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Home > Manual of Model Criminal Jury Instructions (2010) > 5. Responsibility >
5.1 Aiding and Abetting

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5.1 AIDING AND ABETTING

5.1 AIDING AND ABETTING

A defendant may be found guilty of [specify crime charged], even if the
defendant personally did not commit the act or acts constituting the crime but
aided and abetted in its commission. To "aid and abet" means intentionally to
help someone else commit a crime. To prove a defendant guilty of [specify crime
charged] by aiding and abetting, the government must prove each of the following
beyond a reasonable doubt:

First, someone else committed [specify crime charged];

Second, the defendant aided, counseled, commanded, induced or procured that
person with respect to at least one element of [specify crime charged];

Third, the defendant acted with the intent to facilitate [specify crime
charged]; and

Fourth, the defendant acted before the crime was completed.

It is not enough that the defendant merely associated with the person committing
the crime, or unknowingly or unintentionally did things that were helpful to
that person, or was present at the scene of the crime. The evidence must show
beyond a reasonable doubt that the defendant acted with the knowledge and
intention of helping that person commit [specify crime charged].

A defendant acts with the intent to facilitate the crime when the defendant
actively participates in a criminal venture with advance knowledge of the crime
[and having acquired that knowledge when the defendant still had a realistic
opportunity to withdraw from the crime].

The government is not required to prove precisely which defendant actually
committed the crime and which defendant aided and abetted.

Comment

Use this instruction with an instruction on the elements of the underlying
substantive crime.

The Supreme Court has stated that the federal aiding and abetting statute has
two primary components : "a person is liable under §　2 if (and only if) he (1)
takes an affirmative act in furtherance of that offense, (2) with the intent of
facilitating the offense’s commission." Rosemond v. United States,134 S. Ct.
1240, 1245 (2014). The defendant’s conduct need not facilitate each and every
element of the crime; a defendant can be convicted as an aider and abettor even
if the defendant’s conduct "relates to only one (or some) of a crime’s phases or
elements." Id. at 1246–47. The intent requirement is satisfied when a person
actively participates in a criminal venture with advance knowledge of the
circumstances constituting the elements of the charged offense. Id. at 1248–49;
see also United States v. Goldtooth, 754 F.3d 763, 769 (9th Cir. 2014)
(reversing defendants’ convictions for aiding and abetting robbery on Indian
reservation because there was no evidence that defendants had foreknowledge that
robbery was to occur).

In Rosemond, the defendant was charged with aiding and abetting the crime of
using a firearm during and in relation to a drug-trafficking crime in violation
of 18 U.S.C. §　924(c). The Supreme Court held that the government need not
necessarily prove that the defendant took action with respect to any firearm, so
long as the government proves that the defendant facilitated another
element—drug trafficking. Rosemond, 134 S. Ct. at 1247. It was necessary,
however, that the government prove that the defendant had advance knowledge of
the firearm. Id. at 1249–50. See Instruction 8.71 (Firearms—Using or Carrying in
Commission of Crime of Violence or Drug Trafficking Crime).

If, as in Rosemond, there is an issue as to when the defendant learned of a
particular circumstance that constitutes an element of the crime, the judge
should further instruct the jury that the defendant must have learned of the
circumstance at a time when the defendant still had a realistic opportunity to
withdraw from the crime. See Rosemond, 134 S. Ct. at 1251–52 & n.10 (instruction
telling jury to consider whether Rosemond "knew his cohort used a firearm" was
erroneous because instruction "failed to convey that Rosemond had to have
advance knowledge .　.　. that a confederate would be armed" such that "he c[ould]
realistically walk away").

Aiding and abetting is not a separate and distinct offense from the underlying
substantive crime, but is a different theory of liability for the same offense.
United States v. Garcia, 400 F.3d 816, 820 (9th Cir. 2005). An aiding and
abetting instruction is proper even when the indictment does not specifically
charge that theory of liability , because all indictments are read as implying
that theory in each count. United States v. Vaandering, 50 F.3d 696, 702 (9th
Cir. 1995); United States v. Armstrong, 909 F.2d 1238, 1241-42 (9th Cir. 1990);
United States v. Jones, 678 F.2d 102, 104 (9th Cir. 1982). See also United
States v. Gaskins,849 F.2d 454, 459 (9th Cir. 1988); United States v.
Sayetsitty, 107 F.3d 1405, 1412 (9th Cir. 1997).

A person may be convicted of aiding and abetting despite the prior acquittal of
the principal. Standefer v. United States, 447 U.S. 10, 20 (1980); United States
v. Mejia-Mesa, 153 F.3d 925, 930 (9th Cir. 1998). Moreover, the principal need
not be named or identified; it is necessary only that the offense was committed
by somebody and that the defendant intentionally did an act to help in its
commission. Mejia-Mesa, 153 F.3d at 930 (citing Feldstein v. United States, 429
F.2d 1092, 1095 (9th Cir. 1970)).

The defendant’s deliberate ignorance of the actions taken by another person who
commits a crime is sufficient to satisfy the knowledge required for the offense
of aiding and abetting that crime. United States v. Nosal, 844 F.3d 1024,
1039-40 (9th Cir. 2016) (approving an instruction that the defendant acted
"knowingly" if he "was aware of a high probability that [other employees] had
gained unauthorized access to a computer . . . or misappropriated trade secrets
. . . without authorization . . . and deliberately avoided learning the
truth."). For a definition of "deliberate ignorance," see Instruction 5.8
(Deliberate Ignorance).

No specific unanimity instruction on the issue of who acted as principal or
aider and abettor is necessary, id., nor does the jury need to reach unanimous
agreement on the manner (e.g., "procured," "aided," "abetted," "counseled,"
"induced," or "commanded") by which the defendant provided assistance. United
States v. Kim, 196 F.3d 1079, 1083 (9th Cir. 1999).

The last paragraph of this instruction has been expressly approved in
Vaandering, 50 F.3d at 702. It may be unnecessary to give the last paragraph if
there is no dispute as to the identity of the principal and the aider and
abettor.　　

Approved 9/2019

File: 
5.01_criminal_rev_9-2019.wpd [1]


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