21.00
AIDING
AND
ABETTING
Updated
June 2001
21.01 STATUTORY LANGUAGE: 18 U.S.C. § 2
21.03[3] Participation and Success of Venture
21.04 PLEADING REQUIREMENTS
21.05 APPLICATION IN TAX CASES
21.05[1] Aiding in Preparation/Filing of False Return: 26 U.S.C. § 7206(2)
21.05[2] Filing False Claim for Refund: 18 U.S.C. § 287
21.07 STATUTE OF LIMITATIONS
21.01 STATUTORY LANGUAGE: 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
(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.
A person may be convicted of a crime even if he or she personally did
not perform 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 him or her 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). 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. 1989);
United States
v.
Martin, 747 F.2d 1404, 1407 (11th Cir. 1984).
Section 2 covers two types of aiding and abetting. Causey,
835 F.2d at 1291-92. 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
Under subsection 2(b), frequently referred to as causing, 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 (Motley, 940 F.2d
at 1081; United States v. Ruffin, 613 F.2d 408, 412 (2d Cir. 1979));
whether the agent lacked a criminal intent to commit the offense
(Causey, 835 F.2d at 1292); or whether the accused lacked the
capacity to commit the criminal offense without the agent's involvement
(Smith, 891 F.2d at 711).
To establish a violation of 18 U.S.C. § 2, the government must
establish the following elements beyond a reasonable doubt:
1. The defendant associated with the criminal venture;
2. The defendant knowingly participated in the venture; and,
3. The defendant sought by his or her actions to make the venture
Nye & Nissen v.
United States
, 336
U.S.
613, 619 (1949). See
also United States v. Abreu, 962 F.2d 1425, 1429 (1st Cir.
1992);
United States
v. Singh, 922 F.2d 1169, 1173 (5th Cir.
1991);
United States
v. Perez, 922 F.2d 782, 785 (11th Cir.
1991);
United States
v. Labat, 905 F.2d 18, 23 (2d Cir. 1990);
United States
v. Lanier, 838 F.2d 281, 284 (8th Cir. 1988);
United States
v. Torres, 809 F.2d 429, 433 (7th Cir. 1987).
21.03[1] Need Underlying Offense
In order to sustain a conviction under subsection 2(a), the government
must present evidence showing an underlying offense to have been committed
by a principal and that the principal was aided and abetted by the accused.
United States
v. Elusma, 849 F.2d 76, 78 (2d Cir. 1988); United
States v. Martin, 747 F.2d 1404, 1407 (11th Cir. 1984). The government
is not required, however, to show that the principal was indicted, convicted
or even identified.
United States
v. Powell, 806 F.2d 1421, 1424
(9th Cir. 1986);
United States
v. Campa, 679 F.2d 1006, 1010 (1st
Cir. 1982); Ray v.
United States
, 588 F.2d 601, 603-04 (8th Cir.
1978). Moreover, the fact that the principal may have been acquitted of the
underlying offense does not bar prosecution of the aider and abettor for the
same offense. Standefer v.
United States
, 447
U.S.
10, 14 (1980).
Under subsection 2(b), the government does not have to establish the
guilt of the actor, but only that of the accused who caused the actor to
commit the offense.
United States
v. Motley, 940 F.2d 1079, 1082
(7th Cir. 1991). The government need only show that the aider and abettor
caused the act to be performed.
United States
v. Smith, 891 F.2d
703, 711 (9th Cir. 1989).
21.03[2] Association Defined
Association with the criminal venture has been interpreted to mean the
defendant "shared the criminal intent of the principal."
United States
v. Roan Eagle, 867 F.2d 436, 445 n.15 (8th Cir. 1989). In prosecutions
under subsection 2(a), this means that the government must show that: (1)
the perpetrator had the requisite criminal intent to commit the underlying
offense and (2) the aider and abettor had the same requisite intent.
United States
v. Perez, 922 F.2d 782, 785 (11th Cir. 1991); United
States v. Labat, 905 F.2d 18, 23 (2d Cir. 1990);
United States
v.
Lindell, 881 F.2d 1313, 1323 (5th Cir. 1989);
United States
v.
Gaskins, 849 F.2d 454, 459 (9th Cir. 1988);
United States
v.
Lard, 734 F.2d 1290, 1298 (8th Cir. 1984);. See also
United States
v.
