Who are “Principals?”
Who are “Principals?”
The MCM creates two categories of individuals that can be guilty of an offense as a principal: 1) Perpetrators; 2) Other Parties.
“A perpetrator is one who actually commits the offense, either by the perpetrator’s own hand, or by knowingly or intentionally inducing or setting in motion” acts by an agent or instrument which results in the commission of the offense. MCM, pt. IV, ¶ 1b(2)(a).
- United States v. Perry, 27 M.J. 796 (A.F.C.M.R. 1988) (holding accused liable as a perpetrator where, although accused never touched the stolen property, he directed another airman to grab a paper bag that had been left temporarily unguarded at a local bar).
- Suppose Person A intentionally causes an innocent Person B to commit an offense’s act against Person B’s will. The offense’s mens rea requirement may be satisfied by Person A’s criminal intent. In such a case, only Person A is guilty of a crime. United States v. Minor, 11 M.J. 608 (A.C.M.R. 1981) (holding accused liable as a principal to sodomy, where accused makes himself a party to the co-accused’s threat compelling a victim’s boyfriend to commit sodomy on victim).
- Authority of government “agent” or “decoy,” however, may prevent liability as a perpetrator. United States v. Sneed, 38 C.M.R. 249 (C.M.A. 1968). Accused proposed theft of military property to two other soldiers. Soldiers informed military authorities and were told to go along with the proposal. Accused subsequently directed one Soldier to load military property on a truck and directed the other Soldier to drive away with the military property. Because the Soldiers were government “agents or decoys,” the government never lost control or possession of the military property and their acts did not constitute a wrongful taking. Under the circumstances, the accused never acquired possession, dominion, or control; conviction for larceny reversed, and lesser included offense of attempted larceny affirmed. See also United States v. Klink, 14 M.J. 743 (A.F.C.M.R. 1982) (larceny upheld where accused, along with assistance of two government operatives, actually took goods from a government warehouse, carried them to a dock, loaded them into getaway vehicle, and helped drive them away).
“If one is not a perpetrator, to be guilty of an offense committed by the perpetrator, the person must” meet the two requirements listed at MCM, pt. IV, 1b(2)(b).
- Aider and Abettor. Case law still predominantly describes the MCM’s “Other Party” liability as “aider and abettor liability.” Aiding and abetting requires the following proof: “(1) the specific intent to facilitate the commission of a crime by another; (2) guilty knowledge on the part of the accused; (3) that an offense was being committed by someone; and (4) that the accused assisted or participated in the commission of an offense.” United States v. Pritchett, 31 M.J. 213 (C.M.A. 1990). See discussion below regarding the basis for principal liability.
- Article 77 is broad enough to encompass vicarious liability of coconspirators. United States v. Browning, 54 M.J. 1, 7 (C.A.A.F. 2000) (holding that prosecution could prove larceny and fraudulent claim charges on theory that accused was perpetrator, aider and abettor, or coconspirator, even though conspiracy was not on the charge sheet).
- A conspirator may be convicted of substantive offenses committed by a co-conspirator, provided such offenses were committed in furtherance of the agreement while the agreement continued to exist and the conspirator remains a party to it. MCM, pt. IV, 5c(5); Pinkerton v. United States, 328 U.S. 640 (1946); United States v. Browning, 54 M.J. 1 (C.A.A.F. 2000); United States v. Gaeta, 14 M.J. 383 (C.M.A. 1983) (members were properly instructed on liability for co-conspirator’s drug distribution; citing Nye and Nissen v. United States, 336 U.S. 613 (1949)); United States v. Figueroa, 28 M.J. 570 (N.M.C.M.R. 1989) (guilty plea to drug distribution by one co-conspirator to another coconspirator was provident even though accused did not physically participate in the distribution).
- Basis for Liability: Actus Reus (Assist, encourage, advise, instigate, counsel,command, procure)
- United States v. Speer, 40 M.J. 230 (C.M.A. 1994). An accused aids and abets the offense of drug distribution when he verifies purchase price and accepts the cash payment from the buyer, even though the delivery of the drugs has been completed, because he facilitates the “financial climax of the deal.” The court adopts the “criminal venture” approach to aiding and abetting.
- United States v. Bolden, 28 M.J. 127 (C.M.A. 1989). Accused was guilty of larceny as an aider and abettor where he suggested and assisted a “sham” marriage to obtain quarters allowance and a false rental agreement that overstated the monthly rent.(4) United States v. Patterson, 21 C.M.R. 135 (C.M.A. 1956). An accused who blocked a door with the intent of preventing the escape of the victim from his assailant aided and abetted the assailant.(5) United States v. Jacobs, 2 C.M.R. 115 (C.M.A. 1952). Accused and three others broke into a private home and assaulted the occupant. Although the accused did not personally take property from victim, he aided and abetted the others in committing a robbery and was liable as a principal. The “assault provides the necessary act of assistance, and accordingly we have before us much more than mere presence at the scene of the crime.”
