US Criminal – Feb 3

Textbook (579-650)

Chapter 21: Accomplices

A. DOCTRINE
 At common law, perpetrator divided into 2 categories: principals and accessories and
then sub-divided into smaller categories based on distinctions
 First-degree principals: physically performed the actus reus of crime
 Second-degree principals: present at the scene of the crime and “aiding and abetting”
the fact to be done
 Accessories before-the-fact: distant from the scene of crime but still “concerned” in its
commission prior to the act
 Accessories after-the-fact: provide assistance after the crime’s commission (ex. helping
dispose of the body)
 Accomplice: covers everything referred to as a second-degree principal and below (i.e.
everyone by the physical perpetrator of the crime)
o When an accomplice assists in commission of an offense, they become
derivatively responsible for that crime even though someone else committed it
o They can be punished just as hardly as the principal perpetrators they assist
o Accomplice liability referred to as a form of “complicity” because defendant is
complicit in the criminality by virtue of his association with the criminal endeavor
o You can hold someone responsible for a crime based on their complicity in it and
the law requires:
 1. Assistance/support to principal perpetrator
 2. Performed with purpose/knowledge to facilitate the crime
 1. Assistance or Support: act requirement for accomplice liability includes more obscure
types of support such as counselling, encouraging, advising…
o An accomplice is criminally responsible because he performs an affirmative act to
support the principle
o By being a mere bystander will not usually constitute encouragement because
courts evaluate these situations as omissions
o Assistance requirement does not require a strong causal connection between the
accomplice’s assistance and the crime committed by the principal perpetrator – if
the jury finds that principal would’ve found a way to complete the crime even in
absence of accomplice’s assistance, the accomplice could still be convicted
 2. Purpose versus Knowledge: accomplice must intent to aid/assist the principals
perpetration of the crime
o Language of intent is ambiguous – can either mean knowledge or purpose
depending on the circumstance
o In describing the purpose standard, an accomplice is someone who in some sort
associates himself with the venture that he participate in it as in something that
he wishes to bring about, that he seek by his action to make it succeed
 o MPC supports the purpose standard: a person is an accomplice of another
person in the commission of an offense if a) with the purpose of promoting or
facilitating the commission of the offense”
o Purpose/knowledge standard applies to conduct
o With regard to results, law of accomplice liability requires that prosecution
demonstrate that defendant acted with the mens rea that is required for the
principal perpetrator
 3. Natural and Probable Consequences Doctrine: jurisdictions split on if an accomplice
provides assistance to the principal perpetrator with an eye toward the commission of
one crime but the principal accomplishes a different crime
o Some jurisdictions say that if the resulting crime was a natural and probable
consequence of the target offense, then that accomplice was assisting
o Other jurisdictions including MPC, reject the doctrine as an overly expansive
form of guilt by association
 4. Innocent Instrumentality Rule: general rule is that perpetrator who performs the actus
reus of crime (firing gun in murder case), is the principal while the criminal who remains
“ behind the scenes” is a mere accomplice BUT there’s one exception:
o Situations involving an innocent instrumentality (a child or an insane person)
o The innocent individual is a mere instrument – analogous to a gun or other
murder weapon, deployed by the true perpetrator behind the scenes
o The instrumentality must remain non-culpable for the doctrine to apply
o A culpable individual is a free agent and not a “true instrument” so if the
instrument is a free agent responsible for committing a crime, the behind-the-
scenes perpetrator must be classified as an accomplice
 5. Defenses: accomplices have argued that they cannot be convicted because principal
was acquitted but complicity is a doctrine of derivative liability
o Accomplice inherits the guilt that attaches to the principal perpetrator
o There is no requirement that separate jury verdicts in separate trials must be
consistent – so they may convict the accomplice but acquit the principal
o More straightforward defense is withdrawal or renunciation of the crime –
accomplice must either deprive his complicity of its effectiveness, contact the
police or prevent the crime
 Most jurisdictions require that withdrawal be voluntary rather than
motivated by fear of apprehension
B. APPLICATION
 Assisting the Principal Perpetrator – State v. VT
o VT and 2 friends (M/J) went to a relatives apartment to avoid being picked up by
police for curfew violations and spent the entire night at the apartment
o In the morning, the boys left the apartment, leaving the door wide open and
relative found 3 of her guns missing and she found the boys and confronted them
and demanded her return for the guns – when they didn’t, she reported theft to
the police
 o 2 days later, she also discovered that her camcorder which missing and reported
it again to the police – they found it in a pawn shop and there was a video
wherein they were speaking about the stolen camcorder
o VT was picked up by the police tried under an accomplice theory on 3 theft
charges
o State argues that VTs continued presence during the theft and subsequent phone
conversations about selling camcorder along with his friendship with M/J is
enough evidence to support the inference that he had encouraged the other two
into committing theft and is therefore an accomplice to the crime
o However, case law in Utah says that mere presence or prior knowledge doesn’t
make one an accomplice… - something more than defendants passive presence
during planning/commission of crime is required to constitute encouragement
o This guilt by association theory is not a basis on which accomplice liability can be
premised under Utah law
o In most cases, courts would treat silence as an omission and apply the regular
rules on omissions on the act requirement
 Purpose versus Knowledge – Rosemond v. United States
o Perez arranged to sell a pound of weed to 2 people and drove to a local park to
make the exchange accompanies by 2 confederates, J and Rosemond
o While one of the 2 people were inspecting the drugs in the backseat, they
punched either J or R (unknown who was sitting in the back), and fled with the
drugs
o One of the males (J/R) exited the car and fired several shots and then re-entered
the car and all 3 drug dealers gave chase after and police pulled their car over
o Government prosecuted on charge that R used the firearm during drug
transaction and even if it was J that fired the gun, R aided/abetted
o A person aids/abets a crime when he intends to facilitate that offenses
commission
o An active participant in a drug transaction has the intent needed to aid/abet a
