2477. Charging Aiding And Abetting

The rule is well established that one who has been indicted as a principal may be convicted on evidence showing that he has merely aided and abetted the commission of the offense. United States v. Gordon, 812 F.2d 965, 969 (5th Cir.), cert. denied, 482 U.S. 908, 107 S.Ct. 2488, 96 L.Ed.2d 380 (1987). An aider and abettor charge is implicit in all indictments for substantive offenses so it does not need to be specifically pleaded for a conviction to be sustained under aiding and abetting. Dodd, 43 F.3d at 762 n.5; United States v. Salazar, 983 F.2d 778, 782 (7th Cir. 1993); Gordon, 812 F.2d at 969; Kegler, 724 F.2d at 201; Perry, 643 F.2d at 45; United States v. Garrison, 527 F.2d 998, 999 (8th Cir. 1975); United States v. Sannicandro, 434 F.2d 321, 324 (9th Cir. 1970); United States v. Lester, 363 F.2d 68, 72 (6th Cir. 1966), cert. denied, 385 U.S. 1002, 87 S.Ct. 705, 17 L.Ed.2d 542 (1967).

The cases state that although aiding and abetting is not required to be specifically pleaded, such defendants should not be subjected to unfair surprise as to this issue. United States v. Loscalzo, 18 F.3d 374, 383 (7th Cir. 1994); United States v. Neal, 951 F.2d 630, 633 (5th Cir. 1992). Cases state that the burden is on the defendant to show unfair surprise. Id. A reference to § 2 on the face of the indictment seems to go a long way toward preventing any allegation of unfair surprise.

Therefore, a better practice whenever the basis for the charge of aiding and abetting is anticipated would be to have the indictment framed in the alternative, or at least have a reference to § 2 noted in the charging instrument. United States v. Duke, 409 F.2d 669, 671 (4th Cir. 1969), cert. denied, 397 U.S. 1062, 90 S.Ct. 1497, 25 L.Ed.2d 683 (1970).

Title 18, United States Code, § 2 also provides venue to prosecute an accessory not only where the accessorial acts occur but also where the substantive crime was committed. United States v. Buttorff, 572 F.2d 619, 627 (8th Cir.), cert. denied, 437 U.S. 906, 98 S.Ct. 3095, 57 L.Ed.2d 1136 (1978); United States v. Kilpatrick, 458 F.2d 864, 868 (7th Cir. 1972); United States v. Bozza, 365 F.2d 206, 221 (2d Cir. 1966).

[updated October 1998]