21.00 AIDING AND ABETTING
21.01 STATUTORY LANGUAGE: 18 U.S.C. § 2
§2. Principals
(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.
21.02 GENERALLY
A person may be convicted of a crime even if he or she personally did not do every act constituting the crime. The basis for this liability is section 2 of Title 18, the accomplice statute. Under this statute, an individual may be indicted as a principal for commission of a substantive offense and may be convicted by proof showing he or she to be an aider and abettor. Nye & Nissen v. United States, 336 U.S. 613, 618-20 (1949); United States v. Horton, 847 F.2d 313, 321-22 (6th Cir. 1988); United States v. Martin, 747 F.2d 1404, 1407 (11th Cir. 1984).
Aiding and abetting, however, is not an independent crime. United States v. Causey, 835 F.2d 1289, 1291 (9th Cir. 1987); United States v. Cook, 745 F.2d 1311, 1315 (10th Cir. 1984), cert. denied, 469 U.S. 1220 (1985). One cannot aid or abet oneself. Some underlying criminal offense must be pled and proved in order for liability to attach under 18 U.S.C. § 2. United States v. Roan Eagle, 867 F.2d 436, 445 (8th Cir.), cert. denied, 490 U.S. 1028 (1989); United States v. Martin, 747 F.2d 1404, 1407 (11th Cir. 1984).
Section 2 covers two types of aiding and abetting. United States v. Causey, 835 F.2d 1289, 1291-92 (9th Cir. 1987). Subsection (a) of the statute is aimed at traditional aiding and abetting, which requires proof of a substantive offense. United States v. Motley, 940 F.2d 1079, 1082 (7th Cir. 1991). Under subsection 2(a), the government must prove that someone committed a crime, and that another person aided and abetted in the commission of that crime. Causey, 835 F.2d at 1292. In effect, the second person is made a "coprincipal with the person who takes the final step and violates a criminal statute." United States v. Smith, 891 F.2d 703, 711 (9th Cir. 1989), cert. denied, 498 U.S. 811 (1990).
Under subsection 2(b), the government is not required to prove that someone other than the defendant was guilty of a substantive offense. Causey, 835 F.2d at 1292. This subsection is aimed at the person "who causes an intermediary to commit a criminal act, even though the intermediary who performed the act has no criminal intent and . . . is innocent of the substantive offense." United States v. Tobon-Builes, 706 F.2d 1092, 1099 (11th Cir. 1983).
Under subsection 2(b), it is irrelevant whether the agent who committed the criminal act is innocent or acquitted. United States v. Ruffin, 613 F.2d 408, 412 (2d Cir. 1979); Motley, 940 F.2d at 1081. Moreover, it is irrelevant whether the agent lacked a criminal intent to commit the offense. Causey, 835 F.2d at 1292. Similarly, it makes no difference whether the accused lacked the capacity to commit the criminal offense without the agent's involvement. Smith, 891 F.2d at 711.
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