US v. Garcia
No. 04-50105 (3-11-05). Is "aiding and abetting" a separate offense or is it just one way of committing an offense? That was the issue raised in this 1324 (alien smuggling) case. The gov't alleged both alien smuggling and aiding and abetting. On appeal, appellant argued that the gov't should have been forced to elect between them or the jury instructed to decide unanimously on one or the other. Appellant pointed out, for different elements, that aiding requires specific intent while smuggling is general intent. The 9th was not convinced, holding that aiding and abetting really wasn't a separate offense, but a means to commit one criminal offense. This differs from, for example, from attempting to commit a crime and aiding. "Attempting" is a crime in and of itself -- it is the offense. "Aiding" on the other hand is a means of committing a single crime either by performing it or aiding in its commission. To the 9th, it is but one theory of liability. As for the unanimity requirement, this would fall under a Schad v. Arizona, 501 US 624 (1991) analysis, that held that jurors are not required to agree unanimously on alternative means of committing a crime (felony murder vs premeditated murder). The jurors here were instructed properly on each theory and the elements, and the liability of the defendant was the same as a principal. The 9th lastly relies on the fact that "aiding" is implied in every federal indictment and considered an alternate liability theory throughout the code.