Chapter Nine: Group Criminality

Sections in Chapter 9

Introduction
Complicity
– Check Your Understanding 9-1
Conspiracy
– Check Your Understanding 9-2
Withdrawal or Abandonment of a Conspiracy
Complicity, Conspiracy, and Drug Offenses
– Check Your Understanding 9-3

Introduction

In many respects, criminal law is individualistic: it focuses on one defendant at a time, and it purports to assign responsibility for illegal conduct on the basis of the individual defendant’s own thoughts and actions. In some contrast to that individualistic perspective, this chapter examines important doctrines that assign criminal liability on the basis of an individual’s interactions with other persons. The doctrines of group criminality discussed here, accomplice liability and conspiracy, impose criminal liability on a person who participates in or encourages another person’s criminal activity in some way. Like the inchoate offenses discussed in the last chapter, these doctrines of group criminality may be seen as expansions of criminal liability, since they will often allow a defendant to be convicted and punished even in the absence of proof that the defendant himself or herself has in fact committed the conduct specified in the underlying statute.

Doctrines of complicity and conspiracy share another feature with the law of inchoate offenses discussed in the previous chapter: this area of law contains many abstractions and is often quite confusing to newcomers. For that reason, it may be useful to begin with a concrete example. Suppose Huey knows that Louie is preparing to rob a bank, and Huey offers Louie a gun. Louie takes the gun, robs the bank, and is convicted of robbery, defined as taking the property of another by force. Huey could be charged with robbery also, even though Huey did not himself enter the bank, take any property, or use any force. Louie would be “the principal” in traditional terminology, and Huey would be charged as an “accomplice,” sometimes also described as an aider and abettor. But notice: Huey would be charged with robbery as an accomplice; he is not charged with a separate offense called “complicity.” Huey-the-accomplice can be found guilty of the same offense (here, robbery) and subject to the same range of punishments as Louie-the principal. That’s one of the most important features of accomplice liability as it is usually defined: the accomplice can be convicted of the same offense, and punishable to the same degree, as the principal. Accomplice liability is derivative liability rather than direct liability, in that accomplice liability is derived from someone else’s actions.

Now assume that the prosecution can show that Huey and Louie agreed ahead of time to commit the bank robbery together (even if the plan was that only Louie would actually enter the bank and take money). Most jurisdictions treat that prior agreement as itself an independent crime: a conspiracy to commit robbery. In most jurisdictions, Huey and Louie could each be charged and convicted of two separate offenses: conspiracy to commit robbery, and robbery itself. In other jurisdictions, Huey and Louie could be convicted of either robbery or conspiracy to commit robbery. But whether or not a conspiracy charge “merges” with the completed offense, conspiracy exists in criminal codes as a separate offense. Accomplice liability, in contrast, is simply a way for the prosecution to establish that a defendant is guilty of some other offense (robbery, in the example above) even when the defendant did not commit all relevant elements himself.

Although conspiracy is a separate offense, it is an inchoate offense like attempt or solicitation. Like those offenses, a conspiracy charge should specify the underlying crime that was the aim of the conspiracy. Recall that a defendant is never convicted of attempt, period; instead, a defendant is convicted of attempt to commit murder, attempted distribution of narcotics, attempted robbery, and so on. Similarly, a defendant is not convicted of conspiracy, period; instead, the conviction will be for conspiracy to commit murder, conspiracy to distribute narcotics, conspiracy to commit robbery, and so forth.

The basic description offered thus far distinguishes between conspiracy as an independent (but inchoate) offense and complicity (or accomplice liability) as a theory of derivative liability. Unfortunately, it gets even more complicated: some jurisdictions have developed an additional theory of derivative liability based on participation in a conspiracy. Consider Huey and Louie one more time. Suppose they have formed a conspiracy to rob a bank, with the plan that Louie will enter the bank alone, take property by force, and leave as quickly as possible. And suppose that while inside the bank, Louie commits some other offense, such as the destruction of property. Under a doctrine of derivative liability known as Pinkerton liability, after Pinkerton v. United States (1946), some jurisdictions will allow Huey to be convicted of the crime of destruction of property, even if that crime was not part of the specific plan that Huey and Louie made together. This area of law is complex, but the cases and notes in this chapter will illustrate the key concepts.

Like the inchoate offenses discussed in the last chapter, doctrines of complicity and conspiracy originated in common law courts, but both are usually codified in statutes today. As we will see, however, these statutes often fail to offer precise definitions of the concepts of complicity or conspiracy, so courts often turn to common law principles, or the Model Penal Code, for more guidance. The Model Penal Code expanded common law principles of complicity and conspiracy in some respects, with the explicit aim of making convictions easier to obtain. Those expansions may help explain the increased scale of convictions and imprisonment in the United States. Although it is difficult to gather data, it appears that convictions on theories of accomplice liability and convictions for conspiracy have both increased substantially over the past 50 to 60 years. Conspiracy charges are particularly important in the context of drug crimes, as discussed at the end of this chapter.

Complicity

18 U.S.C. § 2

(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.

(b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.

18 U.S.C. § 924(c)(1)(a)

Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law, any person who, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime that provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime–

(i) be sentenced to a term of imprisonment of not less than 5 years;

(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and

(iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years.

Justus C. ROSEMOND, Petitioner

v.

UNITED STATES

Supreme Court of the United States
572 U.S. 65

Decided March 5, 2014

Justice KAGAN delivered the opinion of the Court.

This case arises from a drug deal gone bad. Vashti Perez arranged to sell a pound of marijuana to Ricardo Gonzales and Coby Painter. She drove to a local park to make the exchange, accompanied by two confederates, Ronald Joseph and petitioner Justus Rosemond. One of those men apparently took the front passenger seat and the other sat in the back, but witnesses dispute who was where. At the designated meeting place, Gonzales climbed into the car’s backseat while Painter waited outside. The backseat passenger allowed Gonzales to inspect the marijuana. But rather than handing over money, Gonzales punched that man in the face and fled with the drugs. As Gonzales and Painter ran away, one of the male passengers—but again, which one is contested—exited the car and fired several shots from a semiautomatic handgun. The shooter then re-entered the vehicle, and all three would-be drug dealers gave chase after the buyers-turned-robbers. But before the three could catch their quarry, a police officer, responding to a dispatcher’s alert, pulled their car over. This federal prosecution of Rosemond followed. [The Government agreed not to bring charges against the other four participants in the narcotics deal in exchange for their giving truthful testimony against Rosemond.]

The Government charged Rosemond with, inter alia, violating § 924(c) by using a gun in connection with a drug trafficking crime, or aiding and abetting that offense under [18 U.S.C. § 2]. Section 924(c) provides that “any person who, during and in relation to any crime of violence or drug trafficking crime[,] … uses or carries a firearm,” shall receive a five-year mandatory-minimum sentence, with seven- and ten-year minimums applicable, respectively, if the firearm is also brandished or discharged. 18 U.S.C. § 924(c)(1)(A). Section 2, for its part, is the federal aiding and abetting statute: It provides that “[w]hoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission is punishable as a principal.”

Consistent with the indictment, the Government prosecuted the § 924(c) charge on two alternative theories. The Government’s primary contention was that Rosemond himself used the firearm during the aborted drug transaction. But recognizing that the identity of the shooter was disputed, the Government also offered a back-up argument: Even if it was Joseph who fired the gun as the drug deal fell apart, Rosemond aided and abetted the § 924(c) violation.

The District Judge accordingly instructed the jury on aiding and abetting law. He first explained, in a way challenged by neither party, the rudiments of § 2. Under that statute, the judge stated, “[a] person who aids or abets another to commit an offense is just as guilty of that offense as if he committed it himself.” And in order to aid or abet, the defendant must “willfully and knowingly associate[ ] himself in some way with the crime, and … seek[ ] by some act to help make the crime succeed.” The judge then turned to applying those general principles to § 924 (c)—and there, he deviated from an instruction Rosemond had proposed. According to Rosemond, a defendant could be found guilty of aiding or abetting a § 924(c) violation only if he “intentionally took some action to facilitate or encourage the use of the firearm,” as opposed to the predicate drug offense. But the District Judge disagreed, instead telling the jury that it could convict if “(1) the defendant knew his cohort used a firearm in the drug trafficking crime, and (2) the defendant knowingly and actively participated in the drug trafficking crime.” In closing argument, the prosecutor contended that Rosemond easily satisfied that standard, so that even if he had not “fired the gun, he’s still guilty of the crime.” After all, the prosecutor stated, Rosemond “certainly knew [of] and actively participated in” the drug transaction. “And with regards to the other element,” the prosecutor urged, “the fact is a person cannot be present and active at a drug deal when shots are fired and not know their cohort is using a gun. You simply can’t do it.”

The jury convicted Rosemond of violating § 924(c) (as well as all other offenses charged). The verdict form was general: It did not reveal whether the jury found that Rosemond himself had used the gun or instead had aided and abetted a confederate’s use during the marijuana deal. As required by § 924(c), the trial court imposed a consecutive sentence of 120 months of imprisonment for the statute’s violation.

The Tenth Circuit affirmed… We granted certiorari….

II

The federal aiding and abetting statute, 18 U.S.C. § 2, states that a person who furthers—more specifically, who “aids, abets, counsels, commands, induces or procures”—the commission of a federal offense “is punishable as a principal.” That provision derives from (though simplifies) common-law standards for accomplice liability. And in so doing, § 2 reflects a centuries-old view of culpability: that a person may be responsible for a crime he has not personally carried out if he helps another to complete its commission. See J. Hawley & M. McGregor, Criminal Law 81 (1899).

We have previously held that under § 2 “those who provide knowing aid to persons committing federal crimes, with the intent to facilitate the crime, are themselves committing a crime.” Both parties here embrace that formulation, and agree as well that it has two components. As at common law, a person is liable under § 2 for aiding and abetting a crime if (and only if) he (1) takes an affirmative act in furtherance of that offense, (2) with the intent of facilitating the offense’s commission.

The questions that the parties dispute … concern how those two requirements—affirmative act and intent—apply in a prosecution for aiding and abetting a § 924(c) offense. Those questions arise from the compound nature of that provision. Recall that § 924(c) forbids “us[ing] or carr[ying] a firearm” when engaged in a “crime of violence or drug trafficking crime.” The prosecutor must show the use or carriage of a gun; so too he must prove the commission of a predicate (violent or drug trafficking) offense. For purposes of ascertaining aiding and abetting liability, we therefore must consider: When does a person act to further this double-barreled crime? And when does he intend to facilitate its commission? We address each issue in turn.

A

Consider first Rosemond’s account of his conduct (divorced from any issues of intent). Rosemond actively participated in a drug transaction, accompanying two others to a site where money was to be exchanged for a pound of marijuana. But as he tells it, he took no action with respect to any firearm. He did not buy or borrow a gun to facilitate the narcotics deal; he did not carry a gun to the scene; he did not use a gun during the subsequent events constituting this criminal misadventure. His acts thus advanced one part (the drug part) of a two-part incident—or to speak a bit more technically, one element (the drug element) of a two-element crime. Is that enough to satisfy the conduct requirement of this aiding and abetting charge, or must Rosemond, as he claims, have taken some act to assist the commission of the other (firearm) component of § 924(c)?

The common law imposed aiding and abetting liability on a person (possessing the requisite intent) who facilitated any part—even though not every part—of a criminal venture…. And so “[w]here several acts constitute[d] together one crime, if each [was] separately performed by a different individual[,] … all [were] principals as to the whole.” Indeed … a person’s involvement in the crime could be not merely partial but minimal too: “The quantity [of assistance was] immaterial,” so long as the accomplice did “something” to aid the crime. After all, the common law maintained, every little bit helps—and a contribution to some part of a crime aids the whole.