violation when he knows that one of his confederates will carry a gun
o Defendants knowledge of a firearm must be advance knowledge, or otherwise
said, knowledge that enables him to make the relevant legal/moral choice
o An accomplice who knowingly joins in an armed drug transaction – regardless
whether he was formerly indifferent or resistant to using firearms – the law does
not care whether he participates with a happy heart or sense of foreboding
because either way, he has the same culpability
 Either way he has knowingly elected to aid in the commission of a risky
offense
o Juries are entitled to infer purpose from knowledge – in some circumstances, the
fact that an actor knew their behaviour would facilitate the principal
perpetrator’s commission of the crime is sufficient for the fact finder to infer that
the accomplice acted with purpose as well
 o Criminal facilitation: a person is guilty of criminal facilitation in the fourth degree
when, believing it probable that he is rendering to aid to a person who intends to
commit a crime, he engages in conduct which provides such person with means
or opportunity for the commission thereof and which in fact aids such person to
commit a felony
o Jurisdictions with a purpose/intent requirement for complicity sometimes refer
to the community of purpose between accomplices and principals in their
criminal endeavor
 The Natural and Probable Consequences Doctrine – Waddington v. Sarausad
o Drive-by shooting was the culmination of a gang dispute and in the midst of it, 2
students were killed
o Sarausad was tried as an accomplice, and argued at trial they he couldn’t have
been an accomplice because he had no idea that the shooter had armed himself
and were shocked when the shooter started shooting at a group of students
o An accomplice who knows of one crime is not guilty of a greater crime if he has
no knowledge of that greater crime – so, it was error to instruct a jury that an
accomplice’s knowledge of a crime was sufficient to establish accomplice liability
for the crime
o It was not objectively unreasonable for the courts to conclude that the jury
convicted S only because it believed that he had knowledge of more than just a
fistfight
o Prosecution can only convict an accomplice of murder under the doctrine if the
accomplice already knew he was assisting some type of homicide offense
o Rejected the doctrine
 The Natural and Probable Consequences Doctrine – People v. Prettyman
o Defendant was charged with crime of murder and that she was guilty as an
accomplice
o Defendant beat the victim to deal with a steel pipe and the other defendant B,
encouraged P to kill the victim
o At common law, a person encouraging/facilitating the commission of a crime
could be held criminally liable not only for that crime, but for any other offense
that was a natural and probable consequence of the crime aided/abetted
o When a particular aiding and abetting case triggers application of the natural and
probable consequences doctrine, the judge must find that the defendant acting
with knowledge of the unlawful purpose of perpetrator, intent or purpose of
committing/encouraging the commission of offense, by act or advice aided the
commission of the target crime
o To convict a defendant of a crime under this doctrine, the jury doesn’t need to
unanimously agree on the particular target crime the defendant aided/abetted
o The doctrine can be understood subjectively or objectively
 Subjective: accomplice must be aware of possibility and provide the
assistance anyway
  Objective: accomplice is guilty is a reasonable person in the defendants
position would have or should have known that nontarget offense was a
reasonable foreseeable consequences of the act aided and abetted by the
defendant
o If accomplice assists the principal in his perpetration of the target crime but
principal then commits an unrelated crime years later, the accomplice is not
responsible for that crime even under the natural and probable consequences
doctrine
 Innocent Instrumentality Rule – Bailey v. Commonwealth
o Death of victim occurred in the aftermath of an extended conversation between
B and the victim over their citizens’ band radios – both threatened each other
o Both were intoxicated, bailey knew that M owned a handgun and had boasted
about how he would use it to scare people
o M and B went back and forth and M threatened to kill B and then B made calls to
the police reporting M
o Officers came and M shot at an officer and missed and other officers shot back
and struck him
o This court adopted the rule that one who effects a criminal act through an
innocent or unwitting agent is a principal in the first degree – knowing that M
was intoxicated, nearly blind and in an agitated state of mind, B orchestrated this
scenario which ended in harmful consequences to M
o The sum total of Baileys actions that his purpose in calling the police was to
induce them to go to Ms house and create the appearance the B himself had
arrived to carry out the threats
o It was the officers that went to Ms home that were acting as Bailey’s innocent or
unwitting agents
o The fatal consequences of Baileys reckless conduct could reasonably have been
foreseen and Ms death was not a result of an independent, intervening cause but
of Baileys misconduct
 Defenses – Standefer v. United States
o Indictment charged that S as head of a tax department had authorized payments
for 5 vacation trips to Cyril N who then was the internal revenue service agent in
charge of the audits of Gulf’s federal income tax returns (company)
o Court held that a defendant accused of aiding/abetting in the commission of a
federal offense may properly be convicted despite the prior acquittal of the
alleged actual perpetrator of the offense
o All participants in conduct violating a federal criminal statute are principals and
as such they are punishable for their criminal conduct, the fate of other
participants being irrelevant
o SC recognized that the guilt of the accomplice was logically tied to the guilt of the
principal – it just preserved the right of the second jury to make an independent
judgement about the guilt of the principal
C. PRACTICE AND POLICY
  Constitutional constraints on punishing accomplices: federal and state statutes typically
allow accomplices to be punished just as harshly as principals – they sometimes believes
that the criminal labeled as accomplice is actually more culpable than the principal
perpetrator
 Victims as accomplices: there is something off about charging a victim with being an
accomplice to her own victimization – MPC has a specific provision to bar such
prosecutions and provides that “a person is not an accomplice in an offense committed
by another person if: a) he is a victim of that offense…”
o Criminal provision is designed to protect a vulnerable class of individuals from
some predatory or inappropriate conduct and it would be counter to public
policy to penalize the protected class, even if they were participants in the
endeavor
 Purpose versus knowledge in human rights: legal issue is key because the purpose
standard for accomplice liability is far more defense friendly, while the knowledge
standard is far more plaintiff friendly

