CORE CRIMINAL LAW SUBJECTS: Crimes: Article 77 - Principals

2012 (September Term)

United States v. Bennitt, 72 M.J. 266 (aiding and abetting the wrongful use of drugs is a viable offense under the UCMJ, as there is no evidence that Congress intended Article 112a, UCMJ, to preempt the entire universe of possible charges involving drugs, and nothing in the plain language or history of Article 77, UCMJ, 10 USC § 877, excludes wrongful use of a controlled substance as an object of aiding and abetting). 

2011 (September Term)

United States v. Vela, 71 M.J. 283 (Article 77, UCMJ, imposes liability as a principal on one who (1) assists, encourages, advises, counsels, or commands another in the commission of the offense, and (2) shares in the criminal purpose of design).

(the elements of aiding and abetting are: (1) the specific intent to facilitate the 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).

(Article 77, UCMJ, has generally been interpreted to require an affirmative step on the part of the accused; the accused must in some sort associate himself with the venture, in that he participate in it as in something that he wishes to bring about, and that he seek by his action to make it succeed). 

(while mere presence is not enough to impose liability as an aider or abettor, 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 noninterference is intended to and does operate as an aid or encouragement to the actual perpetrator). 

(evidence was legally sufficient to establish that appellant had the requisite specific intent and knowledge for aiding and abetting the wrongful placing of a weapon on the body of a dead Iraqi national in violation of Article 134, UCMJ, even though his team leader actually placed the weapon with the body, where rational court members could have concluded from the evidence that both soldiers intended to kill the victim and stage the scene to make it appear that he was a combatant carrying an AK-47; appellant completed his part by taking the affirmative act of shooting the victim in the head; his team leader completed his part by staging the weapon on the body; appellant participated in the offense by setting the stage for the offense and later participating in the cover-up of the incident; although the murder of the victim and the placement of the weapon were charged in a discrete manner, the members were free to review all the evidence in determining whether appellant was guilty of the offenses; based on the evidence as a whole, rational court members could have concluded beyond a reasonable doubt that appellant had the specific intent to facilitate his team leader’s act of placing the weapon with the body, and that he actively participated in his team leader’s staging of the scene by ensuring the death of the victim).

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

 

United States v. Simmons, 63 M.J. 89 (to be guilty as a principal under an aiding and abetting theory, a person 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; 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; however, mere presence at the scene of a crime does not make one a principal). 

 

(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).


(to establish liability for aiding and abetting a crime, it is not sufficient to demonstrate mere presence at the scene of the crime; where an accused did not take any affirmative action to assist in the commission of an offense, failure to take affirmative measures to prevent the commission of the offense does not in any way establish guilt as a principal).


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).

(evidence supports conviction for rape as a principal where appellant:  (1) participated in getting victim helplessly intoxicated, (2) knew another was going to have intercourse with the victim, (3) did nothing to dissuade intercourse when appellant was looked to for approval, and (4) provided a condom; collectively, this evidence was legally sufficient to conclude that appellant encouraged and assisted the rape).


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