That principle continues to govern aiding and abetting law under § 2: As almost every court of appeals has held, “[a] defendant can be convicted as an aider and abettor without proof that he participated in each and every element of the offense.” United States v. Sigalow (2^nd Cir. 1987). In proscribing aiding and abetting, Congress used language that “comprehends all assistance rendered by words, acts, encouragement, support, or presence”—even if that aid relates to only one (or some) of a crime’s phases or elements. So, for example, in upholding convictions for abetting a tax evasion scheme, this Court found “irrelevant” the defendants’ “non-participation” in filing a false return; we thought they had amply facilitated the illegal scheme by helping a confederate conceal his assets. United States v. Johnson (1943). “[A]ll who shared in [the overall crime’s] execution,” we explained, “have equal responsibility before the law, whatever may have been [their] different roles.” And similarly, we approved a conviction for abetting mail fraud even though the defendant had played no part in mailing the fraudulent documents; it was enough to satisfy the law’s conduct requirement that he had in other ways aided the deception. The division of labor between two (or more) confederates thus has no significance: A strategy of “you take that element, I’ll take this one” would free neither party from liability.

Under that established approach, Rosemond’s participation in the drug deal here satisfies the affirmative-act requirement for aiding and abetting a § 924(c) violation. As we have previously described, the commission of a drug trafficking (or violent) crime is—no less than the use of a firearm—an “essential conduct element of the § 924(c) offense.” In enacting the statute, “Congress proscribed both the use of the firearm and the commission of acts that constitute” a drug trafficking crime. Rosemond therefore could assist in § 924(c)’s violation by facilitating either the drug transaction or the firearm use (or of course both). In helping to bring about one part of the offense (whether trafficking drugs or using a gun), he necessarily helped to complete the whole. And that ends the analysis as to his conduct….

…[But,] as we will describe, an aiding and abetting conviction requires not just an act facilitating one or another element, but also a state of mind extending to the entire crime. And under that rule, a defendant may be convicted of abetting a § 924(c) violation only if his intent reaches beyond a simple drug sale, to an armed one. Aiding and abetting law’s intent component—to which we now turn—thus preserves the distinction between assisting the predicate drug trafficking crime and assisting the broader § 924(c) offense.

B

… As previously explained, a person aids and abets a crime when (in addition to taking the requisite act) he intends to facilitate that offense’s commission. An intent to advance some different or lesser offense is not, or at least not usually, sufficient: Instead, the intent must go to the specific and entire crime charged—so here, to the full scope (predicate crime plus gun use) of § 924(c). ^[1] And the canonical formulation of that needed state of mind—later appropriated by this Court and oft-quoted in both parties’ briefs—is Judge Learned Hand’s: To aid and abet a crime, a defendant must not just “in some sort associate himself with the venture,” but also “participate in it as in something that he wishes to bring about” and “seek by his action to make it succeed.” Nye & Nissen v. United States (1949) (quoting United States v. Peoni (2^nd Cir. 1938).

We have previously found that intent requirement satisfied when a person actively participates in a criminal venture with full knowledge of the circumstances constituting the charged offense. … [S]everal Courts of Appeals have similarly held—addressing a fact pattern much like this one—that the unarmed driver of a getaway car had the requisite intent to aid and abet armed bank robbery if he “knew” that his confederates would use weapons in carrying out the crime. So for purposes of aiding and abetting law, a person who actively participates in a criminal scheme knowing its extent and character intends that scheme’s commission. ^[2]

The same principle holds here: An active participant in a drug transaction has the intent needed to aid and abet a § 924(c) violation when he knows that one of his confederates will carry a gun. In such a case, the accomplice has decided to join in the criminal venture, and share in its benefits, with full awareness of its scope—that the plan calls not just for a drug sale, but for an armed one. In so doing, he has chosen … to align himself with the illegal scheme in its entirety—including its use of a firearm…. He thus becomes responsible, in the typical way of aiders and abettors, for the conduct of others. He may not have brought the gun to the drug deal himself, but because he took part in that deal knowing a confederate would do so, he intended the commission of a § 924(c) offense—i.e., an armed drug sale.

For all that to be true, though, the § 924(c) defendant’s knowledge of a firearm must be advance knowledge—or otherwise said, knowledge that enables him to make the relevant legal (and indeed, moral) choice. When an accomplice knows beforehand of a confederate’s design to carry a gun, he can attempt to alter that plan or, if unsuccessful, withdraw from the enterprise; it is deciding instead to go ahead with his role in the venture that shows his intent to aid an armed offense. But when an accomplice knows nothing of a gun until it appears at the scene, he may already have completed his acts of assistance; or even if not, he may at that late point have no realistic opportunity to quit the crime. And when that is so, the defendant has not shown the requisite intent to assist a crime involving a gun. As even the Government concedes, an unarmed accomplice cannot aid and abet a § 924(c) violation unless he has “foreknowledge that his confederate will commit the offense with a firearm.” Brief for United States 38. For the reasons just given, we think that means knowledge at a time the accomplice can do something with it—most notably, opt to walk away.^[3]

…A final, metaphorical way of making the point: By virtue of § 924(c), using a firearm at a drug deal ups the ante. A would-be accomplice might decide to play at those perilous stakes. Or he might grasp that the better course is to fold his hand. What he should not expect is the capacity to hedge his bets, joining in a dangerous criminal scheme but evading its penalties by leaving use of the gun to someone else. Aiding and abetting law prevents that outcome, so long as the player knew the heightened stakes when he decided to stay in the game.

The Government, for its part, thinks we take too strict a view of when a defendant charged with abetting a § 924(c) violation must acquire that knowledge. As noted above, the Government recognizes that the accused accomplice must have “foreknowledge” of a gun’s presence. But the Government views that standard as met whenever the accomplice, having learned of the firearm, continues any act of assisting the drug transaction. According to the Government, the jury should convict such a defendant even if he became aware of the gun only after he realistically could have opted out of the crime.

But that approach, we think, would diminish too far the requirement that a defendant in a § 924(c) prosecution must intend to further an armed drug deal. Assume, for example, that an accomplice agrees to participate in a drug sale on the express condition that no one brings a gun to the place of exchange. But just as the parties are making the trade, the accomplice notices that one of his confederates has a (poorly) concealed firearm in his jacket. The Government would convict the accomplice of aiding and abetting a § 924(c) offense if he assists in completing the deal without incident, rather than running away or otherwise aborting the sale. But behaving as the Government suggests might increase the risk of gun violence—to the accomplice himself, other participants, or bystanders; and conversely, finishing the sale might be the best or only way to avoid that danger. In such a circumstance, a jury is entitled to find that the defendant intended only a drug sale—that he never intended to facilitate, and so does not bear responsibility for, a drug deal carried out with a gun. A defendant manifests that greater intent, and incurs the greater liability of § 924(c), when he chooses to participate in a drug transaction knowing it will involve a firearm; but he makes no such choice when that knowledge comes too late for him to be reasonably able to act upon it.^[4]

III

Under these principles, the District Court erred in instructing the jury…. As we have explained, active participation in a drug sale is sufficient for § 924(c) liability (even if the conduct does not extend to the firearm), so long as the defendant had prior knowledge of the gun’s involvement. The problem with the [District Court’s] instruction came in its description of that knowledge requirement. In telling the jury to consider merely whether Rosemond “knew his cohort used a firearm,” the court did not direct the jury to determine when Rosemond obtained the requisite knowledge. so, for example, the jury could have convicted even if Rosemond first learned of the gun when it was fired and he took no further action to advance the crime…

… As earlier described, the prosecutor asserted in closing argument that the court’s test was easily satisfied because “a person cannot be present and active at a drug deal when shots are fired and not know their cohort is using a gun.” The prosecutor thus invited the jury to convict Rosemond even if he first learned of the gun as it was discharged, and no matter what he did afterward. Once again, then, the message to the jury was that it need not find advance knowledge—exactly what we (and for that matter the Government) have said is required.

We send this case back to the Tenth Circuit to consider the appropriate consequence, if any, of the District Court’s error…. Accordingly, we vacate the judgment below and remand the case for further proceedings consistent with this opinion.

It is so ordered.

Justice ALITO, with whom Justice THOMAS joins, concurring in part and dissenting in part.

…I reject the Court’s conclusion that a conviction for aiding and abetting a violation of 18 U.S.C. § 924(c) demands proof that the alleged aider and abettor had what the Court terms “a realistic opportunity” to refrain from engaging in the conduct at issue. This rule represents an important and, as far as I am aware, unprecedented alteration of the law of aiding and abetting and of the law of intentionality generally.

…The Court imagines the following situation:

“[A]n accomplice agrees to participate in a drug sale on the express condition that no one brings a gun to the place of exchange. But just as the parties are making the trade, the accomplice notices that one of his confederates has a (poorly) concealed firearm in his jacket.”

If the accomplice, despite spotting the gun, continues to assist in the completion of the drug sale, has the accomplice aided and abetted the commission of a violation of § 924(c)?

The Court’s answer is “it depends.” Walking away, the Court observes, “might increase the risk of gun violence—to the accomplice himself, other participants, or bystanders; and conversely, finishing the sale might be the best or only way to avoid the danger.” Moreover—and this is where the seriously misguided step occurs—the Court says that if the risk of walking away exceeds (by some unspecified degree) the risk created by completing the sale and if the alleged aider and abettor chooses to continue for that reason, the alleged aider and abettor lacks the mens rea required for conviction.

What the Court has done is to convert what has up to now been an affirmative defense into a part of the required mens rea, and this step has very important conceptual and practical consequences. It fundamentally alters the prior understanding of mental states that form the foundation of substantive criminal law, and it places a strange and difficult burden on the prosecution.

That the Court has taken a radical step can be seen by comparing what the Court now holds with the traditional defense of necessity. That defense excuses a violation of law if “the harm which will result from compliance with the law is greater than that which will result from violation of it.” This is almost exactly the balance-of-risks calculus adopted by the Court, but under the traditional approach necessity is an affirmative defense. Necessity and the closely related defense of duress are affirmative defenses because they almost invariably do not negate the mens rea necessary to incur criminal liability.

This Court has made clear that, except in narrow circumstances, necessity and duress do not negate the mens rea required for conviction….

The Court confuses two fundamentally distinct concepts: intent and motive. It seems to assume that, if a defendant’s motive in aiding a criminal venture is to avoid some greater evil, he does not have the intent that the venture succeed. But the intent to undertake some act is of course perfectly consistent with the motive of avoiding adverse consequences which would otherwise occur. We can all testify to this from our daily experience. People wake up, go to work, balance their checkbooks, shop for groceries—and yes, commit crimes—because they believe something bad will happen if they do not do these things, not because the deepest desire of their heart is to do them. A person may only go to work in the morning to keep his or her family from destitution; that does not mean he or she does not intend to put in a full days work. In the same way, the fact that a defendant carries out a crime because he feels he must do so on pain of terrible consequences does not mean he does not intend to carry out the crime. When Jean Valjean stole a loaf of bread to feed his starving family, he certainly intended to commit theft; the fact that, had he been living in America today, he may have pleaded necessity as a defense does not change that fact. See V. Hugo, Les Misérables 54 (Fall River Press ed. 2012).

… Unsurprisingly, our cases have recognized that a lawful motive (such as necessity, duress, or self-defense) is consistent with the mens rea necessary to satisfy a requirement of intent…. Thus, it seems inarguable to me that the existence of the purpose or intent to carry out a crime is perfectly compatible with facts giving rise to a necessity or duress defense. Once that proposition is established, the Court’s error is readily apparent. The Court requires the Government to prove that a defendant in Rosemond’s situation could have walked away without risking harm greater than he would cause by continuing with the crime—circumstances that traditionally would support a necessity or duress defense. It imposes this requirement on the Government despite the fact that such dangerous circumstances simply do not bear on whether the defendant intends the § 924(c) offense to succeed, as (on the Court’s reading) is required for aiding and abetting liability.

The usual rule that a defendant bears the burden of proving affirmative defenses is justified by a compelling, commonsense intuition: “[W]here the facts with regard to an issue lie peculiarly in the knowledge of a party, that party is best situated to bear the burden of proof.” Smith v. United States (2013). By abandoning that rule in cases involving aiding and abetting of § 924(c) offenses, the Court creates a perverse arrangement whereby the prosecution must prove something that is peculiarly within the knowledge of the defendant. Imagine that A aids B in committing a § 924(c) offense and claims that he only learned of the gun once the crime had begun. If A had the burden of proof, he might testify that B was a hothead who had previously shot others who had crossed him. But under the Court’s rule, the prosecution, in order to show the intent needed to convict A as an aider and abettor, presumably has the burden of proving that B was not such a person and that A did not believe him to be. How is the prosecution to do this? By offering testimony by B’s friends and associates regarding his peaceful and easygoing nature? By introducing entries from A’s diary in which he reflects on the sense of safety he feels when carrying out criminal enterprises in B’s company? Furthermore, even if B were a hothead and A knew him to be such, A would presumably only be entitled to escape liability if he continued with the offense because of his fear of B’s reaction if he walked away. Under the Court’s rule, it is up to the Government to prove that A’s continued participation was not on account of his fear of B—but how? By introducing footage of a convenient security camera demonstrating that A’s eyes were not wide with fear, nor his breathing rapid?