Chapter 22: Conspiracy Liability

A. DOCTRINE
 Conspiracy is an agreement between two or more individuals to commit an unlawful act
o It can be both an inchoate offense and a mode of liability
 1. Pinkerton Liability: liability would not attach if the co-conspirator committed a crime
that was not reasonably foreseeable to the defendant
o Language of reasonable foreseeability became the standard for the Pinkerton
liability
o Conspirators are liable for crimes committed by co-conspirators that either:
 1. Form part of the conspiratorial agreement
 2. Stray beyond the conspiratorial agreement but were nonetheless a
reasonably foreseeable consequence of that agreement
 2. Scope of the Conspiracy: if defendant is responsible for his own acts AND acts of his
co-conspirators, its essential to identify the temporal/geometric scope of conspiracy
o Wider the conspiracy, greater the liability defendant will face
o Courts are generally willing to aggregate overlapping conspiracies to a single
overarching conspiracy when the defendant must have been aware that the
endeavor involved other persons/transactions who are part of the agreement
even if the defendant never corresponded/met other participants
 3. Withdrawing from a Conspiracy: acts already performed by co-conspirators cannot be
disowned but the link to future acts could be severed if the defendant successfully
withdraws from the conspiracy
o Standard for withdrawal varies from jurisdictions but most require that
defendant perform an affirmative act to disavow or defeat conspiracy
 1. Informing authorities of criminal endeavor
 2. Communicating withdrawal to the co-conspirators
 3. Dissolving the underlying agreement that forms the basis of conspiracy
 o Defendant must take some AFFIRMATIVE step to withdraw; simply refraining
from actively pursuing the objectives of conspiracy is insufficient to satisfy
requirements of withdrawal
B. APPLICATION
 Pinkerton Liability – United States v. Alvarez
o A cocaine deal turned into tragedy when a shoot-out erupted between the
dealers and 2 undercover agents – during shoot-out, one of the agents was killing
and the other agent along with the dealers were seriously wounded
o Appellants convicted with charges arising from cocaine deal and shoot-out and
they appeal their convictions through several claims and state that their murder
convictions were based on an unprecedented and improper extension of
Pinkerton
o Under Pinkerton, each member of a conspiracy is criminally liable for any crime
committed by a coconspirator during the course and in furtherance of the
conspiracy unless the crime didn’t fall within the scope of the unlawful project…
o Appellants argue that murder is not a reasonably foreseeable consequence of a
drug conspiracy
o There is several evidence to support the jury’s conclusion that the murder was a
reasonably foreseeable consequence of the drug conspiracy alleged in
indictment
 Drug conspiracy was no nickel-and-dime operation; under any standards,
the amount of drugs and money involved was quite substantial
 Based on the amount of drugs and money involved, the jury
was entitled to infer that, at the time the cocaine sale was arranged, the
conspirators must have been aware of the likelihood (1) that at least
some of their number would be carrying weapons, and (2) that deadly
force would be used, if necessary, to protect the conspirators’ interest
o The court did not err by submitting the Pinkerton issue to the jury
o All 3 appellants had actual knowledge of at least some of the circumstances and
events leading up to the murder
o The individual culpability of the appellants was sufficient to support their murder
convictions under Pinkerton, despite the fact that the murder was not within the
originally intended scope of the conspiracy
o Pinkerton’s notion of reasonable foreseeability can be understood in 2 ways:
 Subjectively:
 Fact finder should ask whether the outcome was objectively
foreseeable from the perspective of a reasonable person in similar
circumstances
 Defendant must have been aware of the risk yet consciously
disregarded it and participated anyway—a mental state akin to
recklessness
 Objectively:
  Fact finder should ask whether the outcome was objectively
foreseeable from the perspective of a reasonable person in similar
circumstances
 Defendant must have been aware of the risk yet consciously
disregarded it and participated anyway—a mental state akin to
recklessness
o Criticism of Pinkerton is that the expansive version of the doctrine makes liability
for intentional crimes such as murder, possible based on a defendants lower
mental state including mere negligence
o Conspiracy liability requires an underlying agreement
o Accomplice liability MAY involve an underlying agreement but need not
 Scope of the Conspiracy – People v. Bruno
o Bruno was indicted with 86 others for a conspiracy to import, sell and possess
narcotics
o Evidence allowed jury to find that there had existed over a substantial period of
time a conspiracy embracing several people whose object was to smuggle
narcotics and distribute them to addicts