Bancarli, 110 F.3d 1425, 1429-30 (9th Cir. 1997) (jury must find that
defendant knowingly and intentionally aided and abetted the principals in
each essential element of the crime).
Under subsection 2(b), the government need only show that the one
causing the commission of the prohibited act had the requisite criminal
intent to commit the underlying offense. The intent of the actor who
committed the criminal act is irrelevant.
United States
v. Laurins,
857 F.2d 529, 535 (9th Cir. 1988);
United States
v. Rucker, 586 F.2d
The government may use circumstantial evidence to establish the aider
and abettor's intent.
United States
v. Castro, 887 F.2d 988, 995
(9th Cir. 1989). Further, the government is not required to show that the
aider and abettor knew every detail of the underlying crime. Perez,
922 F.2d at 785;
United States
v. Smith, 832 F.2d 1167, 1170 (9th
Cir. 1987);
United States
v. Torres, 809 F.2d 429, 433 (7th Cir.
1987); Lard, 734 F.2d at 1298.
21.03[3] Participation and Success of Venture
In order to aid and abet, one must do more than merely be present at
the scene of a crime and have knowledge of its commission.
United States
v. Esparsen, 930 F.2d 1461, 1470 (10th Cir. 1991);
United States
v.
Morrow, 923 F.2d 427, 436 (6th Cir. 1991);
United States
v.
Lindell, 881 F.2d 1313, 1323 (5th Cir. 1989);
United States
v.
Payne, 750 F.2d 844, 860 (11th Cir. 1985);
United States
v. Lard,
734 F.2d 1290, 1298 (8th Cir. 1984). The element of participation requires
the government to show some active participation or encouragement, or some
affirmative act designed to further the crime. Morrow, 923 F.2d at
436;
United States
v. Perez, 922 F.2d 782, 785 (11th Cir. 1991).
This element may be established by circumstantial evidence. United
States v. Smith, 832 F.2d 1167, 1170 (9th Cir. 1987). Further, the
evidence may be of "relatively slight moment." Esparsen, 930 F.2d at
1470. While mere presence and association alone are insufficient to sustain
a conviction under section 2, they are factors which may be considered along
with other circumstantial evidence establishing participation. United
States v. Ivey, 915 F.2d 380, 384 (8th Cir. 1990); Lindell, 881
21.04 PLEADING REQUIREMENTS
Because section 2 does not define a separate offense, the defendant
must also be charged with a substantive offense as to which the defendant
was an aider and abettor. London-Gomez v.
INS
, 699 F.2d 475, 477
(9th Cir. 1983); United States v. Cowart, 595 F.2d 1023, 1031 n.10
(11th Cir. 1979). Section 2 may be applied to any statute in the federal
criminal code.
United States
v. Sopczak, 742 F.2d 1119, 1121 (8th
Cir. 1984);
United States
v. Jones, 678 F.2d 102, 105 (9th Cir.
1982). But see
United States
v. Southard, 700 F.2d 1, 19-20
(1st Cir. 1983) (listing exceptions -- e.g., a victim whose conduct
significantly assisted in the commission of the crime, such as a person who
While it is preferable that an indictment charge a violation of
section 2 if the government intends to proceed on a theory of aiding and
abetting, it need not be specifically alleged in an indictment. United
States v. Vaughn, 797 F.2d 1485, 1491 n.1 (9th Cir. 1986); United
States v. Cook, 745 F.2d 1311, 1315 (10th Cir. 1984);
United States
v. Tobon-Builes, 706 F.2d 1092, 1099 (11th Cir. 1983);
United States
v. Beardslee, 609 F.2d 914, 919 (8th Cir. 1979);
United States
v.
Tucker, 552 F.2d 202, 204 (7th Cir. 1977).. Rather, all indictments for
substantive offenses must be read as if the alternative provided by 18
U.S.C. § 2 were embodied in the indictment.
United States
v.
Sabatino, 943 F.2d 94, 99-100 (1st Cir. 1991);
United States
v.
Gaskins, 849 F.2d 454, 459 (9th Cir. 1988);
United States
v.
