Technology and the guilty mind: when do technology providers become criminal accomplices?

• Author: Martin, Benton
• Position: III. Shifting Definitions of the Guilty Mind of Aiders and Abettors, B. Modern Examples of Aiding and Abetting through Conclusion, with footnotes, p. 120-148

2. MODERN EXAMPLES OF AIDING AND ABETTING

   Like the decisions already discussed, modern aiding-and-abetting analysis is flexible and circumstance-specific. Because of this, the best way to further tease out common threads is to examine examples and hypotheticals.

   A good starting point is a favorite hypothetical of Judge Richard Posner, (119) derived from a real case in California, (120) illustrating why knowledge alone is typically not enough to warrant punishment as an aider and abettor:

   Suppose you own and operate a store that sells women's clothing. Every month the same young woman buys a red dress from your store. You happen to know that she's a prostitute and wears the dress to signal her occupation to prospective customers. By selling her the dress at your normal price you assist her illegal activity, and probably you want the activity to succeed since if it fails she'll stop buying the dress and your income will be less. But you are not an aider and abettor of prostitution because if you refused to sell to her she would buy her red dress from another clothing store, one whose proprietor and staff didn't know her profession. So you're not really helping her or promoting prostitution, as you would be if you recommended customers to her in exchange for a commission. (121) So too, Judge Posner reasoned, the typical buyer of cocaine does not join the sellers' conspiracy because the sellers could no doubt find other willing buyers. (122)

   Other decisions clarify, however, that even after Nye & Nissen, knowledge plus some act of support can lead to liability as an aider and abettor. Contrast the red-dress hypo with the conviction of inmate Randy Gometz. (123) Another prisoner, Thomas Silverstein, twice convicted of killing other inmates, stopped next to Gometz's cell. (124) Gometz quickly pulled up his shirt to reveal a shank in his waistband, and Silverstein reached into Gometz's cell, grabbed the shank, and stabbed an escorting guard twenty-nine times. (125) Gometz was convicted of aiding and abetting the murder but challenged the sufficiency of the evidence to convict him on appeal. (126) Judge Posner, again writing for the court, noted that there remained some "support for relaxing the [purposeful-intent] requirement when the crime is particularly grave." (127) Thus, he continued, the jury properly convicted Gometz based on evidence that he "knew that Silverstein, given his history of prison murders, could have only one motive in drawing the shank and that was to make a deadly assault." (128) Gometz, in this sense, calls to mind Bozza, whom the Supreme Court declared to be an accomplice to tax fraud because dodging taxes was the clear purpose of running a secret distillery. (129) The decision also reaffirms the idea that "distributors of such dangerous products," (130) whether drugs or shanks, must use greater care than distributors of yeast or dresses.

   To further see how this tension between knowledge and purpose plays out in a specific context, it is useful to look at cases involving people assisting drug dealers because--courtesy of the war on drugs--they serve as a microcosm of the law of aiding and abetting. The easiest case is when an assister admits acting with intent to help the venture to distribute drugs. (131) A harder question arises when the evidence shows mere knowledge, but intent remains ambiguous--a guilty finding requires more than mere knowledge of intended drug dealing. (132) On one hand, the act of simply being a passenger in the car driven to a drug deal, even with full knowledge of the destination, is not enough to support a guilty finding for aiding and abetting. (133) On the other hand, the accused's conduct in aid of the illicit enterprise need not be overwhelming; it is enough that a person knowingly drove a drug dealer to a pick-up location. (134) The difference between passenger and driver is superficially one of actus reus (i.e., being a passenger is passive while driving is active) and not of mens rea. But that distinction would not explain why being a passenger in a car--with the intent to make the trip seem like a family vacation rather than a drug smuggling expedition--would be aiding and abetting despite involving the same conduct of "being a passenger in the car" that courts have found insufficient in other contexts. (135) Nor does it address why simply sitting at home can be aiding and abetting if the accused lived in a safe house in order to make the house appear occupied. (136) The distinction is what a reasonable jury infers from the act about the accused's desires, and the more passive the action, the less likely an inference of guilt.

