Chapter 2: Article 77, UCMJ principles
§ 2:1
Elements
§ 2:2
Discussion
§ 2:3
Establishing Liability as an Aider and Abettor
§ 2:4
Presence at the Scene of the Crime and Failure to Stop the Offense
§ 2:5
Pleading Issues
§ 2:6
Common Defenses
§ 2:7
Lack of Specific Intent
§ 2:8
Withdrawal
§ 2:9
§ 2:10
Standard Instructions
Maximum Punishments
§ 2:1 – Elements
(1) That the accused committed a punishable offense or aided, abetted, counseled, commanded, or procured the commission of the act; or,
(2) That the accused caused an act to be done which if directly performed by him would be a punishable offense.
§ 2:2 – Discussion
The UCMJ basically creates two categories of principals – those who perpetrate an offense and those who aid and abet. The principal is criminally liable for all offenses likely to result as a natural and probable consequence of the offense directly intended.[1]
A perpetrator actually commits the offense by his or her own hand or by knowingly or intentionally “inducing or setting [the offense] in motion. For instance, an accused may perpetrate an offense when he directs another individual to take an unsecured item from a public setting. The accused would be liable whether the individual he directed to take the item possessed the requisite mens rea to commit a larceny. The relevant inquiry is whether the accused had a criminal intent.[4]
Principals are held independently liable regardless of whether the perpetrator is identified or even convicted.
If an accused is not liable for a crime as a perpetrator, then liability must attach under either an “aider and abettor” theory or a co-conspirator theory. Conspiracies are discussed under Chapter 6. Article 77, however, does contemplate the vicarious liability of co-conspirators. In Browning, the Court of Appeals for the Armed Forces held that though a conspiracy was not charged, the prosecution could prove the charged offenses of larceny and fraud under a perpetrator, aider and abettor, or co-conspiracy theory.[5]
In terms of aider and abettor theories, in Pritchett, the Court of Military Appeals outlined the following elements to establish liability:
The actus reus for an aider and abettor requires the accused to assist, encourage, advise, instigate, counsel, command or procure a punishable act. The law requires, as a threshold matter, an affirmative act.[7] Generally, an accused can be found liable as an aider and abettor whenever he or she participates in the criminal venture.[8]
The mens rea for an accomplice requires “proof that the accomplice shared in the perpetrator’s criminal purpose and intended to facilitate the intent of the perpetrator with respect to the commission of the offense.”[9] It is important to note that an accomplice can be held liable for either a greater degree of offense or lesser offense depending on his or her degree of intent.[10]
§ 2:4 – Presence at the Scene of the Crime and Failure to Stop the Offense
Presence at the scene of an offense is not required for an accused to be held liable as a principal. Good examples are the recent Stryker 5 murder cases out of Fort Lewis. The government proceeded on an accomplice liability theory against the squad leader in United States v. Gibbs because, though he was not at the scene of the first murder, he provided an unaccounted for grenade that the principals used in committing murder.
On the same token, mere presence at the scene of a crime does not inherently make an accused a principal. (MCM, pt. IV, para 1(b)(3)(b). United States v. Shelly, 19 M.J. 325 (C.M.A. 1985). United States v. Waluski, 21 C.M.R. 46 (C.M.A. 1956). The relevant inquiry is found in the Pritchett test – though presence at the scene may be considered in establishing liability.
Under Article 77, the failure to stop a crime does not establish liability as an aider and abettor unless there was an affirmative duty to interfere with the commission of the offense. Generally, the failure to report an offense is not a crime either. The government, however, can carve out certain exceptions. There may be a duty to report any unlawful dissemination of national security information. (18 USC § 793). Under some circumstances, the failure to report or stop a crime could constitute a dereliction of duty.[11]
§ 2:5 – Pleading Issues
Under Rule for Courts-Martial 307 (c)(3), all principals are charged as perpetrators. The prosecution is not required to choose between perpetrator or aider and abettor theories.[12] Likewise, the judge is free to instruct under either theory – even if the government never presented the theory.
An aider and abettor is not relieved of criminal liability merely because the perpetrator fails to complete the offense.
§ 2:6 – Common Defenses
-Lack of specific intent
-Withdrawal
§ 2:7 - Lack of Specific Intent
In every case, defense counsel should immediately examine the client’s specific intent. Benchbook instruction 5-17 “Evidence Negating Mens Rea” is helpful, particularly in cases where there is no lack of mental responsibility defense. Expert witnesses can often help defense counsel examine the accused’s mental condition before and after the alleged offenses.
Defense counsel will want to pay careful attention to:
-Mental diseases (e.g. mood disorders, psychotic disorders, etc.)
