Generally, in order to convict an accomplice of a completed substantive crime (rather than a mere attempt), there must be a guilty principal. United States v. Staten, 581 F.2d 878, 887 (D.C. Cir. 1978). The accomplice and the principal must have a shared intent. United States v. Walker, 99 F.3d 439, 442 (D.C. Cir. 1996).
This rule of law seems to be inapplicable, however, for "attempts" rather than completed substantive crimes. If, for example, a principal pretends to commit a crime, and the accomplice attempts to aid the principal by engaging in conduct that would have established his complicity had the crime been committed, the accomplice may also be charged with an attempt to commit the crime. See United States v. Washington, 106 F.3d 983, 1005 (D.C. Cir.), petition for cert. filed, (July 29, 1997) (No. 97-5423). In this scenario, the prosecution need not show that an offense was actually committed, nor that the principal and accomplice had a shared intent. Id. As with other attempt crimes, the focus of the court's analysis shifts away from external circumstances to an examination of the defendant's intent and actions in furtherance of that intent. Id.
Thus, the prosecution must show that the defendant acted with the kind of culpability otherwise required for the commission of the crime which he is charged with attempting, and that he or she engaged in conduct which constitutes a substantial step toward the commission of the crime. United States v. Mandujano, 499 F.2d 370, 376 (5th Cir. 1974), cert. denied, 419 U.S. 1114, 95 S.Ct. 792, 42 L.Ed.2d 812 (1975). The court looks to the question of whether, if the facts had been as the accomplice believed then, the principal would have been guilty. Washington, 106 F.3d at 1005. As with other attempt crimes, permitting convictions on the basis of the "attempt to aid and abet" theory is justified because, even if an offense was not actually committed, the defendant manifests the same dangerousness of character as the actor who himself attempts to commit the offense. Id.
A similar approach had previously been taken in United States v. Cartlidge, 808 F.2d 1064 (5th Cir. 1987). There, the Fifth Circuit upheld a conviction for attempted aiding and abetting a drug offense. Since neither the statute nor its legislative history provides an explanation of what constitutes "attempt," the court followed the principle of attempt liability developed at common law. Id. at 1066. Under the common law model, the defendant could be convicted of attempted aiding and abetting possession with intent to distribute, despite the fact that no drug offense was actually committed by the principal, if he (1) had exhibited a criminal intent consistent with the crime of aiding and abetting a drug operation; and (2) had moved beyond preparation and completed the requisite substantial step toward committing that crime. Id. at 1068-69.
Courts have "routinely affirmed" convictions for aiding and abetting attempted drug offenses. United States v. Collins, 779 F.2d 1520, 1533-34 (11th Cir. 1986) (upholding charge of aiding and abetting attempt to import marijuana); United States v. Matlock, 109 F.3d 1313, 1318-1319 (8th Cir. 1997) (upholding conviction where defendant went to house to receive package of drugs intended for distribution by his accomplices -- the principals); United States v. Stone, 960 F.2d 426, 433-34 (5th Cir. 1992) (upholding conviction of defendant Sienhausen because she knowingly made her parent's home available for clandestine laboratory operations or meetings intended to further the criminal venture); United States v. Padilla, 961 F.2d 322, 324-25 (2nd Cir.), cert. denied, 506 U.S. 846 (1992) (upholding conviction of defendant Torres, who acted as a "lookout"). Notwithstanding contrary dictum in United States v. Blankenship, 970 F.2d 283, 288-89 (7th Cir. 1992) (a conspiracy case), the Seventh Circuit is in accord. See United States v. Valencia, 907 F.2d 671, 677 (7th Cir. 1990) (stating "we shall assume that Mr. Martinez was convicted of aiding and abetting Mr. Valencia's attempt; such a conviction is entirely permissible").The charge of aiding and abetting an attempt may be particularly appropriate in two situations:
- Against individuals who have sought to facilitate the clandestine manufacture of methamphetamine (or some other controlled substance) -- whether or not the venture was ultimately successful. See United States v. Stone, 960 F.2d 426, 433-34 (5th Cir. 1992) (upholding conviction of defendant Sienhausen for aiding and abetting an attempt to manufacture methamphetamine because she knowingly made her parent's home available either for clandestine laboratory operations or meetings intended to further the criminal venture); United States v. Boyd, 958 F.2d 247, 251 (8th Cir. 1992) (upholding conviction for aiding and abetting an attempt to manufacture methamphetamine); United States v. Wagner, 884 F.2d 1090, 1097 (8th Cir. 1989), cert. denied, 494 U.S. 1088 (1990) (in ruling upon defendant Michael Wagner's claim that the jury found him guilty solely of aiding and abetting his brother's attempt to manufacture methamphetamine, the court held that the e vidence was sufficient to sustain such a conviction); and
- In reverse sting cases. See United States v. Nunn, 940 F.2d 1128, 1131-32 (8th Cir. 1991) (in a prosecution following a reverse sting operation, upholding conviction of defendant Nunn who, knowing of the criminal venture, drove an accomplice to meetings); United States v. Duke, 940 F.2d 1113, 1117-18 (8th Cir. 1991), cert. denied, 116 S.Ct. 224 (1995) (in a prosecution following a reverse sting operation, upholding conviction where the defendant -- the head of a drug organization -- supplied $120,000 to an underling to purchase cocaine).
[updated October 1998]