A question of intent: aiding and abetting law and the rule of accomplice liability under section 924(c).

• Date: 01 December 1997
• Author: Robinson, Tyler B.

Firearms are common tools of the violent-crime and drug-trafficking trades. Their prevalence is reflected in the frequency with which federal prosecutors charge, juries apply, and courts review 18 U.S.C. [sections] 924(c).(1) That provision imposes heavy penalties for either the use or carrying of a firearm "during and in relation to any crime of violence or drug trafficking crime," in addition to the punishment provided for the underlying violent or drug-related offense.(2) A conviction under section 924(c) carries at the very least a mandatory, consecutive five-year sentence, even when the underlying crime already provides enhanced punishment for use of a dangerous weapon during its commission.(3) The sentence increases to twenty years for a second or subsequent conviction, and further increases in specified increments -- to a maximum of thirty years for a first offense and life without parole for a subsequent conviction -- depending on the type of firearm employed, and on whether the firearm is equipped with a silencer or muffler.(4) Accordingly, section 924(c) draws a broad range of underlying criminal activity within the scope of additional mandatory penalties whenever a firearm is involved.

The breadth and severity of section 924(c)'s application to violent and drug-related crimes makes it all the more important that an adequate check be placed on the statue's application to accomplices to the predicate offense. Federal courts have failed, however, to elucidate a clear or consistent rule of accomplice liability under section 924(c). Under 18 U.S.C. [sections] 2 anyone who "aids, abets, counsels, commands, induces or procures" the commission of a federal offense is punishable as if he had committed the crime himself.(5) Judge Learned Hand provided in United States v. Peoni(6) what has become the definitive rule for accomplice liability under this statute: a defendant must "associate himself" with the criminal venture of the principal, and "participate in it as in something that he wishes to bring about, that he seek[s] by his action to make ... succeed."(7) Although courts addressing accomplice liability under section 924(c) consistently recite Judge Hand's formulation of section 2 in Peoni,(8) they do so reflexively, echoing the language of the rule with insufficient attention to the theoretical rationale behind it.

The Peoni rule has thus become disconnected, body from spirit, as courts have relied on the same statement of the rule to articulate two divergent standards for determining when a defendant is an accomplice to a principal's use or carrying of a firearm during a violent or drug-trafficking crime. Both standards require that in the course of the predicate offense -- the crime of violence or drug trafficking during which the principal uses or carries a firearm -- the accomplice must know that the principal is armed.(9) Because the language of section 924(c) does not provide for a specific mens rea element, courts infer that knowledge of the facts constituting the offense establishes the required level of culpability.(10) As knowledge constitutes the requisite criminal intent of the principal violator of section 924(c), knowledge must also be established on the part of the accomplice, the logic being that in order for the latter to merit the same level of punishment as the former, he must share the same level of culpability.(11)

The two standards diverge, however, in the level of participation necessary to support an inference that the defendant, in the language of Peoni, participated in the principal's section 924(c) offense "as in something that he wishes to bring about, that he seek[s] by his action to make ... succeed."(12) Under one standard -- which this Note will refer to as the broad standard of liability -- the defendant who knows that the principal is armed can be held liable as an accomplice to the section 924(c) violation when he acts with the intention to assist or influence the commission of the underlying predicate crime.(13) Under the second -- or narrow -- standard, however, courts require more specifically that a defendant act with the intention directly to facilitate the use or carrying of the gun by the principal, beyond mere participation in the predicate crime that underlies the principal's section 924(c) offense.(14)

For purposes of illustrating this distinction, imagine that two men, P and A, rob a bank. Both men enter the bank, and P holds up the teller and customers at gunpoint while A goes behind the teller window and stuffs a bag with cash. P and A are both guilty of bank robbery.(15) P also violates section 924(c).(16) A clearly knew that P used a firearm in the commission of the robbery in which he participated, and, for purposes of this hypothetical, we can assume that P and A agreed ahead of time that P would hold everyone at gunpoint. Under the broad standard of accomplice liability, A aided and abetted P's use of the firearm by participating in and facilitating the bank robbery, knowing that P used the firearm to further the robbery. Under the narrow standard, however, A did not directly facilitate the use of the firearm merely by stuffing bags with money and therefore did not aid and abet P's section 924(c) violation, even though he knew that P would use a firearm in order to commit the robbery.(17)