The Court’s rule breaks with the common-law tradition and our case law. It also makes no sense. I respectfully dissent from that portion of the Court’s opinion which places on the Government the burden of proving that the alleged aider and abettor of a § 924(c) offense had what the Court terms “a realistic opportunity” to refrain from engaging in the conduct at issue.

Notes and questions on Rosemond

1. As you have seen throughout this course, crimes are often defined in terms of a combination of mental state elements and conduct elements. Accomplice liability is not itself an independent crime, but a theory of liability. However, courts sometimes speak of “the elements” of accomplice liability as a way of delineating the things the prosecution must show in order to obtain a conviction on an accomplice liability theory. And the “elements” of accomplice liability are often separated into intent and conduct, like the definitions to many crimes. What is the mental state that must be shown in order to prove that Rosemond is an accomplice to § 924(c)? What conduct, if any, must Rosemond have engaged in to be guilty of § 924(c) as an accomplice?
2. When one person is charged as an accomplice, the person who actually carries out the conduct elements of the underlying criminal offense is often described as “the principal.” For one person to be an accomplice, another person must be the principal – that is, someone must actually carry out the offense. In Rosemond, the prosecution apparently believed that Justus Rosemond was in fact the principal for the § 924(c) offense. The government’s first line of argument was that Rosemond did, in fact, fire the gun after the drug sale went awry. And the prosecution agreed not to prosecute the other participants in the planned sale in exchange for their testimony against Rosemond. Why, then, did the prosecution make an argument based on accomplice liability? Why not charge Rosemond as a principal and leave it at that?
3. Judge Learned Hand’s 1938 opinion in United States v. Peoni is often quoted by courts seeking to explain the requirements of accomplice liability. In Peoni, Judge Hand emphasized that complicity required purpose to promote the principal’s criminal conduct. The facts of Peoni are simple enough: Joseph Peoni sold counterfeit bills to a man named Regno; Regno later sold those bills to a man named Dorsey. After Dorsey was eventually arrested for possession of the counterfeit bills, the government sought to prosecute Peoni as an accomplice to Dorsey’s possession of counterfeit bills. After a review of several accounts of accomplice liability, Judge Hand emphasized that the accounts “have nothing whatever to do with the probability that the forbidden result would follow upon the accessory’s conduct; and that they all demand that he in some sort associate himself with the venture, that he participate in it as in something he wishes to bring about, that he seek by his action to make it succeed. All the words used—even the most colorless ‘abet’—carry an implication of purposive attitude toward it.” Peoni, 100 F.2d at 402. Judge Hand concluded that Peoni could not be convicted as an accomplice to Dorsey, since there was no evidence that Peoni specifically wanted Dorsey to possess the bills (or even knew of Dorsey’s existence).
4. Consider again the question raised in the first note above: what are the “elements” of accomplice liability? The Peoni opinion is often quoted as a formulation of the mental state required for accomplice liability – intent to promote or facilitate the commission of the offense. But Peoni can also help us think about other ingredients of complicity, including the “actus reus” of accomplice liability, or the conduct required to be an accomplice. Judge Hand’s language does suggest that some action is required; the accomplice must “participate” in the crime and “seek by his action to make it succeed” (emphasis added). Similarly, Rosemond says the accomplice must take “an affirmative act in furtherance of [the] offense.” The question has often arisen whether causation is an element of complicity: must the alleged accomplice’s actions have any identifiable effect on the principal’s crime? (Look again at the federal complicity statute reprinted before Rosemond. Subsection (b) mentions causation directly; subsection (a) does not.) In Peoni, Judge Hand thought it obvious that Joseph Peoni’s initial sale of counterfeit bills was “a step in the causal chain” that culminated in Dorsey’s offense. But according to Hand, this causal contribution was not itself sufficient to make Peoni an accomplice, given the absence of proof that Peoni intended to promote Dorsey’s crime. Indeed, Hand suggested that causation may simply be irrelevant: he reported that classic accounts of complicity have “nothing whatever to do with the probability that the forbidden result would follow upon the accessory’s conduct.” In general, courts require some evidence of “aid” to the principal, but they do not usually require proof that the accomplice’s aid actually had an effect on the principal’s conduct. For an overview and critique of complicity doctrine’s indifference to causation, see Joshua Dressler, Reforming Complicity Law: Trivial Assistance as a Lesser Offense, 5 Ohio St. J. Crim. L. 427 (2008).
5. The Rosemond Court quotes Judge Hand’s Peoni opinion approvingly, calling it “canonical,” but does Rosemond actually adopt Hand’s view of accomplice liability? Hand suggested that accomplice liability required “purposive attitude.” But the Supreme Court says that the intent requirement is “satisfied when a person actively participates in a criminal venture with full knowledge of the circumstances constituting the charged offense.” Is this difference between purpose (or intent) to promote the underlying crime and mere knowledge that it is taking place a meaningful difference that will change outcomes? Some jurisdictions do emphasize a difference between “knowing facilitation” of a crime, which may be codified as a separate, less severe offense, and actual accomplice liability, which requires purpose to promote the crime. See, e.g., Skinner v. Kentucky, 864 S.W.2d 290 (1993). Many other jurisdictions take the approach of the Rosemond Court and allow participation in a crime, plus knowledge that it is taking place, to suffice for accomplice liability.
6. Other states set the threshold for accomplice liability even lower, allowing convictions on the basis of complicity even in the absence of evidence that the defendant knew the crime in question was taking place. The “natural and probable consequences” doctrine, mentioned but neither endorsed nor condemned by the Rosemond Court in its footnote 7, holds that when a defendant is an accomplice to one offense, he may also be convicted as an accomplice to additional crimes if the additional crimes are “natural and probable consequences” of the crime that the defendant actually intended to promote. In one well-known case applying the doctrine, the defendant, Thomas Luparello, had recruited two men to track down his former girlfriend, Terri Cesak. Without Luparello present, the two men went to the home of Mark Martin, a friend of Terri and her husband, to ask him about Terri’s whereabouts. Instead of questioning Martin, the men shot and killed him. Luparello was convicted of first-degree murder even though there was no evidence that he had intended for Martin to be killed. The court held that the killing was a “natural and probable consequence” of a planned assault on Martin, and Luparello had intended to encourage the assault. People v. Luparello, 231 Cal. Rptr. 832 (1986). The natural and probable consequences doctrine is controversial, and the Rosemond Court purports not to take a position on it.
7. The statutory provision discussed in Rosemond, 18 U.S.C. § 924(c), is an important and frequently used federal law. It was examined at the end of Chapter Seven, but a few reminders may be helpful here. Section 924(c) defines an independent federal offense of using a firearm during a drug trafficking crime or a “crime of violence.” The current version of § 924(c) imposes a mandatory minimum sentence of 5, 7, or 10 years depending on whether the gun is merely “used” or “carried” (5 years), “brandished” (7 years), or actually discharged (10 years). The extra years of prison imposed by § 924(c) really are extra, in that they run consecutively to whatever other sentence is imposed for the underlying drug trafficking offense or “crime of violence”. As you saw in Angelos in Chapter Seven, the prosecution can often increase a federal sentence dramatically by charging multiple counts of § 924(c). Critics of gun enhancement charges point out that they appear to be used disproportionately often against Black defendants and other defendants of color, helping to create and maintain racial disparities in the U.S. prison population. “[D]efining a crime is a political act, [and so] is the decision about whether, how, and against whom to charge a crime, and as a practical matter, it is likely a more significant one. And the racially disparate federal charging decisions in gun cases … have been pursued by Attorneys General and U.S. Attorneys from both ends of the political spectrum.” David E. Patton, Criminal Justice Reform and Guns: The Irresistible Movement Meets the Immovable Object, 69 Emory L.J. 1011, 1025 (2020).
8. Most jurisdictions define complicity in general terms that apply across all different types of offenses. In other words, complicity principles are trans-substantive, like the attempt and solicitation doctrines examined in the previous chapter. But consider whether some offenses are less appropriately punished through accomplice liability than others. The fact that § 924(c) mandates different sentencing depending on whether a gun is “used,” “brandished,” or “discharged” suggests that Congress wanted to allocate punishment based on the specific way the defendant used the gun. Once we allow accomplice liability for § 924(c), aren’t Congress’s allocations disrupted? If courts do recognize accomplice liability for § 924(c), should they be more demanding about the required mental state? Given that the § 924(c) charges in this case alleged not simply the use or brandishment but the discharge of the gun, should the Rosemond Court have required knowledge that a gun would be discharged, not merely knowledge that one participant would carry a gun?
9. Justice Alito’s dissent relies on two distinctions that you should understand: a distinction between an affirmative defense and a failure-of-proof argument, and a distinction between intent and motive. A failure of proof argument is a defense claim that the prosecution has not established the necessary elements of the offense beyond a reasonable doubt. Affirmative defenses, which you will study in more detail in the next chapter, do not contest the elements of the offense, but rather identify some independent consideration as a reason not to convict the defendant. If a defendant participates in an armed drug transaction out of fear for his own safety, he could potentially benefit from the affirmative defenses of duress or necessity. But, Justice Alito would argue, such a person can still be an accomplice to a drug trafficking crime. Another way that Justice Alito might put the point: accomplice liability requires intent to promote the principal’s criminal conduct, or at least knowledge that the conduct will occur; it does not ask us to inquire about motives, or the reasons that the defendant intends the conduct to occur.

Question Set 9-1

N.Y. Penal Law § 125.25. Murder in the second degree

A person is guilty of murder in the second degree when:

1. With intent to cause the death of another person, he causes the death of such person or of a third person… [or]
2. Under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person…

N.Y. Penal Law § 20.00. Criminal liability for the conduct of another

When one person engages in conduct which constitutes an offense, another person is criminally liable for such conduct when, acting with the mental culpability required for the commission thereof, he solicits, requests, commands, importunes, or intentionally aids such person to engage in such conduct.

The PEOPLE of the State of New York, Respondent

v.

Jermaine RUSSELL, Appellant

The PEOPLE of the State of New York, Respondent

v.

Khary BEKKA, Appellant

The PEOPLE of the State of New York, Respondent

v.

Shamel BURROUGHS, Appellant

Court of Appeals of New York
91 N.Y.2d 280

Feb. 11, 1998

KAYE, Chief Judge.

Shortly before noon on December 17, 1992, Shamel Burroughs engaged in a gun battle with Jermaine Russell and Khary Bekka on Centre Mall of the Red Hook Housing Project in Brooklyn. During the course of the battle, Patrick Daly, a public school principal looking for a child who had left school, was fatally wounded by a single stray nine millimeter bullet that struck him in the chest. Burroughs, Bekka and Russell—defendants on this appeal—were all charged with second degree murder.

Two separate juries, one for Burroughs and another for Russell and Bekka, were impaneled contemporaneously and heard the evidence presented at trial. Although ballistics tests were inconclusive in determining which defendant actually fired the bullet that killed Daly, the theory of the prosecution was that each of them acted with the mental culpability required for commission of the crime, and that each “intentionally aided” the defendant who fired the fatal shot (Penal Law § 20.00). Both juries convicted defendants of second degree, depraved indifference murder (Penal Law § 125.25[2]).

On appeal, each defendant challenges the sufficiency of the evidence. Because the evidence, viewed in the light most favorable to the prosecution, could have led a rational trier of fact to find, beyond a reasonable doubt, that each defendant was guilty of depraved indifference murder as charged, we affirm the order of the Appellate Division sustaining all three convictions.