o Defendants assert that there were at least 3 separate conspiracies and not just 1
 Scope of the Conspiracy – Kotteakos v. United States
o Defendants had sought to induce various financial institutions to grant credit,
with the intent that the loans/advances would then be offered to the Federal
Housing Administration for insurance upon applications containing false and
fraudulent information
o Petitioners sought review of a judgement that convicted them of a single count
of general conspiracy
o The proof made out a case, not of a single conspiracy but of several,
notwithstanding only one was charged in the indictment
o The court held that the error affected petitioner’s substantial right to not be tried
en messe for the conglomeration of distinct and separate offenses committed by
others
o The judgement of conviction was reversed and remanded
o Bruno case involved a large narcotics distribution right with multiple smugglers
and retailers – each had to know that there were others involved in the
operations even if they had never met their supposed confederates – the
separate spokes were connected because each retailer knew that the wheel had
other spokes (single conspiracy)
o Kotteakos case involved a series of conspiracies overlapping with a common
criminal and there was no reach for each conspirator to believe that Brown
required other confederates to complete his transactions; he did have other
confederates but this was a contingent fact – not a necessary fact
o For a court to hold a single conspiracy existed between its members (Bruno), the
court must conclude that there was an agreement or association among them
rather than a common purpose between them which is legally insufficient
 o Conspiracy expires when the conspiratorial objective is achieved; i.e. the target
offense is successfully completed
 Withdrawal – United States v. Schweihs
o Wemette owned an adult video store and he paid street tax to protect himself
and their business from harm – the street collector that he was doing business
with informed him that if he didn’t pay the tax, then the business would be shut
down due to an accident or a fire
o S arranged for a new person to begin collecting the street tax payments
o Wemette contacted the FBI about the street tac payments and agreed to work
undercover for the FBI and record his conversation with S
o S asked Wemette for information about his business
o A defendant is entitled to an instruction on any defense recognized in law and
supported by sufficient evidence to allow a reasonable jury to find in the
defendants favor
o Withdrawal requires more than a mere cessation of activity on the part of the
defendant; it requires some affirmative action which disavows/defeats the
purpose of the conspiracy
o Daddino did not withdrawn from the conspiracy and Ss statements during the
court and in furtherance of the conspiracy were admissible as statements of a
coconspirator
C. PRACTICE AND POLICY
 Conspiracy as procedure and substance: in practice, the conspiracy doctrine does triple
duty
o 1. It is a substantive offense based on the existence of the underlying agreement
o 2. It is a mode of liability to connect a defendant to the crimes committed by
coconspirators
o 3. It provides an exception to the hearsay rule in evidence law that usually
prevents witnesses from testifying about statements uttered by third parties for
the purpose of established the truth of the matter
o To determine whether the exception to the hearsay rule applies, judge must first
determine whether a conspiracy existed BUT the jury is the ultimate decider
 Joint criminal enterprise: this doctrine allows prosecutors to charge defendants with
perpetrating atrocities even if the crimes were personally committed by other
individuals, as long as the defendant participated in a common plan or endeavor to carry
out the crimes
o All participants in a common criminal action are equally responsible if they (i)
participate in the action, whatever their position and the extent of their
contribution, and in addition (ii) intend to engage in the common criminal action
 They are all to be treated as principals, although of course the varying
degree of culpability may be taken into account at the sentencing stage
o JCE doctrine has 3 variants:
  1. Defendant is prosecuted for crimes that fall within the scope of the
original criminal purpose/plan and defendant shared the intent that the
group carry out the crime
 2. Defendant is prosecuted for participating in a system of mistreatment
that leads to the commission of international crimes
 3. Defendant is prosecuted for crimes that fall outside the scope of the
original criminal plan, as long as those crimes were a reasonably
foreseeable consequence of the common plan/purpose
o JCE doctrine faces some criticisms: it subjects some defendants to prosecution
based on negligence or recklessness for crimes that should require higher levels
of intent (i.e. knowledge or purpse)
 Doctrine allows courts to prosecute minor players in large conspiracies for
the full weight of the criminality performed by the collective organization

