What is not required to prove aiding and
There must be a guilty principal before there can be aider
and abettor. United States v. Washington, 106 F.3d 983,
1003 (D.C. Cir.), petition for cert. filed, (July 29,
1997) (No. 97-5423). However, the government need not prove the
actual identity of principal, provided the evidence shows that
the underlying crime was committed by someone. United States
v. Clark, 980 F.2d 1143, 1146 (8th Cir. 1992). It is not
necessary that the aider and abettor know who actually committed
the substantive offense. United States v. Jackson, 72
F.3d 1370, 1385 (9th Cir. 1995), cert. denied, __ U.S. __,
116 S.Ct. 1546, 134 L.Ed.2d 649 (1996).|
In fact, because liability under § 2 is treated as
principal liability, there is no requirement that a de facto
principal be convicted of an offense prior to convicting someone
as an aider and abettor, nor is there even a bar to prosecuting
someone as an aider and abettor after an alleged de facto
principal is acquitted. Standefer, 447 U.S. at 15-20, 100
S.Ct. at 2003-06.
Some courts have carved out significant exceptions to the
rule that there must be a guilty principal and a substantive
crime committed. For example, it is now generally accepted that
an accomplice may be convicted, notwithstanding the fact that
the principal has not yet been tried or has been acquitted in a
separate trial. Wayne R. Lafave, Modern Criminal Law: Cases,
Comments and Questions 754 (2d ed. 1988). Similarly, some
courts have stated that an accomplice may be convicted despite
the fact that the principal was found not guilty based on some
defense not available to the accomplice, such as entrapment or
insanity. Id. Some courts have also held that an aiding
and abetting conviction of a completed substantive offense may
stand even if the principal is a government agent with no guilty
intent, and even if, therefore, no substantive crime was
actually committed. See United States v.
Meinster, 619 F.2d 1041, 1046 (4th Cir. 1980); United
States v. Gould, 419 F.2d 825, 826 (9th Cir. 1969).
The proof must show someone other than the aider and abettor
could have satisfied all the requirements of the substantive
offense. United States v. Yost, 24 F.3d 99, 104 (10th
Cir. 1994). One cannot aid and abet oneself. Id.
It is unnecessary to show that the aider and abettor received
compensation or have any stake in the transaction to be
convicted. Id. The evidence need not show the defendant
participated in every phase of the venture. United States v.
Howard, 13 F.3d 1500, 1502 (11th Cir. 1994).
It has been adjudged repeatedly that the fact that a
defendant was incompetent to commit the offense as principal by
reason of not being of a particular age, sex, condition, or
class, he may, nevertheless, be punished as procurer or abettor.
Id. This doctrine is supported by reason for if it were
not sound, there could be no punishment of the crime of procuring
another to commit an offense, although the procurer might share
in the proceeds of the crime and be actuated by the worst of
[updated October 1998]