A depraved indifference murder conviction requires proof that defendant, under circumstances evincing a depraved indifference to human life, recklessly engaged in conduct creating a grave risk of death to another person, and thereby caused the death of another person. Reckless conduct requires awareness and conscious disregard of a substantial and unjustifiable risk that such result will occur or that such circumstance exists. “The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.” To constitute “depraved indifference,” conduct must be “so wanton, so deficient in a moral sense of concern, so devoid of regard of the life or lives of others, and so blameworthy as to warrant the same criminal liability as that which the law imposes upon a person who intentionally causes the death of another.”

Although defendants underscore that only one bullet killed Patrick Daly and it is uncertain which of them fired that bullet, the prosecution was not required to prove which defendant fired the fatal shot when the evidence was sufficient to establish that each defendant acted with the mental culpability required for the commission of depraved indifference murder, and each defendant “intentionally aided” the defendant who fired the fatal shot. Defendants urge, however, that the evidence adduced at trial did not support a finding that they—as adversaries in a deadly gun battle—shared the “community of purpose” necessary for accomplice liability. We disagree. The fact that defendants set out to injure or kill one another does not rationally preclude a finding that they intentionally aided each other to engage in the mutual combat that caused Daly’s death.

People v. Abbott (N.Y. 1981), provides an apt illustration. That case involved two defendants—Abbott and Moon—who were engaged in a “drag race” on a residential street when Abbott lost control and smashed into another automobile, killing the driver and two passengers. Both defendants were convicted of criminally negligent homicide, but Moon asserted that he was not responsible for Abbott’s actions and that his conviction should be set aside. Rejecting this argument, the court found that, although Moon did not strike the victim’s car and was Abbott’s adversary in a competitive race, he intentionally participated with Abbott in an inherently dangerous and unlawful activity and therefore shared Abbott’s culpability. Moon’s “conduct made the race possible” in the first place, as there would not have been a race had Moon not “accepted Abbott’s challenge” …

In the present case, the jurors were instructed:

“If you find that the People have proven beyond a reasonable doubt that [defendants] took up each other’s challenge, shared in the venture and unjustifiably, voluntarily and jointly created a zone of danger, then each is responsible for his own acts and the acts of the others * * * [and] it makes no difference whether it was a bullet from Mr. Bekka’s gun, Mr. Russell’s gun or Mr. Burrough’s gun that penetrated Mr. Daly and caused his death” (emphasis added).

The trial evidence was sufficient to support each jury’s findings in accordance with this charge. Although Burroughs was shooting at Russell and Bekka, and Russell and Bekka were shooting at Burroughs, there was adequate proof to justify the finding that the three defendants tacitly agreed to engage in the gun battle that placed the life of any innocent bystander at grave risk and ultimately killed Daly. Indeed, unlike an unanticipated ambush or spontaneous attack that might have taken defendants by surprise, the gunfight in this case only began after defendants acknowledged and accepted each others’ challenge to engage in a deadly battle on a public concourse.

As defendants approached one another on Centre Mall, a grassy open area that serves as a thoroughfare for the 7,000 residents of the 28-building housing complex, it was evident that an encounter between them would be violent and would endanger others. There was trial evidence that when Burroughs first saw Bekka and Russell walking toward him, he immediately recognized the danger, instructing the two female friends accompanying him, one of them pregnant, to “run” or “go.” They too plainly sensed the danger because, without hesitation, they turned and ran.

Despite the palpable threat, Burroughs, armed with a nine millimeter Glock, did not flee with his friends. Rather, he continued toward Russell and Bekka, tacitly accepting their invitation and issuing one of his own. In turn, Russell and Bekka, also armed with automatic weapons, continued walking toward Burroughs, challenging him and accepting his challenge. As they drew nearer, defendants each began firing their high-powered guns, capable of shooting bullets at an average rate of 1,100 feet per second, across the pedestrian thoroughfare. The dozen or more people in the area, as well as those with windows overlooking the Mall, were put at grave risk as defendants unleashed a hail of bullets. Witnesses testified that the battle sounded “like a war” and that anywhere from nine to 20 shots were fired.

Although Centre Mall is surrounded by buildings affording refuge, defendants chose instead to run through the area aggressively pursuing one another. Indeed, even after exchanging an initial volley of shots, they continued to wage their private war, issuing taunts and ducking back and forth behind buildings and trees, seeking tactical advantage. As a result of defendants’ deadly gun battle, Patrick Daly was shot in the chest and killed almost instantly.

At trial, all three defendants sought to exonerate themselves by arguing self-defense—each claiming that their opponent shot first and they were justified in firing back. Under New York law, however, a person who reasonably believes that another is about to use deadly physical force is not free to reciprocate with “deadly physical force if he knows that he can with complete safety as to himself and others avoid the necessity of so doing by retreating”… Here, there was evidence that defendants did not avail themselves of opportunities for safe retreat, choosing instead to use deadly force against each other. As such, there was adequate support for each jury’s rejection of defendants’ justification defense.

The evidence adduced at trial was also sufficient for the jury to determine that all three defendants acted with the mental culpability required for depraved indifference murder, and that they intentionally aided and encouraged each other to create the lethal crossfire that caused the death of Patrick Daly.

To the extent defendants’ remaining arguments are preserved, we conclude that they are without merit.

Accordingly, in each case the order of the Appellate Division should be affirmed.

Notes and questions on People v. Russell

1. No one argued that any of three defendants intended to kill Patrick Daly. That wouldn’t matter for a second-degree murder charge under New York law, since a person can be guilty of second-degree murder by engaging in reckless conduct that causes death. But does the lack of intent to kill this victim matter to an accomplice liability argument? Why or why not?
2. In this case, accomplice liability is used to address an evidentiary difficulty related to causation: the prosecution could not prove that any specific one of the three defendants caused Patrick Daly’s death. For each defendant, the prosecution argued that either the defendant actually caused Daly’s death (by firing the fatal bullet) or the defendant was an accomplice to the person who caused Daly’s death. Notice that the previous case also involved the use of accomplice liability to get around a deficiency in the evidence – the prosecution there believed, but could not adequately prove, that Rosemond himself had discharged the gun. To get around this difficulty, the prosecution offered two alternative theories: either Rosemond fired the weapon himself, or he was an accomplice to the person who did fire the weapon.
3. Look again at the text of New York’s complicity statute, reprinted just before the Russell opinion. Do the New York state law requirements for complicity differ from the federal standards (themselves supposedly derived from common law) discussed in Rosemond? In particular, does accomplice liability in New York have the same mental state requirements as accomplice liability in the federal system?
4. In thinking about the previous question, you should have noticed that New York does not follow the requirement of “true purpose” to facilitate the crime that has been endorsed by federal courts. Instead, New York Penal Law 20.00 can be understood as following, and extending still further, an expansion of accomplice liability that began with the Model Penal Code. Here is key language from the Model Penal Code:

5. In at least some circumstances (offenses involving a result element), the Model Penal Code dispenses with the traditional common law requirement that the accomplice must intend to promote the specific crime that the principal commits. Instead, the MPC allows accomplice liability if the accomplice intends to promote the principal’s conduct and has “the kind of culpability, if any, with respect to [the] result that is sufficient for the commission of the offense” (emphasis added). To make this concrete, consider a set of facts similar to those you see in Russell: one person encourages another to shoot in a crowded area, and someone is hit by a bullet. The person who fired the gun did not intend to kill anyone, but he acted recklessly, and may be guilty of reckless homicide. Is the person who encouraged the reckless shooting also guilty of reckless homicide, as an accomplice? The MPC would allow accomplice liability in this situation, even though the accomplice did not intend to promote a homicide. The New York statute expands accomplice liability even more broadly than the Model Penal Code, since it dispenses with a “true purpose” requirement for all crimes and not merely those that involve a result element.
6. What about the conduct required of an accomplice under New York law? As we have seen in other contexts, conduct requirements and mental state requirements are closely intertwined in this statute. Penal Law § 20.00 imposes accomplice liability on one who “solicits, requests, commands, importunes, or intentionally aids” a principal to engage in criminal conduct. The prosecution in Russell argued that the defendants had “intentionally aided” one another in reckless conduct. The claim was not that any of the defendants had intended to kill the victim, Patrick Daly, but they had intended to aid one another in engaging in “mutual combat.”
7. The terms “accomplice” and “complicity” come from Latin roots that mean “folded together” or “allied.” Accomplice liability is often said to require “action in concert” or a “community of purpose.” From that perspective, People v. Russell is an unusual use of accomplice liability: Shamel Burroughs was shooting at, and presumably trying to kill, Jermaine Russell and Khary Bekka, and Russell and Bekka were shooting at Burroughs. The prosecution argued, successfully, that all three men were accomplices to one another. What is the argument for treating enemies as accomplices here? Suppose the deadly bullet had struck Russell, not an uninvolved bystander, and Russell was hurt but not killed. Suppose then Burroughs were charged with attempted murder (of Russell). Should Russell also be charged with attempting to murder himself, on the theory that he was an accomplice to Burroughs? Consider again the precise mental state and conduct requirements of the New York complicity statute.
8. Patrick Daly, the high school principal who was shot, was a beloved community figure, and the teenage defendants were his former students. Daly’s death shocked, and then galvanized, the Red Hook neighborhood in Brooklyn. For an account of the shooting and immediate aftermath, see Robert D. McFadden, Brooklyn Principal Shot to Death While Looking for Missing Pupil, N.Y. Times (Dec. 18, 1992). For details on how the incident “indelibly transformed” Red Hook and helped lead to the development of the Red Hook Community Justice Center, see Alan Neuhauser, Days After Newtown, City Also Remembers Principal Killed 20 Years Ago, dnainfo.com (Dec. 17, 2012).
9. Russell and Bekka were apparently mortal enemies of Burroughs, and vice versa. All three defendants were young Black men. Might this fact have made it easier to see the three defendants as accomplices of one another? For one defendant’s reflections on the case, and his own later work as a Quaker advocate for restorative justice, see https://www.afsc.org/blogs/acting-in-faith/restorative-justice-quaker-perspective-khary-bekka.
10. As the court notes near the end of its opinion, the defendants tried unsuccessfully to raise claims of self-defense. We’ll discuss self-defense doctrine, and retreat requirements, in more detail in Chapter Ten, and will reconsider the facts of this case at that point.

Conspiracy

18 U.S.C. § 371. Conspiracy to commit offense or to defraud the United States

If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.

If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor.

49 U.S.C. § 32703. Preventing tampering

A person may not–

(1) advertise for sale, sell, use, install, or have installed, a device that makes an odometer of a motor vehicle register a mileage different from the mileage the vehicle was driven, as registered by the odometer within the designed tolerance of the manufacturer of the odometer;

(2) disconnect, reset, alter, or have disconnected, reset, or altered, an odometer of a motor vehicle intending to change the mileage registered by the odometer;

(3) with intent to defraud, operate a motor vehicle on a street, road, or highway if the person knows that the odometer of the vehicle is disconnected or not operating; or

(4) conspire to violate this section…

18 U.S.C. § 1341. Frauds and swindles [Mail fraud]

Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, or to sell, dispose of, loan, exchange, alter, give away, distribute, supply, or furnish or procure for unlawful use any counterfeit or spurious coin, obligation, security, or other article, or anything represented to be or intimated or held out to be such counterfeit or spurious article, for the purpose of executing such scheme or artifice or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service [or any private or commercial interstate carrier], or takes or receives therefrom, any such matter or thing, or knowingly causes to be delivered by mail or such carrier according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, any such matter or thing, shall be fined under this title or imprisoned not more than 20 years, or both.

UNITED STATES of America, Plaintiff–Appellee

v.

Michael David HUBBARD, Defendant–Appellant

UNITED STATES of America, Plaintiff–Appellee

v.

James Ray LYON, Defendant–Appellant

U.S. Court of Appeals, Ninth Circuit
96 F.3d 1223

Decided Sept. 23, 1996

TROTT, Circuit Judge:

Michael Hubbard and James Lyon were convicted of conspiracy to commit mail fraud related to an elaborate scheme of odometer tampering. They appeal the district court’s denial of their Motion for Judgment of Acquittal, arguing … that there was insufficient evidence to support a charge of conspiracy…. We reject Appellants’ arguments and affirm the convictions.