Perry, 643 F.2d 38, 45 (2d Cir. 1981);
United States
v. Bullock,
451 F.2d 884, 888 (11th Cir. 1971).
One may be convicted of aiding and abetting even though it is not
alleged in the indictment, provided: (1) the jury is properly instructed on
the aiding and abetting charge and (2) the defendant had sufficient notice
of the aiding and abetting charge and was not unfairly surprised. United
States v. Martin, 747 F.2d 1404, 1407 (11th Cir. 1984); Tucker,
If an indictment charges section 2, it is not necessary for the
indictment to state particulars such as who, when, how, and in what manner
the defendant aided and abetted another in the commission of a substantive
offense.
United States
v. Garrison, 527 F.2d 998, 999 (5th Cir.
21.05 APPLICATION IN TAX CASES
21.05[1] Aiding in Preparation/Filing of False Return: 26 U.S.C.
Section 7206(2) of Title 26 makes it a felony to:
Willfully aid[] or assist[] in . . . the preparation or presentation
under . . . the internal revenue laws . . . of a return . . . which is
fraudulent or is false as to any material matter, whether or not such
falsity or fraud is with the knowledge or consent of the person
authorized or required to present such return . . . .
This statute is known as the Internal Revenue Code's aiding and
abetting provision, and applies not only to tax return preparers but to
anyone who causes a false return to be filed.
United States
v.
Sassak, 881 F.2d 276, 277-78 (6th Cir. 1989);
United States
v.
Hooks, 848 F.2d 785, 789 (7th Cir. 1988);
United States
v.
Williams, 644 F.2d 696, 701 (8th Cir. 1981). Reference should be made
to the discussion of this statute in the section of this Manual dealing with
section 7206(2). See Section 13, supra.
In prosecutions under subsection 2(a), the government must prove that
an underlying offense was committed by someone. Under section 7206(2),
proof of the underlying offense is unnecessary.
United States
v.
Griffin
, 814 F.2d 806, 811 (1st Cir. 1987). See also United
States v. Motley, 940 F.2d 1079, 1082 (7th Cir. 1991) (language of
section 7206(2) makes it clear that government does not have to show the
taxpayers had guilty knowledge). Consequently, in false return cases,
section 7206(2) should be charged rather than section 2(a).
21.05[2] Filing False Claim for Refund: 18 U.S.C. § 287
Section 287 of Title 18 makes it a felony to "make[] or present[] . . .
a claim upon or against the
United States
. . . knowing such claim to be
false, fictitious or fraudulent." 18 U.S.C. § 287 (1988). Sections 287
and 2(b) are commonly used in false claim for refund schemes.
For example, in United States v. Causey, 835 F.2d 1289, 1292
(9th Cir. 1987), the Ninth Circuit upheld the conviction of the defendant
for causing 18 individuals to file false tax returns claiming refunds, in
violation of 18 U.S.C. §§ 287 and 2. The defendant argued that
the government failed to establish that the persons actually submitting the
false claims knew they were false. The Ninth Circuit distinguished the two
subsections of 18 U.S.C. § 2 and found that under subsection 2(b) a
person "may be guilty of causing a false claim to be presented to the United
States even though he or she uses an innocent intermediary to actually pass
on the claim to the
United States
." 835 F.2d at 1292. The court then held
that in a section 2 prosecution for violation of section 287, the government
does not need to allege or prove that the person actually submitting the
claims knew them to be false.
Id.
Consequently, in prosecutions for false refund claims, it is
recommended that prosecutors charge sections 287 and 2(b).
Venue in an aiding and abetting charge is proper not only in the
district in which the underlying offense took place, but also in the
district where the accessorial acts took place.
United States
v.
Delia, 944 F.2d 1010, 1013 (2d Cir. 1991);
United States
v.
Griffin
, 814 F.2d 806, 810 (1st Cir. 1987);
United States
v.
Buttorff, 572 F.2d 619, 627 (8th Cir. 1978);
United States
v.
Kilpatrick, 458 F.2d 864, 867-68 (7th Cir. 1972).
For a general discussion of venue in criminal tax cases, see
21.07 STATUTE OF LIMITATIONS
The statute of limitations for the offense of aiding and abetting is
the statute of limitations applicable to the substantive offense. United
States v. Musacchia, 900 F.2d 493, 499 (2d Cir. 1990).
For a general discussion of statute of limitations in criminal tax
cases, see Section 7.00, supra.