Whatever strikes the reader as the more intuitively appealing rule of liability in the above hypothetical, both standards are problematic in that neither holds true to the rule of accomplice liability set out in Peoni -- at least not all of the time. As presently conceived,(18) the broad standard threatens overinclusive liability in certain circumstances, while the narrow standard may be underinclusive. Additional hypotheticals demonstrate these defects. Under the broad standard, A, who participated in a simple hand-to-hand drug deal that, in and of itself, had nothing to do with using or carrying a firearm so far as he was concerned, can nevertheless be convicted of aiding and abetting the carrying of the gun that co-dealer P carried to the deal. A is considered an accomplice to P's section 924(c) violation under this broad standard if he participated in the drug transaction merely aware of and able to benefit from the gun's presence, even though it was exclusively P's actions and intentions that determined that a firearm had any relation to the transaction.(19) Under Peoni, however, because A does not act intentionally to bring about P's carrying of the firearm, A should not be held liable as an accomplice. Thus, the broad standard may be overinclusive relative to Peoni.

On the other hand, the narrow standard may be underinclusive of the Peoni rule. A, who masterminded and organized a plan to commit armed robbery knowing that firearms would be integral to effect its commission and fully intending -- although not expressly instructing -- that they be used, could nevertheless successfully insulate himself from section 924(c) liability. He could do so by remaining comfortably at home while his subordinates P and Q execute the plan with the implicit understanding that they will have to use their own guns to pull it off. A's ability to evade accomplice liability in this case similarly neglects the Peoni rule.(20)

This Note neither fully rejects nor singly embraces either standard of liability. It seeks, rather, to define a realm of circumstances under which each respective standard permits a court properly to infer a purposive intent on the part of an accomplice to "bring about" the principal's use or carrying of a firearm in violation of section 924(c). On another level, then, the object is to revitalize the language of Peoni -- to which courts applying inconsistent standards consistently claim allegiance -- with a clear and uniform meaning. Toward that end, this Note advocates a context-responsive standard of accomplice liability under section 924(c), whereby the participation required of the defendant to aid and abet the firearm offense responds to the circumstances of the principal's "use" or "carrying" of the firearm during a predicate violent or drug-trafficking crime.

This Note proceeds cautiously. The divergent standards courts currently apply reflect confusion over, and a shortage of reflection on, the dual mens rea requirement of complicity law as applied to the multilayered structure of section 924(c)'s proscription against "use" or "carrying" of a firearm in connection with a second, underlying predicate offense. This Note therefore endeavors to fully develop the building blocks of the analysis in their own right before moving on to the design of a new accomplice liability regime under section 924(c). Part I reflects on the nature of complicity doctrine(21) and suggests that under the language of Peoni, an accomplice is punishable to the same extent as the principal only when (1) both share the same mens rea with respect to the commission of the principal's offense, and (2) the accomplice acts with the purpose to assist or influence the principal to commit the acts constituting that offense. Part II dismantles section 924(c) into its component parts of "carrying" or "use" and sets forth two distinct contexts to which divergent standards of accomplice liability might independently apply. In light of the Peoni rule's intentional act requirement discussed in Part I, Parts III and IV then advance different standards of accomplice liability in the "carrying" and "use" contexts, as defined in Part II. Part III argues that section 924(c)'s "carrying" prong should require application of the narrow standard of liability under which a defendant must directly facilitate the principal's carrying of the firearm in order to aid and abet section. 924(c). Part IV suggests that section 924(c)'s "use" prong permits application of the broad standard for establishing accomplice liability in certain circumstances, but demands application of the narrow standard...