- Article 77 requires an affirmative step on the part of the accused to be liable as an aider and abettor. United States v. Thompson, 50 M.J. 257 (1999). The evidence was legally sufficient for a conviction of rape as a principal where the accused participated in getting the victim helplessly intoxicated, knew a friend was going to have intercourse with the victim, did nothing to dissuade the friend when he looked to the accused for approval, and provided the friend with a condom.
- Basis for Liability: Mens Rea (Shared Criminal Intent with Perpetrator)
- In the case of an accomplice, the intent element may be satisfied with “proof that the accomplice shared in the perpetrator’s criminal purpose and intended to facilitate the intent of the perpetrator with respect to the ommission of the offense.” United States v. Mitchell, 66 M.J. 176 (C.A.A.F. 2008) (in a guilty plea for aiding and abetting an indecent assault, the accused admitted to acting with the specific intent to gratify the principal’s lust and sexual desires and the court concluded that there was no need to demonstrate that the aider and abettor intended to gratify his own lust and sexual desires).
- The requisite mens rea for aiding and abetting is sharing the criminal intent or purpose of the active perpetrator of the crime. United States v. Jacobs, 2 C.M.R. 115, 117 (C.M.A. 1952) (“[t]he proof must show that the aider or abettor . . . participated in it as in something he wished to bring about, that he sought by his action to make it successful”) (prosecution under Articles of War, because offense pre-dated effective date of the UCMJ); United States v. Bolden, 28 M.J. 127 (C.M.A. 1989); United States v. Gosselin, 62 M.J. 349 (2006) (record did not reflect a shared “criminal purpose” of introducing drugs onto the base).
- United States v. Fullen, 1 M.J. 853 (A.F.C.M.R. 1976). Accused agreed with two others to lure the victim to a dark area where they would grab and rob the victim. According to the accused, he was unaware that one of his companions was going to strike the victim with a pipe. After the victim fell to the ground, the accused took the victim’s wallet, which contained $9. Accused was guilty of robbery, because the intended grabbing would have been an assault sufficient for the compound offenseof robbery.
- United States v. Patterson, 21 C.M.R. 135 (C.M.A. 1956). Accused pulled victim to the floor, and co-accused hit victim with chair. Later the same day, the co-accused struck victim several times in the face with a large belt buckle. Victim tried to flee, but accused blocked access to the door and co-accused bit victim’s ear. Notwithstanding accused’s claim that he did not intend that an aggravated assault be committed, the facts belie his claim and support conviction of aggravated assault. Principals are chargeable with results that flow as natural and probable consequences of the offense subjectively intended.
- An aider or abettor may be guilty of an offense of greater or lesser seriousness than the perpetrator, depending on his level of intent. MCM, pt. IV, 1b(4). United States v. Jackson, 19 C.M.R. 319 (C.M.A. 1955). Accused and co-accused assaulted the victim. Co-accused stabbed the victim, who subsequently died. Both accused were convicted of premeditated murder at a joint trial. Court affirmed co-accused’s conviction but reversed accused’s conviction, because of failure to instruct on lesser included offense of involuntary manslaughter. The aider and abettor may be guilty in a different degree from the principal, and the law holds each accountable according to the turpitude of his own motive. Compare United States v. Richards, 56 M.J. 282 (2002) (intent to kill or inflict great bodily harm by kicking the victim sufficient to establish guilt as an aider and abettor of voluntary manslaughter even though death caused by co-accused stabbing the victim).
- Presence at the Scene of the Crime. Appellate courts have considered the extent to which presence at the scene of the crime constitutes a sufficient act or
evinces sufficient intent to establish Article 77 liability.
- Presence is not necessary. Presence at the scene of a crime is not necessary to make one a party to the crime and liable as a principal. See United States v. Carter, 23 C.M.R. 872 (A.F.B.R. 1957) Accused who loaned his car to a friend with the knowledge that it was going to be used in the commission of a larceny was guilty of larceny on aiding and abetting theory, even though he did not know all the details of how the crime was to be committed and was not present at the commission of the crime.
- Presence is not sufficient. Mere presence at the scene of crime does not make one a principal. MCM, pt. IV, ¶ 1b(3)(b). See United States v. Shelly, 19 M.J. 325 (C.M.A. 1985) (holding that mere presence in a misappropriated vehicle did not make the accused liable as a principal); United States v. Waluski, 21 C.M.R. 46 (C.M.A. 1956) (holding that mere presence was insufficient to support finding that accused aided and abetted the driver in the culpably negligent operation of a vehicle); United States v. Johnson, 19 C.M.R. 146 (C.M.A. 1955) (holding that mere presence with group of pedestrians who robbed a passerby was insufficient to support conviction as aider and abettor); United States v. Guest, 11 C.M.R. 147 (C.M.A. 1953) (holding that evidence was insufficient to support conviction as aider and abettor of murder and larceny, even though the accused was present at the scene of the murder, robbery, and subsequent discussion of the sale of the stolen property, because he did nothing to encourage or aid the murder or the larceny); United States v. Gosselin, 62 M.J. 349 (2006) (mere presence in the car with drugs not enough to establish guilt, citing United States v. Burroughs, 12 M.J. 380 (C.M.A. 1982)).
- Presence may be a factor in establishing liability. United States v. Pritchett, 31 M.J. 213 (C.M.A. 1990).
