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Aiding and Abetting (18 U.S.C. § 2)

The government can also convict a defendant for a substantive offense under the aiding and abetting statute -18 U.S.C. § 2. There is no separate penalty for § 2. To prove a substantive charge under a theory of aiding and abetting, the government has to prove that the defendant knowingly associated himself with the criminal venture and sought to make the venture a success. Judge Learned Hand set out the classic definition of aiding and abetting more than half a century ago when he explained that in order for a defendant to be liable as an aider and abettor, he must “in some sort associate himself with the venture, that he participate in it as something that he wishes to bring about, [and] that he seek by his action to make it succeed.” As such, the crime of aiding and abetting does not require proof of an agreement to break the law like a conspiracy charge does. However, it does require knowledge of the crime being aided and abetted.

The legal axiom “Actus non facit reum, nisi mens sit rea” (“the act alone does not amount to guilt; it must be accompanied by a guilty mind”) applies to this analysis. (Reversing conviction for aiding and abetting interstate transportation of stolen goods where evidence showed that defendant only told principals the location of a truck containing the goods that were stolen, and that defendant did not know what principals planned to do with stolen merchandise; Seventh Circuit holding that where relationship between the defendant’s acts and the ultimate crime is attenuated, government must prove specific intent or specific knowledge of the crime charged to convict of aiding and abetting.)

 

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