More than mere presence at the scene is required. United States v. de la Cruz-Paulino, 61 F.3d 986, 1001 (1st Cir. 1995). The fact that criminal activity occurs in front of someone does not always allow the inference that that someone was a participant. Id. There are circumstances, though, where presence itself implies participation such as when a thug stands near an extortion act or a lookout stands near a robbery. Id.
More is needed than simply knowledge that the crime was to be committed. de la Cruz-Paulino, 61 F.3d at 998-99. Awareness of the crime is insufficient to establish aiding and abetting. United States v. Salamanca, 990 F.2d 629, 638 (D.C. Cir.), cert. denied, 510 U.S. 928, 1145 S.Ct. 337, 126 L.Ed.2d 281 (1993).
Mere association between the principal, and the aider and abettor is insufficient. Id. Mere participation is not enough proof that a defendant intentionally assisted in the ventures illegal purpose. United States v. Ramos-Rascon, 8 F.3d 704, 711 (9th Cir. 1993).
So, mere presence at the crime scene and guilty knowledge of the crime are generally not enough for aiding and abetting. United States v. Head, 927 F.2d 1361, 1373 (6th Cir.), cert. denied, 502 U.S. 846, 112 S.Ct. 144, 116 L.Ed.2d 110 (1991). However, one court ruled it would be unreasonable to believe that participants would permit a noncontributing interloper to remain nearby conspicuous criminal activity, unabated for an extended period of time. See United States v. Batista-Polance, 927 F.2d 14, 18 (1st Cir. 1991). However, presence, association and knowledge may be relevant and material toward proving aiding and abetting. United States v. Martiarena, 955 F.2d 363, 366-67 (5th Cir. 1992).
The key elements are the defendant's association with the venture, participating in it as in something he wished to bring about, and seeking to make it succeed. United States v. Rodriguez Cortes, 949 F.2d 532, 539 (1st Cir. 1991). "Association" within the meaning of aiding and abetting means the defendant shared in the criminal intent of the principal. United States v. Jaramillo, 42 F.3d 920, 923 (5th Cir.), cert. denied, 514 U.S. 1134, 115 S.Ct. 2014, 131 L.Ed.2d 1013 (1995). "Participation" means the defendant engaged in some affirmative conduct designed to aid the venture. Martiarena, 955 F.2d at 366.
Furthermore, it is a defense to aiding and abetting if the crime has already been committed. United States v. Camarge-Vergara, 57 F.3d 993, 1001 (11th Cir. 1995). Of course, there can be no conviction for aiding and abetting someone to do an innocent act. Shuttlesworth v. Birmingham, 373 U.S. 262, 265, 83 S.Ct. 1130, 1132, 10 L.Ed.2d 335 (1963).
[updated October 1998]