- United States v. Cobb, 45 M.J. 82 (C.A.A.F. 1996). Evidence was legally sufficient to support accused’s conviction as an aider and abettor to robbery when he was present at crime, fully aware of his companion’s impending crime, expected and in fact was offered a share of the proceeds, and may have held perpetrator’s feet as he leaned out of vehicle to effect robbery.
- United States v. Pritchett, 31 M.J. 213 (C.M.A. 1990). The fact that the wife shared an apartment with the accused, the fact that 166 grams of marijuana were stored in a coffee can in a dresser in the only bathroom in the apartment, the fact that the accused knowingly permitted his residence to be used as a respository for the drugs, the fact that the accused was found caught after the sale in possession of a purse that contained marked bills from the drug sale, and the fact that the appellant’s fingerprints were found on several foil wrapped pieces in the can were sufficient to show that the accused aided and abetted his wife’s possession with intent to distribute marijuana. Additionally, his immediate presence during the drug sale, “his preliminary drug talk, and his maintenance of a drug-sale safe house” were sufficient to constitute active encouragement and assistance to support a conviction for aiding and abetting his wife’s drug distribution. Finally, the accused’s facilitation of his wife’s drug distribution, the fact that the sale took place in a common area of the home while the accused was at home, and the fact that the money from the controlled buy was found in the accused’s possession were sufficient to show that the accused aided and abetted his wife’s distribution of marijuana.
- United States v. Dunn, 27 M.J. 624 (A.F.C.M.R. 1988). Accused’s presence at the scene of a shoplifting, perpetrated as part of the accused’s criminal training, was sufficient to establish his guilt for larceny as an aider and abettor.
- United States v. Hatchett, 46 C.M.R. 1239 (N.M.C.M.R. 1973). Hitchhiker sat in back seat of vehicle between accused and active perpetrator. As car moved along, active perpetrator robbed victim. Accused was guilty of robbery. He was aware the victim was given ride in order to be robbed and his presence in the rear seat of the vehicle “ensured the victim could not escape.”
- Failure to Stop Crime. Failure to stop a crime does not constitute aiding and
abetting unless there is an affirmative duty to interfere (e.g., a security guard). If a person has a duty to interfere, but fails to do so, that person is a party to the crime if such noninterference is intended to and does operate as an aid or encouragement to the perpetrator. MCM, pt. IV, ¶ 1b(2)(b). See United States v. Thompson, 22 M.J. 40 (C.M.A. 1986) (holding no general duty of NCOs to prevent crime absent “identifiable regulation, directive, or custom of the service.”); United States v. Simmons, 63 M.J. 89 (2006) (duty of NCO to prevent crime within unit may arise, but failure to act must be accompanied by shared criminal purpose).
- Liability found. See United States v. Shearer, 44 M.J. 330 (1996) (affirming conviction after of guilty plea to aiding and abetting flight from the scene of an accident where accused admitted that he had a duty to report the identity of the driver to Japanese authorities at the scene of the accident); United States v. Crouch, 11 M.J. 128 (C.M.A. 1981) (motor pool guard allowed friends to steal tools); United States v. Ford, 30 C.M.R. 31 (C.M.A. 1960) (evidence showed that security guard told perpetrators about unsecured building and his failure to interfere was intended to encourage fellow guards to steal unsecured property).
- No liability found. See United States v. Epps, 25 M.J. 319 (C.M.A. 1987) (under the facts, failure to stop barracks larceny did not make accused an aider and abettor); United States v. Shelly, 19 M.J. 325 (C.M.A. 1985) (government failed to prove the existence of duty of senior vehicle occupant to ensure the safe operation of the vehicle); United States v. McCarthy, 29 C.M.R. 574 (C.M.A. 1960) (after advising subordinates not to steal hubcaps, lieutenant’s failure to take active measures to prevent crime committed in his presence did not establish his guilt as a principal); United States v. Lyons, 28 C.M.R. 292 (C.M.A. 1959) (holding that a truck guard who accepted money to “see nothing” not liable as an aider or abettor where he was not told why he was offered the money and there was no evidence that he participated in the venture as something he desired to bring about); United States v. Fuller, 25 M.J. 514 (A.C.M.R. 1987) (soldier, whose job was fuel handler, had no duty to prevent burning of barracks room).
- Duty to Report Crime. As a general rule, mere failure to report a crime does not by itself make one an aider and abettor. However, statutory exceptions to this rule may exist in certain circumstances. See, e.g., 18 U.S.C. §793(f) (defining criminal offense to fail to report illegal disposition of national defense information). Also, the services can require that personnel report offenses that they observe. Thus, failure to report a crime may be a dereliction under some circumstances. See United States v. Heyward, 22 M.J. 35 (C.M.A. 1985) (Air Force regulation imposing special duty to report drug abuse did not violate the Fifth Amendment, because it did not compel members to report their own illegal acts but only those of other members) cert. denied, 479 U.S. 1011 (1986); United States v. Bland, 39 M.J. 921 (N.M.C.M.R. 1994) (upholding Navy regulation imposing a general duty to report crime which has been observed).