Michael Hubbard, conducting business as Discount Rent–A–Car (Discount) and as AAA Rent A Car, was in the business of purchasing and selling used motor vehicles. He purchased vehicles that had previously been rental cars, and when he purchased them they generally had between 50,000 and 80,000 miles on them. On some of the vehicles Hubbard purchased, he rolled back the odometers. Then, Hubbard applied to the Departments of Motor Vehicles in California and Texas for duplicate titles, claiming that the original titles to the purchased rental cars had been lost. The duplicate titles came back with a blank mileage figure, and the rolled-back, low-mileage figure was inserted on the duplicate title. The cars that are the subject of this case were then sold by Hubbard and his employee James Lyon to Arizona Checker Sales, which converted the used cars into taxicabs. Hubbard and Lyon represented to Arizona Checker Sales that the low-mileage figures on the odometers were accurate. Once Arizona Checker Sales had possession of the vehicles and their titles, they had to obtain new Arizona titles. The State of Arizona mailed the new titles back to Arizona Checker Sales.

In February 1995, Hubbard and Lyon were tried for conspiracy to engage in odometer tampering and mail fraud. At the conclusion of the Government’s case, Hubbard and Lyon moved for judgment of acquittal. The district court denied the motion as to the conspiracy to commit mail fraud, but granted the motion as to the charge of conspiracy to engage in odometer tampering. The court found that the evidence did not show conspiracy to spin odometers, reasoning that the odometer tampering crime was completed once the odometer was altered, and there was no evidence that Lyon had actually altered an odometer. The court, however, found that Lyon’s role in keeping records and negotiating with purchasers could support the charge of conspiracy to commit mail fraud.

After eight days of trial, a jury convicted Hubbard and Lyon on the count of conspiracy to commit mail fraud…

To prove a conspiracy, the Government must show an agreement between two or more persons to accomplish an illegal objective, coupled with one or more overt acts in furtherance of the illegal purpose. “[I]nferences of the existence of such an agreement may be drawn ‘if there be concert of action, all the parties working together understandingly, with a single design for the accomplishment of a common purpose.’” United States v. Melchor–Lopez (9th Cir.1980). “The agreement need not be explicit, but may be inferred from circumstantial evidence.” Once evidence of a conspiracy is established, only a slight connection between the defendant and the conspiracy is necessary to convict the defendant of knowing participation in the conspiracy. However, mere association with members of a conspiracy or knowledge of the conspiracy, “without an intention and agreement to accomplish a specific illegal objective, is not sufficient to make one a conspirator.” Appellants do not attack the existence of fraudulent behavior. Instead, they argue that there is no evidence that Hubbard and Lyon had an agreement to act fraudulently.

We find, however, that the evidence presented at trial shows otherwise. Hubbard’s role in the fraud is supported by the fact that he was running the company, negotiating the purchase and sale of vehicles, and picking up and delivering vehicles. One witness, a former employee of Discount, testified that she specifically saw him inside of one vehicle with the dashboard panel removed, adjusting the odometer with a screw driver. Also, Hubbard signed several documents related to the purchases and sales of the vehicles. For example, he applied for the duplicate titles, claiming that the originals were lost. During the execution of a search warrant at Discount, the titles purportedly lost were found on Hubbard’s desk. Further evidence of Hubbard’s intent and knowledge of the crime came from his prior conviction in June, 1990, when he pleaded guilty to two felony counts for odometer-fraud related crimes.

Appellants argue that even if there was evidence that Hubbard defrauded purchasers, the evidence does not show that Lyon knew that the mileage he represented to buyers was not accurate. However, there is sufficient evidence supporting Lyon’s knowledge of and participation in the fraudulent scheme. Lyon spoke to purchasers of Discount’s vehicles regarding the cost and mileage of the vehicles. For example, John Holshouser, a representative from Arizona Checker Sales, testified that he had spoken to Lyon 15–20 times over the phone about the cars that were for sale. Lyon also faxed to Holshouser documents listing vehicle prices and mileage. Holshouser specifically testified that Lyon had represented to him that the mileage figures were actual mileage figures. Holshouser also testified that he relied on mileage figures in deciding on the price he would pay for the car.

Lyon handled paperwork associated with both the purchase and sale of used cars. He personally maintained an inventory of the vehicles on a computer, inputting data about the mileage of the vehicles. Reports with vehicle information containing both high and low mileage figures for five vehicles were printed from the computer data kept by Lyon. A handwriting expert testified that Lyon had written at least some of the mileage figures on vehicle documents. For example, in relation to one vehicle, the expert testified that Lyon had written both: 1) a high mileage figure of 79,530 miles on a Dealer Jacket when Discount purchased the vehicle, and 2) the low mileage figure of 51,784 miles on the duplicate Texas Certificate of Title, which Discount provided to Arizona Checker Sales and which Arizona Checker Sales provided to the Arizona Department of Transportation. Also, in a fax to Holshouser, Lyon represented that the mileage on another vehicle was 30,100 miles, whereas the Dealer Jacket for the same vehicle states in Lyon’s writing that the car has 70,550 miles.

Viewing the evidence in the light most favorable to the Government, the evidence shows that Hubbard purchased the vehicles with high mileage, rolled back the odometers, and then Hubbard and Lyon offered them for sale at a lower mileage. Lyon represented to Holshouser that the low mileage figures were accurate, and certified those low-mileage figures on title documents. Lyon input vehicle information into the company computer, and was in charge of maintaining the vehicle inventory. Hubbard and Lyon had to coordinate the new, rolled-back mileage figures to be consistent on vehicle price lists, on the duplicate titles, and on odometer disclosure statements. This scheme required their interaction and cooperation. Thus, a rational jury could have found a “concert of action, all the parties working together understandingly, with a single design for the accomplishment of a common purpose,” which is sufficient to establish evidence of an agreement.

Accordingly, we conclude that a rational jury could have found that Appellants had an agreement to engage in this fraudulent scheme, and sufficient evidence supports the convictions for conspiracy….

… Defendants [also] argue that the district court’s grant of the motion for judgment of acquittal for the charge of conspiracy to engage in odometer tampering and the denial of the motion for the charge of conspiracy to engage in mail fraud were inconsistent. In other words, they contend that they could not have conspired to commit mail fraud without conspiring to roll-back odometers.

This argument has no merit. The district court interpreted the conspiracy charge related to odometer tampering in a narrow sense, finding that the crime of odometer tampering ended as soon as the odometers were rolled-back. The court found that there was insufficient evidence to support a finding that Lyon had tampered with the odometers. This was distinct from the charge of mail fraud. As explained above, there was sufficient evidence to support a finding that Hubbard and Lyon engaged in a fraudulent scheme to sell cars with the rolled-back odometers to Arizona Checker Sales at inflated prices. Both Hubbard and Lyon performed integral parts of this scheme by signing the relevant documents, inputting the rolled-back odometer figures on new titles, and representing the low-mileage figures as actual mileage to Arizona Checker Sales.

Therefore, although there may not have been evidence that Lyon himself altered the odometers, the conspiracy charge for mail fraud included acts beyond the actual alteration of the odometer. This additional fraudulent behavior—i.e., misrepresenting mileage figures and selling vehicles to purchasers who would have to acquire new titles—provided the basis for the charge of conspiracy to commit mail fraud. Thus, there was nothing inconsistent in the district court’s partial judgment of acquittal.

Notes and questions on U.S. v. Hubbard

1. This case introduces you to a new inchoate offense: conspiracy. Like the inchoate offenses discussed in the previous chapter, attempt and solicitation, a conspiracy charge should specify the underlying offense that the alleged co-conspirators agreed to commit. (A defendant is not charged with attempt or solicitation alone, remember, but with “attempted robbery” or “solicitation to murder” and so forth.) Here, Hubbard and Lyon were charged with two different conspiracies: a conspiracy to engage in odometer tampering, and separately, a conspiracy to commit mail fraud. After the trial, the district court granted a motion for judgment of acquittal with respect to the conspiracy to commit odometer tampering fraud. What evidence was missing to support the charge of conspiracy to commit odometer tampering? It may help to ask, what are the elements of a conspiracy to commit odometer tampering? The next note can help you identify those elements.
2. The federal conspiracy statute used in this case, 18 U.S.C. § 371, is like many of the attempt statutes we saw in Chapter Eight: it uses the term “conspire,” as those statutes used the term “attempt,” without defining it. To define the term more precisely, the Ninth Circuit draws from caselaw, noting that a conspiracy charge requires the prosecution to show “an agreement between two or more persons to accomplish an illegal objective, coupled with one or more overt acts in furtherance of the illegal purpose.” Are there separate mental state and conduct elements here, or does the concept of an agreement collapse mental state and action?
3. In its requirement of an agreement “between two or more persons,” the federal statute takes what is often called the bilateral view of conspiracy: a conspiracy requires at least two participants. A bilateral definition of conspiracy can create obstacles in cases in which one of the supposed conspirators is not really agreeing to the crime—perhaps because he is an undercover agent working a sting operation, for example. Some jurisdictions adopt instead a “unilateral” view of conspiracy, in which true agreement between two guilty parties is not necessary. Here’s one court’s explanation of the distinction:

Under a unilateral formulation, the crime of conspiracy is committed when a person agrees to proceed in a prohibited manner; under a bilateral formulation, the crime of conspiracy is committed when two or more persons agree to proceed in such manner. Under either approach, the agreement is all-important to conspiracy. Under the unilateral approach, as distinguished from the bilateral approach, the trier-of-fact assesses the subjective individual behavior of a defendant, rendering irrelevant in determining criminal liability the conviction, acquittal, irresponsibility, or immunity of other co-conspirators. Under the traditional bilateral approach, there must be at least two ‘guilty’ persons, two persons who have agreed.”

State v. Kihnel, 488 So.2d 1288 (La. 1986). Again, the federal statute used to prosecute Hubbard is a bilateral statute. For an example of unilateral language, see the Model Penal Code definition of conspiracy, discussed after the next case in this chapter.

4. As emphasized in the court’s excerpt above, “the agreement is all-important” to a conspiracy charge whether the jurisdiction adopts a bilateral or unilateral approach. Many courts describe the agreement as the “actus reus” of conspiracy, but is an agreement an act? Persons can formalize an agreement through conduct—the signing of a contract, for example—but conspirators rarely put anything in writing or otherwise take action to make their agreement explicit. Conspiratorial agreements are often “inferred from circumstantial evidence” rather than proven by direct evidence. Just as attempt doctrine struggles to distinguish “mere preparation” from actual “perpetration” of an attempt, conspiracy doctrine often struggles to distinguish “mere association” from an actual agreement.
5. Which pieces of evidence establish an agreement in this case? What, precisely, did Hubbard and Lyon agree to do? Or put differently, what crime did they conspire to commit? Again, the district court entered a judgment of acquittal on one conspiracy charge, but not the other. What explains the different outcomes?
6. Why punish conspiracy, Part One. In a legal system that includes liability for criminal attempts, as discussed in the previous chapter, and liability for accomplices, as discussed in the first part of this chapter, what does conspiracy doctrine add? One commonly stated justification for conspiracy offenses is the claim that group efforts to commit crimes are especially dangerous and socially harmful, so much so that the very agreement to commit a crime is worthy of punishment even in the absence of the kind of preparatory activity that may be required by attempt doctrine. For one recent statement of this view, consider People v. Martin, 26 Cal. App. 5^th 825 (Ct. App. Ca. 2018). Amaya Monique Martin and two other women had been apprehended after shoplifting cosmetics from a Walmart and a grocery store. Martin was convicted of conspiracy to commit petty theft, based in part on her own statement that she had been “recruited” to steal cosmetics for someone who planned to send them to Latin America. California law classifies shoplifting as a misdemeanor, but conspiracy to commit shoplifting (or conspiracy to commit petty theft) is a felony. Martin sought to have her felony conviction reduced to a misdemeanor shoplifting conviction. The court refused, emphasizing the unique dangers of a conspiracy:

The courts have long recognized the enhanced dangers of a conspiracy. Almost a hundred years ago, [this court] remarked: “[A] group of evil minds planning and giving support to the commission of crime is more likely to be a menace to society than where one individual alone sets out to violate the law.” “The theory … is that collaborative criminal activities pose a greater potential threat to the public than individual acts. ‘Criminal liability for conspiracy, separate from and in addition to that imposed for the substantive offense which the conspirators agree to commit, has been justified by a “group danger” rationale. The division of labor inherent in group association is seen to encourage the selection of more elaborate and ambitious goals and to increase the likelihood that the scheme will be successful. Moreover, the moral support of the group is seen as strengthening the perseverance of each member of the conspiracy, thereby acting to discourage any reevaluation of the decision to commit the offense which a single offender might undertake. And even if a single conspirator reconsiders and contemplates stopping the wheels which have been set in motion to attain the object of the conspiracy, a return to the status quo will be much more difficult since it will entail persuasion of the other conspirators. [Citations.]’ [Citations.]”