-Mental defects (e.g. traumatic brain injury)
-Mental impairments (e.g. alcohol or drug abuse)
-Mental conditions (e.g. traumatic events – heat of sudden passion)
-Mental deficiency (e.g. low intelligence)
-Character or behavior disorder (e.g. Asperger’s Syndrome, personality disorders)
-Any evidence of consent, where applicable
§ 2:8 - Withdrawal
Another common defense is the defense of withdrawal. Simply stated, an individual avoids criminal liability if he or she withdraws before the alleged overt act is committed. The withdrawal must consist of some affirmative conduct that is inconsistent with the agreement. Likewise, the conduct must demonstrate that the accused has severed all connections with the criminal venture. Withdrawal after performance of the overt act is an ineffective withdrawal, but the accused is not liable for offenses committed by the remaining conspirators after withdrawal.[13]
If your client is present during discussions of a conspiracy, but refuses to participate or go to the location of the overt act, then that might constitute effective withdrawal.[14] Nonetheless, mere inactivity alone may not be enough.[15] Look for evidence that the client was severing ties with the criminal venture.
§ 2:9 – Standard Instructions
Standard Instructions
DA Pamphlet 27-9
3-1-1 – Principals- Aiding, Abetting, Counseling, Commanding, or Procuring
3-1-2 – Joint Offenders
§ 2:10 –Maximum Punishments
The maximum punishment under Article 77 is the maximum punishment for the pertinent offense.
[1] MCM, pt. IV, para. 1b(5).
[2] MCM, pt. IV, para. 1b(2)(a).
[3] United States v. Perry, 27 M.J. 796 (A.F.C.M.R. 1988).
[4] United States v. Minor, 11 M.J. 608 (A.C.M.R. 1981).
[5] United States v. Browning, 54 M.J. 1 (C.A.A.F. 2000).
[6] United States v. Pritchett, 31 M.J. 213 (C.M.A. 1990).
[7] United States v. Thompson, 50 M.J. 257 (…1999).
[8] United States v. Speer, 40 M.J. 230 (C.M.A. 1994).
[9] United States v. Mitchell, 66 M.J. 176 (C.A.AF. 2008); United States v. Gosselin, 62 M.J. 349 (2006); United States v. Bolden, 28 M.J. 127 (C.M.A. 1989).
[10] United States v. Jackson, 19 C.M.R. 319 (C.M.A. 1955); MCMM, pt IV, para 1(b)(4).
[11] United States v. Heyward, 22 MJ 35 (CMA 1985).
[12] United States v. Vidal, 23 MJ 319 (CMA 1987).
[13] MCM, pt. IV, ¶ 5c(6).
[14] United States v. Miasel, 24 C.M.R. 184 (C.M.A. 1957).
[15] United States v. Rhodes, 28 C.M.R. 427 (A.B.R. 1959), aff’d 29 C.M.R. 551 (C.M.A. 1960)
Elements
§ 2:2
Discussion
§ 2:3
Establishing Liability as an Aider and Abettor
§ 2:4
Presence at the Scene of the Crime and Failure to Stop the Offense
§ 2:5
Pleading Issues
§ 2:6
Common Defenses
§ 2:7
Lack of Specific Intent
§ 2:8
Withdrawal
§ 2:9
§ 2:10
Standard Instructions
Maximum Punishments
§ 2:1 – Elements
(1) That the accused committed a punishable offense or aided, abetted, counseled, commanded, or procured the commission of the act; or,
(2) That the accused caused an act to be done which if directly performed by him would be a punishable offense.
§ 2:2 – Discussion
The UCMJ basically creates two categories of principals – those who perpetrate an offense and those who aid and abet. The principal is criminally liable for all offenses likely to result as a natural and probable consequence of the offense directly intended.[1]
A perpetrator actually commits the offense by his or her own hand or by knowingly or intentionally “inducing or setting [the offense] in motion. For instance, an accused may perpetrate an offense when he directs another individual to take an unsecured item from a public setting. The accused would be liable whether the individual he directed to take the item possessed the requisite mens rea to commit a larceny. The relevant inquiry is whether the accused had a criminal intent.[4]
Principals are held independently liable regardless of whether the perpetrator is identified or even convicted.
If an accused is not liable for a crime as a perpetrator, then liability must attach under either an “aider and abettor” theory or a co-conspirator theory. Conspiracies are discussed under Chapter 6. Article 77, however, does contemplate the vicarious liability of co-conspirators. In Browning, the Court of Appeals for the Armed Forces held that though a conspiracy was not charged, the prosecution could prove the charged offenses of larceny and fraud under a perpetrator, aider and abettor, or co-conspiracy theory.[5]
In terms of aider and abettor theories, in Pritchett, the Court of Military Appeals outlined the following elements to establish liability:
- That the aider and abettor had the specific intent to facilitate the commission of a crime by another;
- Guilty knowledge on the part of the accused;
- That an offense was being committed by someone; and,
- That the accused assisted or participated in the commission of the offense.[6]
The actus reus for an aider and abettor requires the accused to assist, encourage, advise, instigate, counsel, command or procure a punishable act. The law requires, as a threshold matter, an affirmative act.[7] Generally, an accused can be found liable as an aider and abettor whenever he or she participates in the criminal venture.[8]
The mens rea for an accomplice requires “proof that the accomplice shared in the perpetrator’s criminal purpose and intended to facilitate the intent of the perpetrator with respect to the commission of the offense.”[9] It is important to note that an accomplice can be held liable for either a greater degree of offense or lesser offense depending on his or her degree of intent.[10]
§ 2:4 – Presence at the Scene of the Crime and Failure to Stop the Offense
Presence at the scene of an offense is not required for an accused to be held liable as a principal. Good examples are the recent Stryker 5 murder cases out of Fort Lewis. The government proceeded on an accomplice liability theory against the squad leader in United States v. Gibbs because, though he was not at the scene of the first murder, he provided an unaccounted for grenade that the principals used in committing murder.
