2479. What Is Not Required To Prove Aiding And Abetting

There must be a guilty principal before there can be aider and abettor. United States v. Washington, 106 F.3d 983, 1003 (D.C. Cir.), petition for cert. filed, (July 29, 1997) (No. 97-5423). However, the government need not prove the actual identity of principal, provided the evidence shows that the underlying crime was committed by someone. United States v. Clark, 980 F.2d 1143, 1146 (8th Cir. 1992). It is not necessary that the aider and abettor know who actually committed the substantive offense. United States v. Jackson, 72 F.3d 1370, 1385 (9th Cir. 1995), cert. denied, __ U.S. __, 116 S.Ct. 1546, 134 L.Ed.2d 649 (1996).

In fact, because liability under § 2 is treated as principal liability, there is no requirement that a de facto principal be convicted of an offense prior to convicting someone as an aider and abettor, nor is there even a bar to prosecuting someone as an aider and abettor after an alleged de facto principal is acquitted. Standefer, 447 U.S. at 15-20, 100 S.Ct. at 2003-06.

Some courts have carved out significant exceptions to the rule that there must be a guilty principal and a substantive crime committed. For example, it is now generally accepted that an accomplice may be convicted, notwithstanding the fact that the principal has not yet been tried or has been acquitted in a separate trial. Wayne R. Lafave, Modern Criminal Law: Cases, Comments and Questions 754 (2d ed. 1988). Similarly, some courts have stated that an accomplice may be convicted despite the fact that the principal was found not guilty based on some defense not available to the accomplice, such as entrapment or insanity. Id. Some courts have also held that an aiding and abetting conviction of a completed substantive offense may stand even if the principal is a government agent with no guilty intent, and even if, therefore, no substantive crime was actually committed. See United States v. Meinster, 619 F.2d 1041, 1046 (4th Cir. 1980); United States v. Gould, 419 F.2d 825, 826 (9th Cir. 1969).

The proof must show someone other than the aider and abettor could have satisfied all the requirements of the substantive offense. United States v. Yost, 24 F.3d 99, 104 (10th Cir. 1994). One cannot aid and abet oneself. Id.

It is unnecessary to show that the aider and abettor received compensation or have any stake in the transaction to be convicted. Id. The evidence need not show the defendant participated in every phase of the venture. United States v. Howard, 13 F.3d 1500, 1502 (11th Cir. 1994).

It has been adjudged repeatedly that the fact that a defendant was incompetent to commit the offense as principal by reason of not being of a particular age, sex, condition, or class, he may, nevertheless, be punished as procurer or abettor. Id. This doctrine is supported by reason for if it were not sound, there could be no punishment of the crime of procuring another to commit an offense, although the procurer might share in the proceeds of the crime and be actuated by the worst of motives. Id.

[updated October 1998]