LECTURE

Accomplice Liability

Assistance
 When you assist another person in the commission of a crime, that makes you an
accomplice
 Comes in 3 different forms: physical conduct, psychological influence or encouragement,
omission (failure to do something you have a duty to do)
 In American criminal law, there is aiding and abetting – there is no distinct crime called
this
o Once you aid and abet (provide assistance), you are guilty of the crime as if you
had personally committed it, just as primary (principal) is guilty of the crime
 Accomplices’ liability derives from the principal’s liability in the commission of the
offense

Common Law Distinctions (don’t have to know these, NOT EXAMINABLE)

 Four forms of liability under the common law:
 1. Principal in the first degree
o Person who actually committed the offense
 2. Principal in the second degree
o Person who assisted in the commission of offense and were PRESENT during
commission of offense
 3. Accessory before the fact
o Person who assisted but was not actually present during commission
 4. Accessory after the fact
o Person who assisted in avoiding capture or conviction of offense
o May still see this language today, but we have created statutes to deal with this
problem
Modern Approach
 Today, most jurisdictions have done away with the common law categories and we speak
of principals and accomplices (those who would have been anything other than the
principal in the first degree)
 The accomplice is derivatively guilty for any offense committed by the principal, and
punished just as if the accomplice wat the actual perpetrator. Some statutes even say
that accomplices are treated as principals (see 18 USC 2)
o Accomplice treated as a principal – general rule

