts to an

argument that the dispositive fact was his absence on

the morning of the robbery. But one need not be

physically present at a crime scene to aid and abet the

principal, because “one who puts in motion or assists in

the illegal enterprise . . . is guilty as a principal even

though he intentionally refrained from the direct act

constituting the completed offense.” United States v.

Garrett, 720 F.2d 705, 714 (D.C. Cir. 1983) (citing to the

legislative history of 18 U.S.C. § 2, H.R. Rep. No. 304, 80th

Cong., 1st Sess. A5 (1947)). See also United States v. Garcia,

242 F.3d 593, 597 (5th Cir. 2001) (“Just as the mere

presence at the scene of the crime is not sufficient, by

itself, to support aiding and abetting liability, mere

absence from the scene does not, by itself, negate such

liability.”) (citations omitted); United States v. Waters, 461

F.2d 248, 251 (10th Cir. 1972). Indeed, requiring physical

presence or contemporaneous contributing acts would

greatly narrow aiding and abetting liability, conceivably

exonerating supportive acts that are indispensable to
8 Nos. 10-1430 & 10-1657

A 1948 Third Circuit case involving organized crime presents 9

a good example of why the presence at the crime scene, and the

contemporaneousness of the abettor’s assistance, cannot

properly be dispositive:

Amorosa, brought into the group by Silano, guided the

[hijacked] tractor drawn trailer to the house in New

Jersey where it was unloaded, Silano assisting;

Amorosa then said he would dispose of the stolen

goods. All that bespeaks principals in this crime . . . .

The absence of the appellants from the immediate

scene of the [hijacking] is not enough to defeat their

conviction as principals.

United States v. Amorosa, 167 F.2d 596, 599-600 (3d Cir. 1948).

the principal’s crime. And we are aware of no particular 9

limit on the time that may pass between the “active

contribution to the plan’s success,” and the principal’s

crime. Undoubtedly, these considerations—the passage

of time and the presence vel non of the alleged abettor-defendant at the principal’s crime—are important

considerations, but they are not per se decisive of aiding

and abetting liability.

Much of the appeal of George’s argument seems to

derive from the fact that his nonattendance on the day

of the robbery was unplanned. Although the point is

never made explicit, there seems to be a subtle invitation

to treat George as having “withdrawn” from the enterprise by absenting himself on the day of the robbery. After

all, if George and Spagnola had planned all along that

Spagnola would commit the robbery without George

present, George’s position (that his preparatory efforts
Nos. 10-1430 & 10-1657 9

did not amount to aiding and abetting) would lose

much of its force. But his present argument is in fact

precisely that weak, because he did not effectively withdraw by failing to participate on the day of the robbery.

See Garrett, 720 F.2d at 714 (explaining that withdrawal

for aiding and abetting purposes mirrors withdrawal in

the context of conspiracy, and “to establish an effective

withdrawal [from a conspiracy], the defendant must

show that he took affirmative action to defeat or disavow the purpose of the conspiracy.”). An abettor cannot

withdraw merely by satisfying himself that his participation is no longer needed. Id.

For the foregoing reasons, we AFFIRM the judgment of the

district court.

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