Sunday, March 13, 2005

Case o' The Week: Garcia and Aiding & Abetting

The San Diego Defender continues its mens rea attacks in United States v. Odilon Garcia, __ F.3d __, 2005 WL 563967 (9th Cir. Mar. 11, 2005), available here. Judge Rymer, unfortunately, rejects the challenge, announcing the rule that a jury can be squarely split on a theory of liability . . . and yet, still convict.

Players: Yet another creative and compelling challenge by the Federal Defenders of San Diego, brought by Todd Burns and Ramzi Nasser.

Facts: Border Patrol agents stopped two vehicles. Garcia, 2005 WL 563967, *1. Illegal aliens jumped out of one, and the second vehicle fled. Id. The second vehicle was found at the edge of a ravine; defendant Garcia was found nearby, injured, walking in a daze, with keys in his pocket to the truck. Id. The defendant was charged with two counts of bringing undocumented aliens into the US for financial gain, and two counts of transporting them within the States. Id. The indictment also charged aiding and abetting as to each count, in violation of 18 USC § 2. Id. Garcia filed a pretrial motion to dismiss the indictment on grounds of duplicity, which was denied. Id. Also denied was a specific unanimity instruction that would have required the jury to agree whether Garcia was a principal, or aider and abettor. Id. The defendant was found guilty of all counts. Id.

Issue(s): Is an indictment that charges substantive crimes, and aiding and abetting, "duplicitous because the two have separate elements and thus are separate offenses, requiring the government to elect between them or the district court to give a specific unanimity instruction[?]" Id.

Held: "Following Supreme Court and our own precedent, we conclude that aiding and abetting is not a separate offense from the underlying substantive crime, but rather a different theory of liability for the same offense. Accordingly, we affirm Garcia’s conviction on all counts." Id.

Of Note: To understand Odilon Garcia, it helps to know some recent litigation history of the San Diego Federal Defender. That office has lead the charge on mens rea attacks, successfully establishing a higher intent showing necessary for attempted illegal reentry. One example of this distinction was argued by the defense in this case, citing the higher intent standard for attempted transport of an illegal alien. See id. at *2 (citing United States v. Ramirez-Martinez, 273 F.3d 903 (9th Cir. 2001). In a compelling analogy, the defense argued here that aiding and abetting – like attempted alien transportation – has a specific intent element, and thus requires specific unanimity instructions. See id.

While the decision breaks no new ground in rejecting this argument, the result is odd and disturbing. Under Garcia, six jurors could find a defendant guilty as an aider and abettor, and six jurors could find him guilty as a principal – but the jurors could vehemently disagree as to which theory of liability applies. Nonetheless, "jurors are not required to agree unanimously on alternative means of committing a crime." Id. at *3 (citing Schad v. Arizona, 501 U.S. 624 (1991).

How to Use: First, beware that aiding and abetting is implicit in every federal charge – thus, do not be surprised by a requested aiding and abetting instruction late in the game. See id. ("We have also held a number of times in different contexts that aiding and abetting is embedded in every federal indictment for a substantive crime.")

Note also that an aiding and abetting instruction may conflict with other instructions, such as the"wilful blindness" instruction. See United States v. Jewell, 532 F.2d 697 (9th Cir. 1976). There is a trend in other circuits to reject this instruction when specific intent offenses (like, arguably, aiding and abetting) are involved.

For Further Reading: The San Diego Defender and Judge Rymer have tangled before on mens rea issues – and last time, the en banc panel sided with the Defender. See United States v. Gracidas-Ulibarry, 231 F.3d 1188 (9th Cir. 2000), en banc (available here). Mens rea protections are one of many increasingly endangered constitutional rights; compare Gracidas-Ulibarry and Garcia as evidence of this devolution.

Steven Kalar, Senior Litigator ND Cal FPD.


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