Actus Reus
 The actus reus of accomplice liability is assistance
o Aiding, counselling, commanding, entreating, supporting, encouraging – even
trivial levels of assistance are sufficient to make one an accomplice
 Many modern laws refer to aiding and abetting
o Just remember that there is no separate offense of aiding and abetting – if you
aid and abet, you are guilty of the substantive crime, not some separate offense
of aiding and abetting
 Mere bystander is not enough, unless accompanied by aid or encouragement
o There must be affirmative aid or encouragement – must have more than mere
 State v. VT
o When the boys took camcorder to pawn shop, they didn’t remove the tape in
which they are recorded on video
o State has prosecuted VT as accomplice to theft saying that he encouraged the
offense
o Utah COA said that all they could find was mere passive behaviour, not any kind
of affirmative encouragement; must be something more than just being present
 If he had spoken in some way (we don’t have evidence of that), that VT
encouraged the theft or assisted it in some way, then he would be guilty
as an accomplice
o There is no evidence of such produced in showing that he aided the other two in
the theft – there is only passive presence on part of VT
 Assistance can be trivial, doesn’t have to be anything significant
 Omission can be sufficient for accomplice liability as long as there is a duty to act
 What if the assistance is ineffectual?
o Even if it is trivial, it doesn’t have to cause the commission of the crime
 Willcox v. Geoffrey
o W runs a jazz music magazine and is charged as an accomplice for violation of
aliens order
o W attended a concert and paid for a ticket, and no evidence that he applauded
but wrote an article that praised the concert
o Aliens order designed to prevent non-Britans from coming over to Britain and
gaining employment without authorization
 o W aided the offense because he attended concert and paid for ticket and wrote
article – court said this WAS enough assistance
o The case may have been different if he attended the concert and protested or
boo’d but did he not – was treated as an encourager
o Presence can be a form of encouragement but if that is true, then everyone who
was there must be guilty; seems flimsy
 Must be something more there with respect to Wilcox

Mens Rea
 Accomplice liability generally requires an intent to aid/provide assistance
o In some case law (Rosemond v. United States), person must associate himself
with venture and participate in with something he wishes to bring about and
make it succeed – specific intent/purpose
o Rosemond – court gives lengthy discussion of the federal case law on accomplice
mens rea
 Court says that ordinarily, person is guilty as accomplice do an affirmative
act in aid of criminal offense and do it with the intent to facilitate the
commission of the offense
 Court adds a twist – under s.924, aider must have knowledge that a gun is
being used; must be a realistic opportunity to quit
 As in conspiracy law, this can be tricky, because sometimes courts allow knowledge and
not purpose, to suffice
o In a purpose jurisdiction, the rule is that you have to act with specific intent to
promote/facilitate completion of crime
o In a knowledge jurisdiction,
 1.Aider KNOWS his aid will promote/facilitate offense
 2. We infer specific intent from his knowledge
 Question is this: must the accomplice have the purpose (the specific intent) to facilitate
the crime? Or must she simply know that she is doing something that will assist?
 In federal court, and in MPC 2.06(3), purpose/specific intent is the standard
 What we do with knowledge is infer a purpose from that knowledge
o If you know that your behaviour is going to facilitate commission of offense, then
we can infer if offense is committed, that you intended to facilitate the
commission of offense
 Purpose or specific intent is you standard generally

Natural and Probable Consequences Doctrine

 Relation to mens rea
 The accomplice is guilty not only of the target crime, but of any other crime committed
by the principal that is the natural and probable consequence of the target crime that
the accomplice aided
 Similar to Pinkerton and Felony Murder Rule – government need not prove any mens rea
with respect to the additional crime, only the aid
 o Has a lot of the same hallmarks as FMR
o The reason it looks like these other doctrines is because you don’t have to have
any specific intent to aid the subsequent crime; you need only the intent
required to be an accomplice for the target crime but you are still guilty of the
subsequent crimes even if you didn’t intend them
o Ex. I provide assistance for a robbery for a drug deal. I service the getaway driver.
We get to the dealers house and one of my cohorts who was going to perpetrate
the robbery and also murders the drug dealer. I had no intent with respect to the
killing. Under natural and probable consequences doctrine, I am probably still
guilty of the killing
 Did I provide aid to the principal in commission of crime? Yes, provided
aid for the robbery
 Was another crime committed? Yes, a murder
 Was that murder a natural and probable consequence of the assistance
provided of the target crime? Yes, killing under drug transaction is a
natural and probable consequence, not unforeseeable
 Not everyone recognizes this, MPC does not and federal law does not – but why?
o Common law principle – so we should know this
 People v. Prettyman
o Court applied this doctrine but also added something: where prosecution relies
on doctrine, TC has to specify for jury what the target crime initially was
o This way, jury can determine whether subsequent crime was a natural and
probable consequence of the target crime
 This doctrine is posing liability on the accomplice for something the accomplice most
likely didn’t intend to happen; all accomplice intends to do is aid the target crime

Innocent Instrumentality Rule

 You are guilty of the offense if you affect a criminal act by using an innocent human
instrumentality – if you use an innocent person to commit the criminal act for you, even
though that person doesn’t know they are doing so
 Bailey v. Commonwealth
o SC said that if you effect a criminal act through an innocent human – you are the
principal
o Police were the unwilling, innocent agent
o Bailey used the police to kill the victim rather than going personally to his house
and killing him himself
o Bailey is guilty
 Many of the cases dealing with this doctrine are different than this case – situations
were person will coerce to other people to have sex with each other against their will