The instant case aptly demonstrates the enhanced dangers of a conspiracy. Respondent was not stealing cosmetics for her personal use. She was acting as part of an international conspiracy to steal cosmetics and transport them to Latin America, where they would be sold. There were no limits on her incentive to steal. The more cosmetics she stole, the more money she was guaranteed to receive. When she entered the Walmart and Albertson’s stores, she was accompanied by two coconspirators. They could steal considerably more than a single person acting alone. The presence of three coconspirators supporting each other decreased the chance that one of them would get “cold feet” and not go through with the theft. Moreover, one of them could act as a lookout to avoid detection by security personnel, thus increasing the likelihood that their criminal scheme would succeed.

Martin, 26 Cal. App. 5^th 825, 836-37. One recent article challenges the claim that conspiracies are uniquely dangerous, suggesting that in some cases, expanding the number of people involved in planned criminal activity make the planned crime less likely to actually occur. The article thus proposes that legal definitions of conspiracy should be revised to require prosecutors to show proof of actual dangerousness. See Steven R. Morrison, Requiring Proof of Conspiratorial Dangerousness, 88 Tul. L. Rev. 483 (2014).

7. Why conspiracy, Part Two. Leaving aside principled arguments about whether conspiratorial agreements are particularly dangerous, one can identify some concrete practical implications of conspiracy law that can make conspiracy charges especially attractive to prosecutors. In some jurisdictions, including the federal system, conspiracy is different from other inchoate offenses in that it does not “merge” into the completed offense. Attempt does merge, in this sense: if a defendant attempts to manufacture a controlled substance, and then is eventually successful, the defendant can’t be convicted of both attempted manufacture and manufacture itself. The attempted manufacture is said to “merge” into the completed offense. But a conspiracy charge doesn’t merge, under federal law. A defendant who conspires to manufacture a controlled substance, and then actually does manufacture that substance, can be convicted of both conspiracy to manufacture and manufacture itself. Thus, conspiracy charges often add to a defendant’s overall criminal liability.

   Additionally, federal conspiracy law embraces a concept known as Pinkerton liability, named after Pinkerton v. United States, 328 U.S. 640 (1946), and many states have adopted similar doctrines. Pinkerton liability is a form of derivative liability, like accomplice liability; it is a way to hold one defendant liable for the conduct of someone else. The case that gave the doctrine its name involved Walter and Daniel Pinkerton, brothers who transported and sold liquor in a bootlegging business that violated existing state regulations. At some point, Daniel was convicted and jailed for liquor-related offenses. While Daniel was in jail, Walter continued to run the bootlegging business, and (unsurprisingly) did not report his illegal profits as taxable income. Federal authorities later prosecuted both Walter and Daniel for conspiracy to commit tax evasion and for the underlying tax evasion offenses. Some of the tax evasion counts were based on Walter’s conduct during the time that Daniel was in jail. Daniel argued that he couldn’t be punished for acts that Walter committed while he (Daniel) was in jail. But the Supreme Court held that conspiracy was a continuing offense, and each conspirator could be held liable for any and all substantive crimes committed by any member of the conspiracy, so long as the crime was committed “in furtherance of the conspiracy.” If the brothers had a conspiratorial agreement to violate liquor laws, and if each act of tax evasion was done in furtherance of the overall conspiracy, then each brother could be held liable for the other’s crimes.

   Pinkerton liability thus expands the number of people who can be held liable for any one crime committed “in furtherance” of a conspiracy, and it expands the number of crimes that can be charged against each member of a conspiracy. In a large and complex conspiracy, the prospect of Pinkerton liability can create a strong incentive for individual members of the conspiracy to cooperate with the government in the hopes of avoiding punishment for all substantive crimes committed by any of the co-conspirators. Pinkerton liability was widely criticized, and not widely used, until the 1970s, when federal prosecutors embraced it as a weapon in the war on drugs.

Question Set 9-2

Withdrawal or Abandonment of a Conspiracy

Indiana Code § 35-41-5-2. Conspiracy

(a) A person conspires to commit a felony when, with intent to commit the felony, the person agrees with another person to commit the felony. A conspiracy to commit a felony is a felony of the same level as the underlying felony. However, a conspiracy to commit murder is:

(1) a Level 2 felony if the conspiracy does not result in the death of a person; and

(2) a Level 1 felony if the conspiracy results in the death of another person.

(b) The state must allege and prove that either the person or the person with whom he or she agreed performed an overt act in furtherance of the agreement.

(c) It is no defense that the person with whom the accused person is alleged to have conspired:

(1) has not been prosecuted;

(2) has not been convicted;

(3) has been acquitted;

(4) has been convicted of a different crime;

(5) cannot be prosecuted for any reason; or

(6) lacked the capacity to commit the crime.

Indiana Code § 35-42-1-1. Murder

A person who … knowingly or intentionally kills another human being … commits murder, a felony.

Indiana Code § 35-42-3-3. Confinement

A person who knowingly or intentionally confines another person without the other person’s consent commits criminal confinement….

Curtis Lee WEIDA, Appellant–Defendant

v.

STATE of Indiana, Appellee–Plaintiff

Court of Appeals of Indiana
778 N.E.2d 843

Nov. 21, 2002

MATHIAS, Judge.

Curtis Weida was convicted of Conspiracy to Commit Murder and Confinement… The trial court vacated the Confinement conviction on double jeopardy grounds, but sentenced Weida to fifty years executed for the Conspiracy to Commit Murder conviction. Weida appeals and raises two issues, which we restate as:

I. Whether the evidence was sufficient to support Weida’s conviction for Conspiracy to Commit Murder; and,

II. Whether the trial court abused its discretion when it refused to give Weida’s tendered jury instruction on withdrawal from conspiracy.

We affirm in part, reverse in part and remand for a new trial on the Conspiracy to Commit Murder count.

The facts most favorable to the verdict reveal that on more than one occasion prior to June 13, 2000, Weida told Kristen Gross (“Gross”), a young woman residing in his home, that he had fantasies that involved kidnapping a young boy and performing sexual acts on him…. On June 13, 2000, Weida asked Gross to go for a drive with him. During the drive, Weida informed Gross that they were driving around “to look for a kid.” Weida and Gross observed several young boys, and Weida made comments about them…

Eventually, Weida and Gross arrived in Kokomo, Indiana. While driving through a neighborhood, Weida and Gross observed a young boy, I.P., standing on the side of the road. Upon seeing I.P., Weida asked Gross, “[w]hat do you think,” to which Gross replied, “[t]oo young.” Weida then drove around the block and stopped the car near I.P. Gross asked Weida, “what do you want me to do, what’s going on, what are you going to do?” Weida responded, “[w]ell, you’re going to get out of the car and ask for directions to the mall or something.”

Gross got out of the car and asked I.P. how to get to the mall. As he began to tell her, Gross told him to tell Weida. As I.P. moved closer to the car to give Weida directions, Weida pushed up the front passenger seat and Gross shoved I.P. into the back of the car. Weida then gave Gross, who was in the backseat with I.P., a plastic “band” to tie I.P.’s wrists together, which she did. Before they had spotted I.P., Weida had shown the band to Gross and told her that she could use it to tie up a boy’s hands.

As they were driving out of Kokomo, Gross attempted to convince Weida that they should let I.P. go because she did not want Weida to kill I.P. Gross then made a failed attempt to burn the plastic band off of I.P.’s wrists. Weida told her that “if [they] couldn’t get him loose there was no option.” Gross’s understanding of that statement was that if she could not remove the band from I.P.’s wrists, Weida would kill him. Weida eventually stopped at a gas station and borrowed a pair of scissors that were used to cut the band around I.P.’s wrists. Weida then told I.P. to stick out his hands, put a gun in them, and stated “[t]hat’s what’s going to happen to you if you tell.” Weida drove back to Kokomo, and before they dropped I.P. off, Weida stated, “[n]ow you remember what will happen, we know where you live.”

On September 18, 2000, Weida was charged with Conspiracy to Commit Murder, a Class A felony, and Confinement, as a Class B felony. On September 17, 2001, a jury trial began, and the jury found Weida guilty of both charges. At the sentencing hearing, the trial court vacated the Confinement conviction on double jeopardy grounds, but sentenced Weida to fifty years executed for the Conspiracy to Commit Murder conviction. Weida now appeals….

… To convict Weida of Conspiracy to Commit Murder, the State had to prove that while having the intent to commit murder, Weida and Gross entered into an agreement to commit murder, and either Weida or Gross performed an overt act in furtherance of the agreement. However, the State was not required to prove that murder was actually committed or even attempted.^[5] Weida argues that the evidence did not establish that he intended to kill I.P. or that there was an agreement between himself and Gross to do so.

The State is not required to establish the existence of a formal express agreement to prove a conspiracy. “It is sufficient if the minds of the parties meet understandingly to bring about an intelligent and deliberate agreement to commit the offense.” An agreement can be inferred from circumstantial evidence, which may include the overt acts of the parties in furtherance of the criminal act. With regard to the intent element, we note that to determine whether the defendant had the requisite intent to commit the crime alleged, “[t]he trier of fact must usually resort to circumstantial evidence or reasonable inferences drawn from examination of the circumstances surrounding the crime.”

At trial, Gross testified that she and Weida had several conversations concerning Weida’s fantasies that involved performing sexual acts on the dead body of a young boy. On the date they drove to Kokomo, Weida had two guns in the car and a plastic band. Weida told Gross that the band could be used to tie a boy’s hands together. Weida drove through several towns and made comments about the young boys they observed indicating for example that a given boy was too old. Although Gross testified that she had no intent to kill I.P., she was aware of Weida’s fantasies and testified that she knew Weida wanted to act out those fantasies after they spotted I.P., and he told her to ask him for directions. Furthermore, Gross actively participated in the crime by shoving I.P. into the car after Weida had pushed up the front seat and by tying the plastic band around I.P.’s wrists. From this evidence, the jury could have reasonably concluded that Weida intended to kill I.P. and that he and Gross entered into an agreement to do so. Therefore, the evidence presented at trial was sufficient to support Weida’s conviction for Conspiracy to Commit Murder.

Weida also argues that the trial court abused its discretion when it refused to give his tendered jury instruction regarding withdrawal from the conspiracy. “The giving of jury instructions lies within the trial court’s sound discretion, and we review the court’s refusal to give a tendered instruction for an abuse of that discretion.” …

At trial, Weida tendered the following jury instruction:

To withdraw from conspiracy, defendant must cease his activity in the conspiracy and take affirmative act to defeat or disavow [the] conspiracy’s purposes either by making full confession to the authorities or by communicating his withdrawal in a manner reasonably calculated to inform co-conspirators, and his withdrawal must be both complete and in good faith.

Withdrawal from a conspiracy is an affirmative defense under federal law and Weida’s instruction adequately describes the elements of that defense. However, withdrawal from a conspiracy has not been recognized as a defense under Indiana law. In his brief, Weida argues that his tendered instruction is a correct statement of the [Indiana] defense of abandonment, which was not covered by any other instruction; therefore, the trial court abused its discretion when it refused to give the instruction to the jury.

The State argues that Weida’s tendered instruction was not a correct statement of the law of the abandonment defense. Indiana Code section 35–41–3–10 describes the defense of abandonment [that can be raised by a defendant charged with conspiracy, attempt, or aiding and abetting an offense] and provides:

[I]t is a defense that the person who engaged in the prohibited conduct voluntarily abandoned his effort to commit the underlying crime and voluntarily prevented its commission.

