2008 (Transition)
United
States v. Mitchell, 66 M.J. 176 (Article 77,
UCMJ, provides that a person is
liable as a principal if a person aids and abets the commission of the
offense;
to aid and abet, the accused must in some sort associate himself with
the venture,
participate in it as in something that he wishes to bring about, and
seek by
his action to make it succeed; aiding and abetting requires proof of
the
following: (1) the specific intent to
facilitate the commission of a crime by another; (2) guilty knowledge
on the
part of the accused; (3) that an offense was being committed by
someone; and
(4) that the accused assisted or participated in the commission of the
offense;
intent may be inferred from the circumstances of the particular case).
(the intent element of
indecent assault may be
satisfied, in the case of an accomplice, by proof that the accomplice
shared in
the perpetrator’s criminal purpose and intended to facilitate the
intent of the
perpetrator with respect to the commission of the offense; when an
accused
pleads guilty to aiding and abetting an indecent assault, the accused
must
admit to sharing in the perpetrator’s criminal intent to gratify the
lust or
sexual desires of the perpetrator; the accused’s admissions must
objectively
support a military judge’s finding that:
(1) the accused possessed the specific intent to facilitate the
commission of the indecent assault; (2) the accused had a guilty
knowledge; (3)
the indecent assault was being committed by someone; and (4) the
accused
assisted or participated in the commission of the indecent assault).
(in this case, appellant’s
pleas of guilty to
committing an indecent assault, by aiding and abetting a fellow Marine
to have
sexual intercourse with the victim was provident, despite appellant’s
objection
that the plea inquiry did not demonstrate that he acted with the
specific
intent to gratify his own lust or sexual desire; appellant admitted
that he
acted with the specific intent to gratify the perpetrator’s lust or
sexual
desires; in addition, appellant admitted that he intended to facilitate
the
perpetrator’s commission of the indecent assault, knew that the
perpetrator had
indecently assaulted the victim, and encouraged the perpetrator’s
commission of
the indecent assault; the military judge was not required to elicit
facts from
appellant demonstrating that he intended to gratify his own lust or
sexual
desires).
(a person can be convicted as a principal by
aiding and abetting absent proof that the person possessed the intent
required
of the actual perpetrator of the offense).
2006
(establishment of a duty to
intervene, without more, does
not per se
satisfy the requirement of a shared criminal purpose under Article 77,
UCMJ; failure
to act in accordance with a legal duty can reflect criminal intent;
however,
this is a fact-specific inquiry).
(Article 77, UCMJ, is
conjunctive; it requires a finding of
encouragement, for example, a result plus an intent).
United
States v. Gosselin, 62 M.J. 349 (although an
accused may not be the primary
actor in an offense, he may be held liable as a principal to the crime
if he
aids, abets, counsels, commands, or procures its commission).
(the elements of
aiding and abetting an
offense under Article 77, UCMJ, are: (1)
the specific intent to facilitate the commission of a crime by another;
(2)
guilty knowledge on the part of the accused; (3) that an offense was
being
committed by someone; and (4) that the accused assisted or participated
in the
commission of the offense).
(for an accused
to be a principal under
Article 77, UCMJ, and thus to be guilty of the offense committed by the
perpetrator, he must (1) assist, encourage, advise, instigate, counsel,
command, or procure another to commit, or assist, encourage, advise,
counsel,
or command another in the commission of the offense; and (2) share in
the
criminal purpose of design; Article 77 has been generally interpreted
to
require an affirmative step on the part of the accused; mere inactive
presence
at the scene of a crime does not establish guilt; the law requires
concert of
purpose or the aiding or encouraging of the perpetrator of the offense
and a
conscious sharing of his criminal intent).
(in some
circumstances, inaction may make one
liable as a party, where there is a duty to act; if a person has a duty
to
interfere in the commission of an offense, but does not interfere, that
person
is a party to the crime if such a noninterference is intended to and
does
operate as an aid or encouragement to the actual perpetrator).
2000
United
States v. Browning, 54 MJ 1 (a co-conspirator may
be held
criminally responsible under theory of vicarious liability pursuant to
Article
77, UCMJ, even though the Article does not specifically deal with
vicarious
liability of co-conspirator and even if not specifically alleged in the
pleadings).
1999
United
States v. Thompson, 50 MJ 57 (court’s case law has
generally
interpreted Article 77, principals, to require an affirmative step on
the part
of the accused).