Defenses
 Issue that arises here is what do we do if the principal is acquitted?
 o if accomplice liability is derivative from the principal, if the principal is acquitted,
then accomplice cannot be convicted because then there is no liability from
which to derive the accomplices’ liability – makes sense logically but this isn’t the
rule
 General rule here is to allow accomplices’ to be prosecuted even if the principal is
acquitted
 Standefer v. United States
o Principal acquitted on some of the charges against him
o S’s defense was that if principal was acquitted, then I should be too
o But aider and abettor liability does not depend upon principal liability in this
court
o Although accomplice liability is derivative in theory, in practice, jury could treat
accomplice and principal differently – but this is not always true
o Justification defense – negates the idea that crime was ever committed because
the act was justified; rather than treat the act as morally blameworthy, we treat
it as morally desirable
 Lopez case
o Wanted to break his girlfriend out of prison
o Necessity was a justification, Lopez did nothing wrong by escaping because it was
out of necessity
 Difference between these 2 cases: one jury in the Lopez case
 Problem case on pg. 619
o Highschool students arrested with a cheating scandal – stealing a math exam
o Some jurisdictions will allow withdrawal; if you unwind your participation by
depriving your assistance of the crime’s effectiveness, that can be a withdrawal,
similar to abandonment
o Withdrawal is a high bar, difficult to prove
o Simply by walking away, did not counter his prior complicity; thieves were
encouraged in their endeavor by their assurance that the defendant was acting
as their lookout and they completed the crime based on their original plan

Conspiracy as a Mode of Liability

 Conspiracy can be both an offense and a way of making someone guilty of other,
substantive crimes
o Is both a separate crime, something you can charge/prosecute with, AND you can
also be guilty of crimes committed by other co-conspirators
 To do this, you must first establish that the attendant was a part of a conspiracy
o Agreement and mens rea with respect to agreement or overt act if needed
 Then, you must establish the nature/extent of the conspiracy to which the defendant
was a party
o What is the nature of the conspiracy, what is it about?
o What is the object of conspiracy?
  Then, you must determine whether the defendant can be guilty of other crimes
committed
o If there are other crimes being committed, determine whether defendant can be
guilty of those crimes as well
o Do this through the Pinkerton doctrine

Pinkerton Doctrine
 A conspirator is guilty not only of conspiracy, but of any substantive crime committed by
any other member of the conspiracy that is within the scope of the conspiracy or is
reasonably foreseeable, even if not part of agreement
o Powerful doctrine like felony murder, and probable consequences doctrine but in
conspiracy world, it is even more powerful
 Example: A and B agree to rob a bank. A will do the robbery and B will drive the getaway
car. To effectuate the robbery, B steals a car and uses it for the bank job. A does not
know the car is stolen. A robs the bank and they flee in the stolen car
o Of what is A guilty? Conspiracy, bank robbery, car theft? (Pinkerton)
 Guilty of conspiracy
 Guilty of bank robbery – personally robbed the bank; don’t need a mode
of liability of bank robbery
 Guilty of the car theft – car theft would be considered reasonably
foreseeable
 Not within the scope of the conspiracy, and wasn’t the object of
the conspiracy; as far as A knew, B was going to drive his own car
 Is it reasonably foreseeable? Yes
o Of what is B guilty? Conspiracy, bank robbery, car theft?
 Guilty of conspiracy – agreement to rob a bank
 Guilty of car theft – he personally stole the car
 Guilty of bank robbery – bank robbery was within the scope of the
conspiracy even though he didn’t personally commit it; it was the object
of the conspiracy
o Due process limits?
 Pinkerton becomes especially useful in complex conspiracies, big criminal organizations
o Because it provides leverage over the minor players in the organization and
allows you to try to get them to cooperate against the higher level/senior people
in organizations because of their exposure based on what everyone else in
conspiracy has done
o If everyone knows they are a part of the same conspiracy, then that means that
anytime any one of them commits any of those offenses, they are all on the hook
for it
o Pinkerton expands the criminal liability menu – now your defendant is on the
hook not just for conspiracy or other crimes he committed personally, but he is
now guilty of ANY other crime committed by any other member of conspiracy as
 long as that crime was within the scope of the conspiracy or it was reasonably
foreseeable
 Alvarez case
o Jury could conclude that killing was reasonably foreseeable and even though it
wasn’t within the scope of the conspiracy, Pinkerton applied because each
defendant had individual culpability and it was reasonably foreseeable
o Some courts, do recognize limits on this doctrine
 Built in limits – must have a conspiracy, must be a part of the conspiracy,
subsequent crime has to be within the scope or reasonably foreseeable
o Some courts talk about limits on minor actors – actors whose conduct was too
attenuated from the subsequent crime
o Some courts tried to make this a due process limit – this is debatable
 If the subsequent crime was too attenuated from the particular
defendant, then we won’t make them responsible for that
 Pinkerton looks a lot like accomplice liability but they are not the same
o You can be an accomplice without being a co-conspirator
 Cook Brothers case
o He was not a co-conspirator because there was no precontractual agreement