   It is no defense, however, that the assistance was not essential to the crime. Courts regularly uphold the conviction of middlemen who assisted only with the financial end of a drug deal, even though the exchange of cash is not an element of a drug offense. (137)

   The Court's recent decision in Rosemond arises from a similar context. Rosemond traveled with two compatriots to a local park to conduct a drug deal. (138) When the deal went south, one of the three fired a handgun. (139) The government charged Rosemond in the alternative with (1) use of a firearm during a drug crime and (2) aiding and abetting that offense. (140) The jury convicted Rosemond of the firearm offense but did not indicate whether it found that he used the gun himself or had merely aided and abetted in its use. (141) The Court ultimately reversed Rosemond's conviction because the trial court had used a jury instruction that did not require him to have had prior knowledge that one of his compatriots brought a gun. (142) In doing so, the Court also settled a circuit split about whether someone can be guilty of aiding and abetting a crime based on aiding just one part of the crime and not every element. (143) For the Court, it was enough that Rosemond aided the drug dealing, for which the gun became a part (as long as he had knowledge of the gun's existence).

   Interestingly, in two footnotes, the Court made a point to state that it was not taking a position on two important lingering issues about aiding and abetting law. (144) First, the Court noted that "[s]ome authorities suggest an exception to the general rule when another crime is the 'natural and probable consequence' of the crime the defendant intended to abet." (145) Second, and more important for the issue at hand, the Court stated that it was not dealing "with defendants who incidentally facilitate a criminal venture rather than actively participate in it," as with "the owner of a gun store who sells a firearm to a criminal, knowing but not caring how the gun will be used." (146) The Court's silence on this point leaves open the question of the liability of technologists who provide knowing assistance to criminal users.

3. WHEN IS KNOWING ASSISTANCE ENOUGH?

   This discussion illustrates that courts, including the Supreme Court, have not spoken uniformly about the standard for determining the guilt of the knowing assister, the category most likely to ensnare technology providers. At first glance, this lack of uniformity could cause one to lament, as does William LaFave in his leading criminal law treatise, that the cases "are generally in a state of confusion." (147) On closer look, though, a through-line emerges among the differing standards: a "substantial unoffending uses" test. Before examining this test, however, consider three other proposals to harmonize the case law on aiding and abetting.

   First, consider the approach Judge Posner suggested with Gometz's shank, that knowledge is enough for major crimes. This approach reconciles some of the cases, LaFave observes, as the seriousness distinction explains why courts would impose liability "for knowing aid to a group planning the overthrow of the government or to one planning to burglarize a bank, but not for knowing aid to such crimes as gambling, prostitution, and unlawful sale of liquor." (148) Moreover, this distinction may be justified on policy grounds', it burdens merchants with the obligation of policing their customers only for the most serious crimes. (149) But it is hard to see this approach gaining real traction in today's courts, as judges are often loath to openly make policy decisions, such as the varying severity of different crimes. (150)

   A second approach is to put a gloss of substantial facilitation on [section] 2. The draftsmen of the Model Penal Code originally recommended this approach, reasoning that it would protect vendors of readily available goods and peripheral bit players who may have acted with willful blindness. (151) But the American Law Institute rejected the draftsmen's suggestion in favor of the Peoni party line (the Code currently requires accomplices to share "the purpose of promoting or facilitating the commission of the offense"). (152) LaFave suggests that the test was rejected because of "vagueness," (153) but there is a better reason to discard it. The test focuses on the degree that the accomplice's act furthered the criminal enterprise, even though the helpfulness of a certain act may only truly be known by the principal offender, and thus the approach risks punishing people for acts far beyond any they could have anticipated. (154) In any event, it does not appear to accurately reflect varying decisions of federal appellate courts.

   A third approach, perhaps the most popular among scholars, is "reconceiving accessorial liability as a species of recklessness," (155) For example, Larry Alexander argues "purpose and knowledge can be reduced to recklessness because, like recklessness, they exhibit the basic moral vice of insufficient concern for the interests of others." (156) Taking a similar approach, Daniel Yeager has argued that accomplice liability should turn on the extent the accused engaged in "excessive risk-taking." (157) Yet although the concepts of recklessness and risk-taking may be helpful...