The rule of law discussed in the previous section (attempted aiding and abetting) is distinct from aiding and abetting an attempted crime. In the latter case, there would be a guilty principal and an offense, thus posing no problem under the traditional aiding and abetting framework. United States v. Washington, 106 F.3d 983, 1004 (D.C. Cir.), petition for cert. filed, (July 29, 1997) (No. 97-5423). However, whether proceeding under an attempt to aid and abet theory, or aiding and abetting an attempt, if the principal had actually attempted to commit a crime but had failed, the aider and abettor could be charged with the same offense as the principal, namely, attempt to commit the crime. Id. at 1084-85. In other words, a defendant who has aided and abetted an attempt to possess a controlled substance with intent to distribute may be sufficiently involved in the criminal venture to be guilty of the attempt on a "straight attempt theory." See Unit ed States v. Valencia, 907 F.2d 671, 685 n.18 (7th Cir. 1990).
Aiding and abetting an attempted drug offense may be invoked when local enforcement officers predisposed to sell "protection" to drug traffickers make the mistake of offering such "protection" to undercover officers posing as traffickers. See United States v. Washington, 106 F.3d 983, 1004 (D.C.Cir. 1997); United States v. Cartlidge, 808 F.2d 1064 (5th Cir. 1987).In Washington, the court described the charge as follows: "attempted possession [with intent to distribute] on an aiding and abetting theory." 106 F.3d at 1003. Two core features of the offense of attempting to aid and abet were identified. The prosecution must establish that:
1. The defendant had a criminal intent consistent with the crime of aiding and abetting a drug offense (such as intent to aid and abet the possession of cocaine with intent to distribute); as is ordinarily the case, intent would be inferred from defendant's words and actions; and
2. The defendant moved beyond mere preparation and, in fact, completed a substantial step toward committing the crime (such as attending a meeting, agreeing to protect drug dealers, accepting cash for doing so, and taking actions to carry out the plan); and
Factual impossibility was not a defense. In other words, where the defendant has been charged with attempting to aid and abet Mr. X possess cocaine with intent to distribute, it is no defense that Mr, X was, in fact, an undercover agent who never intended to possess any cocaine). Washington, 106 F.3d at 1005-1006.
As stated in United States v. Matlock, 109 F.3d 1313, 1318-1319 (8th Cir. 1997), to prove the offense of aiding and abetting an attempt to commit a drug offense (such as possession of cocaine with intent to distribute), the prosecution must establish the elements of aiding and abetting, including that the conduct of at least one accomplice -- the principal -- satisfied the elements of attempt. See generally United States v. Valencia, 907 F.2d 671, 676-86 (7th Cir. 1990) (in a prosecution following a reverse sting operation, upholding conviction of defendant Martinez for aiding and abetting attempted possession of cocaine with intent to distribute where this defendant's primary role was to construct a sophisticated storage compartment in which an accomplice -- the principal -- intended to store cocaine).
In other words, the prosecution must establish that the defendant:
1. Associated himself with the unlawful venture [to attempt to possess cocaine with intent to distribute];
2. Participated in [the unlawful venture] as something he wished to bring about; and
3. Sought by his actions to make [the unlawful venture] succeed.
United States v. Matlock, 109 F.3d 1313, 1318-1319 (8th Cir. 1997).
The Court should provide the jury the standard instructions on:
- Aiding and abetting; and
- Attempt (including the "substantial step" element); and
- The offense which is the object of the offense (such as possession of cocaine with intent to distribute).
See generally United States v. Valencia, 907 F.2d 671, 679-86 (7th Cir. 1990). However, while the prosecution must both: (1) satisfy the elements of aiding and abetting as to the defendant; and (2) prove that the conduct of at least one accomplice -- the principal -- satisfied all the elements of attempt, the prosecution need not establish that the defendant personally engaged in conduct satisfying all the elements of attempt or the elements of the object of the attempt (such as possession with intent to distribute). This makes sense, since the theory of prosecution is that the defendant aided and abetted the attempt -- as opposed to personally making the attempt in violation of 21 U.S.C. § 846 (or 21 U.S.C. § 963). But see United States v. Valencia, 907 F.2d 671, 683-85 (7th Cir. 1990) (in a case involving a charge of aiding and abetting an attempt, the Seventh Circuit, in assessing whether the trial court committed plain error by failing to in struct the jury on the "substantial step" element of the crime of attempt, assessed whether the defendant's conduct satisfied this element of attempt).Finally, where aiding and abetting an attempt is charged, it may be appropriate to propose a "conscious avoidance" or "ostrich" instruction. See United States v. Valencia, 907 F.2d 671, 679-80 (7th Cir. 1990).
[updated October 1998]