CORE CRIMINAL LAW SUBJECTS: Crimes: Article 77 (2024)

CORE CRIMINAL LAW SUBJECTS: Crimes: Article 77 - Principals

2020 (October Term)

United States v. Simpson, 81 M.J. 33 (appellant could properly plead guilty to distributing an indecent visual recording under Article 120c(a)(3), UCMJ, as an aider and abettor of the person who distributed the recording to appellant).

(a principal under an aiding and abetting theory is independently guilty of an offense even though he or she is not the actual perpetrator and did not personally commit all of the acts necessary for the offense).

2012 (September Term)

United States v. Bennitt, 72 M.J. 266 (aiding and abetting the wrongful use of drugs is a viable offense under the UCMJ, as there is no evidence that Congress intended Article 112a, UCMJ, to preempt the entire universe of possible charges involving drugs, and nothing in the plain language or history of Article 77, UCMJ, 10USC §877, excludes wrongful use of a controlled substance as an object of aiding and abetting).

2011 (September Term)

United States v. Vela, 71 M.J. 283 (Article 77, UCMJ, imposes liability as a principal on one who (1) assists, encourages, advises, counsels, or commands another in the commission of the offense, and (2) shares in the criminal purpose of design).

(the elements of aiding and abetting are: (1) the specific intent to facilitate the crime by another, (2) guilty knowledge on the part of the accused, (3) that an offense was being committed by someone, and (4) that the accused assisted or participated in the commission of the offense).

(Article 77, UCMJ, has generally been interpreted to require an affirmative step on the part of the accused; the accused must in some sort associate himself with the venture, in that he participate in it as in something that he wishes to bring about, and that he seek by his action to make it succeed).

(while mere presence is not enough to impose liability as an aider or abettor, in some circ*mstances, inaction may make one liable as a party, where there is a duty to act; if a person has a duty to interfere in the commission of an offense, but does not interfere, that person is a party to the crime if such noninterference is intended to and does operate as an aid or encouragement to the actual perpetrator).

(evidence was legally sufficient to establish that appellant had the requisite specific intent and knowledge for aiding and abetting the wrongful placing of a weapon on the body of a dead Iraqi national in violation of Article 134, UCMJ, even though his team leader actually placed the weapon with the body, where rational court members could have concluded from the evidence that both soldiers intended to kill the victim and stage the scene to make it appear that he was a combatant carrying an AK-47; appellant completed his part by taking the affirmative act of shooting the victim in the head; his team leader completed his part by staging the weapon on the body; appellant participated in the offense by setting the stage for the offense and later participating in the cover-up of the incident; although the murder of the victim and the placement of the weapon were charged in a discrete manner, the members were free to review all the evidence in determining whether appellant was guilty of the offenses; based on the evidence as a whole, rational court members could have concluded beyond a reasonable doubt that appellant had the specific intent to facilitate his team leader’s act of placing the weapon with the body, and that he actively participated in his team leader’s staging of the scene by ensuring the death of the victim).

2008 (Transition)

United States v. Mitchell, 66 M.J. 176 (Article 77, UCMJ, provides that a person is liable as a principal if a person aids and abets the commission of the offense; to aid and abet, the accused must in some sort associate himself with the venture, participate in it as in something that he wishes to bring about, and seek by his action to make it succeed; aiding and abetting requires proof of the following: (1) the specific intent to facilitate the commission of a crime by another; (2) guilty knowledge on the part of the accused; (3) that an offense was being committed by someone; and (4) that the accused assisted or participated in the commission of the offense;intent may be inferred from the circ*mstances of the particular case).

(the intent element ofindecent assault may besatisfied, in the case of an accomplice, by proof that the accompliceshared inthe perpetrator’s criminal purpose and intended to facilitate theintent of theperpetrator with respect to the commission of the offense; when anaccusedpleads guilty to aiding and abetting an indecent assault, the accusedmustadmit to sharing in the perpetrator’s criminal intent to gratify thelust orsexual desires of the perpetrator; the accused’s admissions mustobjectivelysupport a military judge’s finding that:(1) the accused possessed the specific intent to facilitate thecommission of the indecent assault; (2) the accused had a guiltyknowledge; (3)the indecent assault was being committed by someone; and (4) theaccusedassisted or participated in the commission of the indecent assault).

(in this case, appellant’spleas of guilty tocommitting an indecent assault, by aiding and abetting a fellow Marineto havesexual intercourse with the victim was provident, despite appellant’sobjectionthat the plea inquiry did not demonstrate that he acted with thespecificintent to gratify his own lust or sexual desire; appellant admittedthat heacted with the specific intent to gratify the perpetrator’s lust orsexualdesires; in addition, appellant admitted that he intended to facilitatetheperpetrator’s commission of the indecent assault, knew that theperpetrator hadindecently assaulted the victim, and encouraged the perpetrator’scommission ofthe indecent assault; the military judge was not required to elicitfacts fromappellant demonstrating that he intended to gratify his own lust orsexualdesires).

(a person can be convicted as a principal byaiding and abetting absent proof that the person possessed the intentrequiredof the actual perpetrator of the offense).

2006

(establishment of a duty tointervene, without more, doesnot per sesatisfy the requirement of a shared criminal purpose under Article 77,UCMJ; failureto act in accordance with a legal duty can reflect criminal intent;however,this is a fact-specific inquiry).

(Article 77, UCMJ, isconjunctive; it requires a finding ofencouragement, for example, a result plus an intent).

UnitedStates v. Gosselin, 62 M.J. 349 (although anaccused may not be the primaryactor in an offense, he may be held liable as a principal to the crimeif heaids, abets, counsels, commands, or procures its commission).

(the elements ofaiding and abetting anoffense under Article 77, UCMJ, are: (1)the specific intent to facilitate the commission of a crime by another;(2)guilty knowledge on the part of the accused; (3) that an offense wasbeingcommitted by someone; and (4) that the accused assisted or participatedin thecommission of the offense).

(for an accusedto be a principal underArticle 77, UCMJ, and thus to be guilty of the offense committed by theperpetrator, he must (1) assist, encourage, advise, instigate, counsel,command, or procure another to commit, or assist, encourage, advise,counsel,or command another in the commission of the offense; and (2) share inthecriminal purpose of design; Article 77 has been generally interpretedtorequire an affirmative step on the part of the accused; mere inactivepresenceat the scene of a crime does not establish guilt; the law requiresconcert ofpurpose or the aiding or encouraging of the perpetrator of the offenseand aconscious sharing of his criminal intent).

(in somecirc*mstances, inaction may make oneliable as a party, where there is a duty to act; if a person has a dutytointerfere in the commission of an offense, but does not interfere, thatpersonis a party to the crime if such a noninterference is intended to anddoesoperate as an aid or encouragement to the actual perpetrator).

2000

UnitedStates v. Browning, 54 MJ 1 (a co-conspirator maybe heldcriminally responsible under theory of vicarious liability pursuant toArticle77, UCMJ, even though the Article does not specifically deal withvicariousliability of co-conspirator and even if not specifically alleged in thepleadings).

1999

UnitedStates v. Thompson, 50 MJ 57 (court’s case law hasgenerallyinterpreted Article 77, principals, to require an affirmative step onthe partof the accused).