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2483

Conspiracy to aid and abet?

The government in United States v. Superior Growers Supply, 982 F.2d 173 (6th Cir. 1992), charged a conspiracy to aid and abet the manufacture of marihuana. 982 F.2d at 177. The problem the court faced was how to logically combine the crime of conspiracy, which does not require proof of the underlying substantive offense, with an aiding and abetting offense, which does not exist without one. If the charge was merely conspiracy to traffic drugs, the government would have to prove only an agreement to traffic drugs. Had the charge been aiding and abetting drug trafficking, the government would not have to prove any agreement existed, but would have to prove that the defendant(s) knew others were trafficking drugs and the defendant(s) intended to assist in the unlawful act. The court noted that in order to conspire or agree to assist others to traffic drugs, one would have to know that the others are trafficking drugs. Otherwise, all that is proved is that there was an ai ding and abetting of a possible criminal occurrence, which is not a crime. In other words, without the actual underlying crime, there can be no knowledge or intent to further it. Id. at 178.

There was a dissenting opinion which disagreed with the majority's logic. Id. at 180. The dissent noted that the proof would have sustained a guilty verdict if the charge would have been conspiracy to traffic drugs. The fact that the charge alleged the object of the conspiracy to be aiding and abetting drug trafficking should not have saddled the government with a proof burden, especially since § 2 does not create a separate crime.

The Seventh Circuit has held that a defendant can be convicted of violating the drug conspiracy statute (21 U.S.C. 846) upon proof that the defendant aided and abetted the conspiracy. See United States v. Galiffa, 734 F.2d 306, 310 (7th Cir. 1984). In other words, a defendant can be convicted of conspiring to distribute cocaine if there is proof that the defendant, knowing of the of the existence of a conspiracy to distribute cocaine, acts to further the conspiracy, even if there is no evidence that the defendant actually conspired (that is, agreed) to participate in the distribution of cocaine.

In Galiffa, the Seventh Circuit explained:

In his treatise on criminal law, Professor LaFave enunciates his belief that the Supreme Court, although it has not explicitly ruled on this issue, would decide that a person can be guilty of aiding and abetting a conspiracy when the person commits an act designed to further the conspiracy. The key, of course, is that the person must know of the conspiracy's existence at the time of his act. Without the crime of aiding and abetting a conspiracy, an unintended loophole would exist in the criminal justice system where an act is performed with full knowledge that it will further the ends of the illegal conspiracy.
734 F.2d at 309-10; see also United States v. Loscalzo, 18 F.3d 374, 383 (7th Cir. 1994) (footnotes omitted) (fraud case in which the Seventh Circuit stated: "The aiding and abetting statute serves to complement the substantive offense of conspiracy. Recognizing that conspirators often employ assistants in carrying out their plans, the statute enables the government to prosecute those who have knowingly furthered the aims of the conspiracy but who were not members of the conspiracy. The charge of aiding and abetting does not exempt the government from proving the defendant had the requisite criminal intent because the jury must still find that the aider or abettor knowingly acted to make the venture succeed."); United States v. Gonzalez, 933 F.2d 417, 444-45 (7th Cir. 1991) (cocaine distribution case adhering to Galiffa).

The cases illustrate the kinds of conduct that trigger liability for aiding and abetting a conspiracy:

  • Acting as a liaison between potential conspirators to facilitate communications and to facilitate reaching an agreement to violate the law. See United States v. Ammons, 682 F. Supp. 1332, 1337-45 (W.D.N.C. 1988) ("By knowingly aiding Ammons in the formation of the agreement, [the defendant] is liable as a principal in the conspiracy" to violate tobacco marketing regulations.);

  • Associating with a drug distribution ring as a laborer, including involvement in weighing and delivering the controlled substance. United States v. Galiffa, 734 F.2d 306, 312 (7th Cir. 1984); and

  • Associating with a drug distribution ring as a major customer. See United States v. Kasvin, 757 F.2d 887, 892 (7th Cir.), cert. denied, 474 U.S. 1032 (1985) ("On the other hand, if the jury simply regarded [the defendant] as a major customer of the ring, it was fully justified in finding that he associated himself with the criminal venture, participated in it as something he wished to bring about and sought by his actions to make it succeed. It is difficult to imagine what greater contribution [the defendant] could have made to the financial success of the venture than by becoming its largest regular customer. In short, if he was not a member of the conspiracy, he was clearly an aider and abettor of it.").
Consistent with general aiding and abetting principles, if a count in an indictment simply charges a defendant with violating 21 U.S.C. 846 (drug-related conspiracy), the prosecution could properly proceed on an aiding and abetting theory. In other words, even if the 21 U.S.C. 846 count does not refer to aiding and abetting (18 U.S.C. 2), the prosecution could proceed on the theory that the defendant, by aiding and abetting the § 846 conspiracy, violated § 846 -- and request a jury instruction on that theory. United States v. Galiffa, 734 F.2d 306, 311-12 (7th Cir. 1984).

PRACTICE NOTE: Where the prosecution plans to seek an instruction on the aiding and abetting the conspiracy theory, the indictment should be drafted in a way which precludes a claim of variance or unfair surprise. Specifically, the body of the conspiracy count of the indictment should refer to 18 U.S.C. 2 (aiding and abetting).
The concept of aiding and abetting a conspiracy has not been widely adopted. A number of district courts have rejected the concept. See United States v. Sanchez, 925 F. Supp. 991, n.3 (S.D.N.Y. 1996) (citing United States v. Moreno, 710 F. Supp. 1136, 1137 (E.D.Mich.), affirmed and remanded, 899 F.2d 465 (6th Cir. 1990). Even in the Seventh Circuit, the concept has been criticized. See United States v. Kasvin, 757 F.2d 887, 893-96 (7th Cir. 1985) (Judge Swygert, dissenting). It would be wiser for prosecutors to avoid charges alleging conspiracy to aid and abet and instead allege the underlying substantive offense as the object of the conspiracy.