On the same token, mere presence at the scene of a crime does not inherently make an accused a principal. (MCM, pt. IV, para 1(b)(3)(b). United States v. Shelly, 19 M.J. 325 (C.M.A. 1985). United States v. Waluski, 21 C.M.R. 46 (C.M.A. 1956). The relevant inquiry is found in the Pritchett test – though presence at the scene may be considered in establishing liability.
Under Article 77, the failure to stop a crime does not establish liability as an aider and abettor unless there was an affirmative duty to interfere with the commission of the offense. Generally, the failure to report an offense is not a crime either. The government, however, can carve out certain exceptions. There may be a duty to report any unlawful dissemination of national security information. (18 USC § 793). Under some circumstances, the failure to report or stop a crime could constitute a dereliction of duty.[11]
§ 2:5 – Pleading Issues
Under Rule for Courts-Martial 307 (c)(3), all principals are charged as perpetrators. The prosecution is not required to choose between perpetrator or aider and abettor theories.[12] Likewise, the judge is free to instruct under either theory – even if the government never presented the theory.
An aider and abettor is not relieved of criminal liability merely because the perpetrator fails to complete the offense.
§ 2:6 – Common Defenses
-Lack of specific intent
-Withdrawal
§ 2:7 - Lack of Specific Intent
In every case, defense counsel should immediately examine the client’s specific intent. Benchbook instruction 5-17 “Evidence Negating Mens Rea” is helpful, particularly in cases where there is no lack of mental responsibility defense. Expert witnesses can often help defense counsel examine the accused’s mental condition before and after the alleged offenses.
Defense counsel will want to pay careful attention to:
-Mental diseases (e.g. mood disorders, psychotic disorders, etc.)
-Mental defects (e.g. traumatic brain injury)
-Mental impairments (e.g. alcohol or drug abuse)
-Mental conditions (e.g. traumatic events – heat of sudden passion)
-Mental deficiency (e.g. low intelligence)
-Character or behavior disorder (e.g. Asperger’s Syndrome, personality disorders)
-Any evidence of consent, where applicable
§ 2:8 - Withdrawal
Another common defense is the defense of withdrawal. Simply stated, an individual avoids criminal liability if he or she withdraws before the alleged overt act is committed. The withdrawal must consist of some affirmative conduct that is inconsistent with the agreement. Likewise, the conduct must demonstrate that the accused has severed all connections with the criminal venture. Withdrawal after performance of the overt act is an ineffective withdrawal, but the accused is not liable for offenses committed by the remaining conspirators after withdrawal.[13]
If your client is present during discussions of a conspiracy, but refuses to participate or go to the location of the overt act, then that might constitute effective withdrawal.[14] Nonetheless, mere inactivity alone may not be enough.[15] Look for evidence that the client was severing ties with the criminal venture.
§ 2:9 – Standard Instructions
Standard Instructions
DA Pamphlet 27-9
3-1-1 – Principals- Aiding, Abetting, Counseling, Commanding, or Procuring
3-1-2 – Joint Offenders
§ 2:10 –Maximum Punishments
The maximum punishment under Article 77 is the maximum punishment for the pertinent offense.
[1] MCM, pt. IV, para. 1b(5).
[2] MCM, pt. IV, para. 1b(2)(a).
[3] United States v. Perry, 27 M.J. 796 (A.F.C.M.R. 1988).
[4] United States v. Minor, 11 M.J. 608 (A.C.M.R. 1981).
[5] United States v. Browning, 54 M.J. 1 (C.A.A.F. 2000).
[6] United States v. Pritchett, 31 M.J. 213 (C.M.A. 1990).
[7] United States v. Thompson, 50 M.J. 257 (…1999).
[8] United States v. Speer, 40 M.J. 230 (C.M.A. 1994).
[9] United States v. Mitchell, 66 M.J. 176 (C.A.AF. 2008); United States v. Gosselin, 62 M.J. 349 (2006); United States v. Bolden, 28 M.J. 127 (C.M.A. 1989).
[10] United States v. Jackson, 19 C.M.R. 319 (C.M.A. 1955); MCMM, pt IV, para 1(b)(4).
[11] United States v. Heyward, 22 MJ 35 (CMA 1985).
[12] United States v. Vidal, 23 MJ 319 (CMA 1987).
[13] MCM, pt. IV, ¶ 5c(6).
[14] United States v. Miasel, 24 C.M.R. 184 (C.M.A. 1957).
[15] United States v. Rhodes, 28 C.M.R. 427 (A.B.R. 1959), aff’d 29 C.M.R. 551 (C.M.A. 1960)