Pinkerton for Complex Conspiracies

 Now consider how Pinkerton might apply to a larger, more complex conspiracy
 Example: a criminal organization that has a hierarchy (ex. a mafia crime family). In these
organizations, the crews (those groups that commit day to day street crime) are led by
someone (ex. a captain). They often operate in different locations, often with crews in
one location who do not know exactly what is happening with crews in another location.
Suppose X commits a drug trafficking offense in Detroit. But Y, a member of a different
crew also engages in drug trafficking but also commits a murder during a drug
transaction in New York. And Z engages in drug trafficking but also commits extortion in
Las Vegas.
o Of what is X guilty of?
o Of what is the captain guilty of?
o Of what is the boss guilty of?
o Does Pinkerton liability supply advantages to prosecutors in these situations?
 For Pinkerton liability, you have to have:
o A conspiracy
o A subsequent crime beyond the conspiracy
 That subsequent crime has to be: 1) within scope of conspiracy, 2)
reasonably foreseeable
 Structure of conspiracy is important

Structure of Conspiracies
 Wheel (hub-and-spoke)
 o Center of the wheel (hub), is the nerve center of conspiracy – everyone engages
in transactions with that nerve center
o Various individuals who have agreements with the hubs, those are your spokes in
the conspiracy
o All you have is a bunch of smaller conspiracies – each of those individual spokes
has an agreement with the hub
o What do you do to tie all of them together? Something that connects all spokes
together? – must find some proof that spokes viewed their agreement with the
hub as part of a larger/broad scheme/enterprise
o Something that ties everyone together so they are all a part of one big conspiracy
 Chain
o Everyone is connected in links – several layers of people dealing with single
subject matter instead of just one person
o Often looks like business enterprises – each link plays a role in the enterprise
 Wheel-chain
o Combination of the two above
o Ex. A, a narcotic wholesaler who illegally distributes them to B/C who in turn
works for XY and distributes them to street level guys (dealers)
o Bruno Case
 Part of this was the chain
 Also looked at as a wheel
 Hub would be the middle man and middle men are connected to
retailers as spokes
 Court held that this was a single chain conspiracy with each link in chain
having a stake at larger venture
o Kotteakos Case
 Brown was a broker for 31 people for fraudulent loans
 All unconnected from each other except that they used Brown as a broker
 Loans were all independent – didn’t depend on each other, so this was a
bunch of smaller conspiracies
 In smaller conspiracies, your ability to use Pinkerton is construed
 There are as many conspiracies as there are agreements
 Is there one agreement to commit one crime, one agreement to commit multiple crimes
or multiple agreements to commit a single crime?
 Don’t have to prove mens rea in Pinkerton as through the subsequent crime
o Mere participation in the conspiracy is enough

Withdrawal
 At common law, withdrawal was not possible
o Once you form the agreement, the crime had already occurred with the
agreement
o Where withdrawal was permitted though, you cannot simply walk away
 Differs from abandonment/renunciation, but bottom line is the same – conspirator must
take affirmative act to defeat or disavow conspiracy
o How to avoid vicarious liability once you become a member of conspiracy
o In some jurisdictions, you are allowed to withdraw but you cannot just walk away
 United States v. Schweihs
o Merely ceasing participation is not enough
o Dedino walked away from a ticking bomb – no evidence to show that he wasn’t
associated with Schweihs
o Withdrawal requires proof of affirmative action by defendant and since there
wasn’t any action of this, withdrawal instruction was denied
o If you are going to withdraw, you have to take steps to disavow the conspiracy or
defeat it
o Without real withdrawal, for all we know, D is still a part of the conspiracy and if
he is, he shouldn’t be relieved of the liability (which he is trying to argue)