Ind. Code § 35–41–3–10 (1998). “To be considered voluntary, the decision to abandon must originate with the defendant, not as a result of extrinsic factors that increase the probability of detection.” Estep v. State (Ind. Ct. App. 1999). Also, the defendant must have forsaken the criminal plan before completion of the underlying crime or before it became inevitable. Comparing the defenses of withdrawal and abandonment, it is clear that they consist of the same concepts because both defenses require that the defendant forsake the conspiracy.

However, the State contends that the tendered withdrawal instruction “reduces Defendant’s burden in establishing the affirmative defense of abandonment.” We disagree. The defense of withdrawal requires the defendant to affirmatively act to defeat the conspiracy, whereas the defense of abandonment requires only that the defendant voluntarily abandon his effort to commit the crime. Like lesser-included offenses, an analogy could be made that abandonment is a lesser-included defense of withdrawal. For example, if a group of individuals agrees to rob a bank, and one of those individuals voluntarily decides to forsake his part in the conspiracy, those facts might be sufficient to establish the defense of abandonment. However, those facts would clearly not be sufficient to establish the defense of withdrawal unless the individual took some affirmative act to defeat the conspiracy, such as contacting the police.

Although abandonment is clearly established as a defense by statute, withdrawal has never been recognized as a defense in Indiana. While the defendant bears the additional burden of demonstrating that he took an affirmative act to defeat the goals of the conspiracy to establish the withdrawal defense, withdrawal and abandonment are essentially the same defense. The instruction was not covered by other instructions and there was evidence in the record that would support giving the withdrawal instruction to the jury because Weida did not attempt to murder I.P., but rather he set him free. Under these extraordinary facts and circumstances, we hold that refusal of Weida’s withdrawal instruction was an abuse of the trial court’s discretion.

Conclusion

The evidence presented at trial was sufficient to support Weida’s conviction for Conspiracy to Commit Murder. However, the trial court abused its discretion when it refused to give his tendered instruction regarding the defense of withdrawal. Therefore, we reverse Weida’s conviction for Class A felony Conspiracy to Commit Murder, but we further order the trial court to reinstate Weida’s Class B felony Confinement conviction pending the result of any retrial.

Affirmed in part, reversed in part, and remanded for proceedings consistent with this opinion.

Notes and questions on People v. Weida

1. Did Kristen Gross agree to commit murder? Does it matter to Weida’s criminal liability whether Gross agreed? Think again of bilateral and unilateral definitions of conspiracy. Which does Indiana seem to adopt?
2. What is the difference between the affirmative defense of withdrawal (described here by the court, and recognized under federal law, but not recognized as a defense under Indiana law) and the Indiana statutory defense of abandonment?
3. The jury convicted Weida of both conspiracy to commit murder and the separate crime of “confinement.” The trial court then vacated the confinement conviction on double jeopardy grounds. Look at the confinement statute, reprinted before the court’s opinion. Why, in this case, would convictions for both confinement and conspiracy to commit murder violate double jeopardy? After the 2002 opinion you’ve just read, Weida was retried for both confinement and conspiracy to commit murder. He was allowed to present his abandonment argument at the new trial, but was convicted again of conspiracy to murder. Once he was convicted of the conspiracy to murder charge, the confinement charge was again vacated. As a state court later explained, “the evidentiary facts that supported the criminal confinement offense were most likely the same evidentiary facts that supported the conspiracy to commit murder charge….”
4. The Model Penal Code adopts a unilateral approach to conspiracy, and also offers an affirmative defense called “renunciation.” Consider Model Penal Code § 5.03:

   (1) Definition of Conspiracy. A person is guilty of conspiracy with another person or persons to commit a crime if with the purpose of promoting or facilitating its commission he:

   (a) agrees with such other person or persons that they or one or more of them will engage in conduct that constitutes such crime or an attempt or solicitation to commit such crime; or

   (b) agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.

   (2) Scope of Conspiratorial Relationship. If a person guilty of conspiracy, as defined by Subsection (1) of this Section, knows that a person with whom he conspires to commit a crime has conspired with another person or persons to commit the same crime, he is guilty of conspiring with such other person or persons, whether or not he knows their identity, to commit such crime.

   (3) Conspiracy with Multiple Criminal Objectives. If a person conspires to commit a number of crimes, he is guilty of only one conspiracy so long as such multiple crimes are the object of the same agreement or continuous conspiratorial relationship.

   …

   (5) Overt Act. No person may be convicted of conspiracy to commit a crime, other than a felony of the first or second degree, unless an overt act in pursuance of such conspiracy is alleged and proved to have been done by him or by a person with whom he conspired.

   (6) Renunciation of Criminal Purpose. It is an affirmative defense that the actor, after conspiring to commit a crime, thwarted the success of the conspiracy, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose.

   Is “renunciation” under the MPC similar to the federal defense of “withdrawal,” the Indiana defense of “abandonment,” or is it different from both?

Complicity, Conspiracy, and Drug Offenses

Rev. Code Washington 9.01.030 [since recodified]

Every person concerned in the commission of a felony, gross misdemeanor or misdemeanor, whether he directly commits the act constituting the offense, or aids or abets in its commission, and whether present or absent; and every person who directly or indirectly counsels, encourages, hires, commands, induces or otherwise procures another to commit a felony, gross misdemeanor or misdemeanor, is a principal, and shall be proceeded against and punished as such. The fact that the person aided, abetted, counseled, encouraged, hired, commanded, induced or procured, could not or did not entertain a criminal intent, shall not be a defense to any person aiding, abetting, counseling, encouraging, hiring, commanding, inducing or procuring him.

The STATE of Washington, Respondent

v.

Bruce W. GLADSTONE, Appellant

Supreme Court of Washington, En Banc
474 P.2d 274

Sept. 10, 1970

HALE, Justice.

A jury found defendant Bruce Gladstone guilty of aiding and abetting one Robert Kent in the unlawful sale of marijuana. Deferring imposition of sentence, the court placed defendant on probation. He appeals the order deferring sentencing contending that the evidence as a matter of law was insufficient to sustain a verdict of guilty. His point, we think, is well taken.

…Gladstone’s guilt as an aider and abettor in this case rests solely on evidence of a conversation between him and one Douglas MacArthur Thompson concerning the possible purchase of marijuana from one Robert Kent. There is no other evidence to connect the accused with Kent who ultimately sold some marijuana to Thompson.

When asked by Thompson—an agent of the police—where marijuana could be bought, the defendant did no more than name Kent as an individual who might be willing to sell some and draw a sketch of his location. There was no evidence whatever that the defendant had any association, understanding, agreement or arrangement, direct or indirect, tacit or express with Kent to aid or persuade him in any way in the sale of marijuana.

The conversation between defendant and Thompson occurred at defendant’s residence. Douglas MacArthur Thompson, a 25-year-old student at the University of Puget Sound in Tacoma and an employee of the Internal Revenue Service of the United States, had done some investigative work for the government. From time to time, the Tacoma Police Department engaged him to investigate the use, possession and sale of narcotics, principally marijuana, among college students….

Thompson testified that Lieutenant Seymour and Detective Gallwas of the narcotics detail asked him to attempt a purchase of marijuana from Gladstone. During the evening of April 10, 1967—between 10 and 11 o’clock—the two officers and Thompson drove in a police car to the vicinity of defendant’s apartment. Thompson went to Gladstone’s door alone, beyond the hearing and out of the sight of the two officers. He knocked at the door and Gladstone respond[ed]. Thompson asked Gladstone if he would sell him some marijuana. Describing this incident, Thompson testified as follows:

… Gladstone told me that he was—he did not have enough marijuana on hand to sell me any, but he did know an individual who had quite a sufficient quantity and that was very willing to sell and he named the individual as Robert Kent, or Bob Kent as he put it, and he gave me directions to the residence…. I asked him if, you know, if he could draw me a map and he did.

[Thompson] added, ‘I’m not sure whether he did give me the exact address or not, he told me where the residence was.’ He said that Gladstone then with pencil and paper sketched the location of Kent’s place of residence…

The two officers then took Thompson to Kent’s residence where marijuana was purchased. The actual purchase was made by Thompson directly from Kent while [the officers] stayed in the police car. Kent was subsequently arrested and convicted of selling Thompson approximately 8 ounces of marijuana—the very sale which defendant here was convicted of aiding and abetting.

That ended the prosecution’s case. Even if it were accorded all favorable inferences, there appears at this point a gap in the evidence which we feel as a matter of law is fatal to the prosecution’s cause. Neither on direct examination nor under cross-examination did Thompson testify that he knew of any prior conduct, arrangements or communications between Gladstone and Kent from which it could be even remotely inferred that the defendant had any understanding, agreement, purpose, intention or design to participate or engage in or aid or abet any sale of marijuana by Kent. Other than to obtain a simple map from Gladstone and to say that Gladstone told him Kent might have some marijuana available, Thompson did not even establish that Kent and the defendant were acquainted with each other….

Except for the conversation between Gladstone and Thompson and the map, the state showed only that the officers and their informant, Thompson, went to Kent’s residence, more than 3 or 4 blocks from where Gladstone lived, [and] bought some marijuana from him…. Thus, at the close of its case in chief, the state had failed to show any connection or association whatever between Gladstone and Kent or even that they knew each other, and at that juncture a motion for dismissal would lie.

…Gladstone took the stand and testified that he had been a student at the University of Puget Sound in Tacoma for 2 years and that he did not know the police informant, Douglas MacArthur Thompson, personally but had seen him on campus. Prior to the evening of April 10, 1967, he said, Thompson had never been in his home. As to Kent, the party whom he was accused of aiding and abetting, he said he had seen him between classes having coffee at the student union building, and perhaps had been in his company about 10 times altogether. He knew where Kent lived because once en route home in his car he had given Kent a lift from the student union building to the latter’s house. On this singular occasion, Gladstone did not get out of the car. He said that he did not know that Kent used marijuana or kept it for sale to other people.

Describing the incidents of April 10, 1967, when Thompson came to his door, Gladstone’s version of the event differed somewhat from Thompson’s. He testified that Thompson asked him to sell him some pot and Gladstone said, ‘No,’ and:

A. Then he asked me if I knew Rob Kent and I said yes. Q. What did you tell him? A. I said yes, I knew Rob Kent, and he asked me if I knew where Rob Kent lived and I said that I didn’t know the address, nor did I know the street upon which he lived, but I told him that I could direct him there. Q. And did he ask you to direct him? A. Yes, I started to explain how to get there and he asked me if I would draw him a map. Q. And did you do so? A. Yes, I did.

… After that brief conversation, Thompson said, ‘Thank you,’ and left. Gladstone testified that he did not counsel, encourage, hire, command, induce or otherwise procure Robert Kent to make a sale of marijuana to Douglas Thompson—or do anything that would be their legal equivalent. Thus, the state at the close of its case had not established prima facie that Gladstone, as charged, aided and abetted Kent in the sale of marijuana, and its position did not improve with the defendant’s case.

If all reasonable inferences favorable to the state are accorded the evidence, it does not, in our opinion, establish the commission of the crime charged. That vital element—a nexus between the accused and the party whom he is charged with aiding and abetting in the commission of a crime—is missing. The record contains no evidence whatever that Gladstone had any communication by word, gesture or sign, before or after he drew the map, from which it could be inferred that he counseled, encouraged, hired, commanded, induced or procured Kent to sell marijuana to Douglas Thompson as charged, or took any steps to further the commission of the crime charged. He was not charged with aiding and abetting Thompson in the purchase of marijuana, but with Kent’s sale of it.

Nor can it be said here that the state proved the existence of a conspiracy. In this state, conspiracy to commit a crime is a gross misdemeanor. The crime is complete when the conspirators have reached an agreement or understanding or consummated a plan to do the unlawful acts, for the conspiracy statute does not require proof of the common-law element of an overt act in pursuance of the conspiracy. RCW 9.22.020. Conspiracy, therefore, is a crime separate, distinct from, and unincluded in the crime which the conspirators have agreed to commit. … One may become a principal through aiding and abetting another in the commission of a crime without participating in a conspiracy. But to be a principal one must consciously share in a criminal act and participate in its accomplishment.

Thus, even without prior agreement, arrangement or understanding, a bystander to a robbery could be guilty of aiding and abetting its commission if he came to the aid of a robber and knowingly assisted him in perpetrating the crime. But regardless of the modus operandi and with or without a conspiracy or agreement to commit the crime and whether present or away from the scene of it, there is no aiding and abetting unless one “in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed.”

In the instant case, the record is totally devoid of any proof whatever that the defendant and Kent had any arrangement, agreement or understanding, or in any way conspired and confederated with each other concerning the sale of marijuana by Kent. There was no proof that they had talked about it with each other, directly or through others. Whatever information the defendant is shown by the record to have given the police informant, to the effect that Kent might sell him some marijuana, amounted at most to no more than a statement of opinion and possibly no more than campus gossip, rumor or innuendo. That the police ultimately bought marijuana from Kent would not, without more, operate to convert defendant’s statement to the police, that Kent would or might sell marijuana, into an aiding, abetting, counseling or encouraging of Kent to make the sale.

…Another case—and one nearly identical with the instant case—affirms the foregoing principles. In Morei v. United States (6th Cir. 1942), undercover narcotic agents approached the defendant, a physician, and asked him to sell them narcotics. The doctor told the agents he had none, but gave the agents the name of another party and advised the agent to tell the latter that the doctor had sent him. The doctor added that ‘he will take care of you.’ The agents did arrange a purchase of illegal narcotics from the person to whom the doctor had referred them, and the doctor was thereupon charged with aiding and abetting in the sale.

After tracing the common-law distinction between a principal in the second degree and an accessory before the fact and pointing out that an aider and abettor must at least procure, counsel or command another to commit the felony actually committed, the court said:

It is not necessary that there should be any direct communication between an accessory before the fact and the principal felon; it is enough if the accessory direct an intermediate agent to procure another to commit the felony, without naming or knowing of the person to be procured. A person is not an accessory before the fact, unless there is some sort of active proceeding on his part; he must incite, or procure, or encourage the criminal act, or assist or enable it to be done, or engage or counsel, or command the principal to do it….

* * * It is not to be assumed that Congress, in defining as a principal, one who ‘procures the commission of an offense,’ and using almost the identical language by which the common law defined aiders, abettors, and accessories, was providing for a new crime theretofore unknown. If the criterion for holding that one is guilty of procuring the commission of an offense, is that the offense would not have been committed except for such a person’s conduct or revelation of information, it would open a vast field of offenses that have never been comprehended within the common law by aiding, abetting, inducing or procuring. * * *

* * * (T)he only thing Dr. Platt did was to give Beach the name of Morei as a man from whom he might secure heroin to does horses in order to stimulate them in racing. This is not the purposive association with the venture that, under the evidence in this case, brings Dr. Platt within the compass of the crime of selling or purchasing narcotics, either as principal, aider and abettor, or accessory before the fact.

This court has recognized the necessity of proof of a nexus between aider and abettor and other principals to sustain a conviction. In State v. Hinkley (1958), amplifying the term abet, we said:

Although the word ‘aid’ does not imply guilty knowledge or felonious intent, the word ‘abet’ includes knowledge of the wrongful purpose of the perpetrator, as well as counsel and encouragement in the crime.

and approved the instruction that:

To abet another in the commission of a crime implies a consciousness of guilt in instigating, encouraging, promoting or aiding in the commission of such criminal offense.

It would be a dangerous precedent indeed to hold that mere communications to the effect that another might or probably would commit a criminal offense amount to an aiding and abetting of the offense should it ultimately be committed.

There being no evidence whatever that the defendant ever communicated to Kent the idea that he would in any way aid him in the sale of any marijuana, or said anything to Kent to encourage or induce him or direct him to do so, or counseled Kent in the sale of marijuana, or did anything more than describe Kent to another person as an individual who might sell some marijuana, or would derive any benefit, consideration or reward from such a sale, there was no proof of an aiding and abetting, and the conviction should, therefore, be reversed as a matter of law. Remanded with directions to dismiss.

HAMILTON, Justice (dissenting).

In my view the majority has stepped into the jury box and with a flourishing dissection of the evidence placed its own interpretation thereupon and, together with deftly importing the conspiratorial element of community of purpose, has substituted its verdict for that of the jury.

Before discussing the evidence adduced at the trial, I consider it appropriate to briefly review the law concerning the offense of aiding and abetting.

At common law, persons associated in some way in the commission of a crime were classified as principals and accessories. These classifications in turn were broken down into the categories of principals in the first and second degree and accessories before and after the fact. The designation of principal in the first degree was applied to the actual perpetrator of the crime, while the characterization of principal in the second degree pertained to one who was present, either actually or constructively, at the scene of the crime assisting in some fashion the principal in the first degree. The rank of accessory before the fact was attached to one who, though not present at the scene of the offense, counseled, advised, or directed commission of the crime, while one who, knowing a crime had been committed, aided or assisted the felon in escaping capture and prosecution was denominated an accessory after the fact….

This state, in common with many jurisdictions, legislatively abolished the common law classifications of principals in the first and second degree and accessories before the fact by and through the enactment of RCW 9.01.030, which provides:

Every person concerned in the commission of a felony, gross misdemeanor or misdemeanor, whether he directly commits the act constituting the offense, or aids or abets in its commission, and whether present or absent; and every person who directly or indirectly counsels, encourages, hires, commands, induces or otherwise procures another to commit a felony, gross misdemeanor or misdemeanor, is a principal, and shall be proceeded against and punished as such. The fact that the person aided, abetted, counsel, encouraged, hired, commanded, induced or procured, could not or did not entertain a criminal intent, shall not be a defense to any person aiding, abetting, counseling, encouraging, hiring, commanding, inducing or procuring him.

In the construction of this statute this court has said that each of the words of the statute, from which criminal culpability can flow, signifies the overt and affirmative doing or saying of something on the part of a person charged which directly or indirectly contributes to the commission of the primary crime.

It is not necessary to sustain a charge of aiding, abetting or counseling a crime that there be proof of a conspiratorial relationship or confederacy between the actual perpetrator of the primary crime and the one charged as an aider or abettor. Criminal conspiracy, in which concert of purpose becomes a salient element, is a separate substantive offense. RCW 9.22.010. Thus, it is stated in Pereira v. United States (1954);

Aiding, abetting, and counseling are not terms which presupposed the existence of an agreement. Those terms have a broader application, making the defendant a principal when he consciously shares in a criminal act, regardless of the existence of a conspiracy.

As is apparent from its language, our statute does not require the presence at the scene of the crime of one aiding, abetting, counseling or inducing the commission of a crime. Neither does it require a community of intent, for by the last sentence it provides that absence of criminal intent on the part of the person aided, abetted or induced to commit the primary offense is no defense to the aider or abettor. The statutory language and the overt action it contemplates does, however, give rise to the requirement that the aider or abettor entertain a conscious intent, I.e., knowledge and intent that his action will instigate, induce, procure or encourage perpetration of the primary crime.

The question to be resolved, then, in the instant case is whether the evidence sustains the jury’s conclusion that the appellant entertain the requisite intent to render him culpable as an aider or abettor. In the resolution of this question, it is to be borne in mind that appellant’s challenge to the sufficiency of the evidence requires that the evidence, and all reasonable inferences to be drawn therefrom, be interpreted in a light most favorable to the state. Furthermore, this court has held that an aider’s or abettor’s culpability may be established by circumstantial evidence.

Although the evidence in the case is conflicting, the jury was entitled to believe that on April 10, 1967, one Robert Kent sold marijuana to Douglas Thompson…; that prior to the evening of April 10, 1967, when Thompson talked to appellant, Thompson and the Tacoma Police Department were unaware of Kent or his association with marijuana; that appellant knew Kent, whom he met and associated with on the campus of the school they respectively attended; that both appellant and Kent lived off campus; that appellant knew where Kent lived and on at least one occasion had driven him home; that at the time in question the Tacoma Police Department had information that appellant was supposed to be holding a supply of marijuana for sale…; that appellant [told Thompson] that he did not have enough marijuana on hand to sell but that he knew an individual who did have an ample supply and who was willing to sell some and named the individual as Robert Kent; that upon request appellant orally gave Thompson directions to Kent’s apartment and drew a map to aid Thompson in finding the address, utilizing as a reference point a building known to appellant to be a student rendezvous where drugs had been sold; that by using the map and oral directions Thompson and the police went to Kent’s residence; That Thompson approached Kent and told him ‘Gladstone had sent me’ whereupon Kent invited him to a room and sold him some marijuana for $30; and that Thompson and one of the police officers later returned to the Kent residence, after again visiting appellant, and made a second purchase of marijuana at which time Kent was arrested.

Based upon the foregoing circumstances and the inferences reasonably derivable therefrom, I am satisfied that the jury was fully warranted in concluding that appellant, when he affirmatively recommended Kent as a source and purveyor of marijuana, entertained the requisite conscious design and intent that his action would instigate, induce, procure or encourage perpetration of Kent’s subsequent crime of selling marijuana to Thompson. Furthermore, insofar as an element of preconcert be concerned, certainly the readiness with which the passwords, ‘Gladstone had sent me,’ gained a stranger’s late evening entree to Kent’s domain and produced two illegal sales strongly suggests, if not conclusively establishes, the missing communal nexus which the majority belabors.

Finally, the jury, with the witnesses before it, was in a far better position to evaluate the witnesses’ candor, voice inflections, appearance, demeanor, attitude and credibility than this court viewing naught but the cold record.

I would sustain the jury’s verdict and affirm the judgment.

Notes and questions on Gladstone

1. Bruce Gladstone was charged with selling marijuana as an accomplice, not with purchasing it or possessing it. That is, Gladstone was charged as an accomplice to Kent, not as an accomplice to Thompson, who was working as a police informant. Do you think that distinction makes a difference to the court?
2. The dissenting opinion offers one way to think about the difference between complicity and conspiracy. According to the dissent, conspiracy requires “concert of purpose” or “community of intent,” but complicity, or accomplice liability, does not have that requirement. The dissent suggests that the majority has conflated conspiracy and complicity, inappropriately requiring concert of purpose for accomplice liability. Is this an accurate characterization of the majority opinion, in your view? Is it “community of intent” or “concert of purpose” that is missing from the prosecution’s evidence, according to the majority opinion?
3. Gladstone also raises an important question about the appropriate criminal liability, if any, for what might be called aiding with indifference. Traditional doctrines of complicity require the accomplice to intend to facilitate the underlying criminal offense. That is, the required mental state for complicity is usually said to be “true purpose” or a real intention that the crime take place. But what about a person who facilitates criminal activity by others but is indifferent to their success? What if a defendant is, like Bruce Gladstone, aware that someone is seeking help with criminal activity, but not particularly invested in whether that activity takes place or not? Some states have enacted “criminal facilitation” statutes that do not require the purpose or intent traditionally required for accomplice liability. Here is one example:

N.Y. Penal Law §115.05. New York has more or less serious versions of criminal facilitation depending on the seriousness of the crime facilitated and the age of the person that the defendant assists.

4. Unlike many appellate opinions addressing complicity or conspiracy in the context of drug trafficking, Gladstone involves only a few parties and relatively simple facts. For that reason, it’s a good case to help clarify complicity, conspiracy, and the relation between the two. But as a 1970 decision, Gladstone also offers a snapshot of a drug prosecution just before the War on Drugs gained new intensity and used expanded notions of complicity and conspiracy to obtain more drug trafficking convictions. Note that the Gladstone majority relies again on Judge Learned Hand’s language from United States v. Peoni: accomplice liability requires that the defendant “associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed.” Recall that Judge Hand applied this principle to conclude that Peoni, who sold counterfeit bills to Regno, could not be convicted as an accomplice to Dorsey after Regno sold the bills to Dorsey. Now imagine that the contraband is narcotics, not counterfeit bills. Contemporary prosecutors use expanded notions of accomplice liability and conspiracy, including but not limited to Pinkerton liability, to link together various participants in the drug trade, whether or not they have direct contact with each other or specific awareness of one another’s offenses.