Michigan Law Review Volume 96 Issue 3 1997 A Question of Intent: Aiding and Abetting Law and the Rule of Accomplice Liability Under § 924© Tyler B. Robinson University of Michigan Law School Follow this and additional works at: https://repository.law.umich.edu/mlr Part of the Courts Commons, Criminal Law Commons, and the Legislation Commons Recommended Citation Tyler B. Robinson, A Question of Intent: Aiding and Abetting Law and the Rule of Accomplice Liability Under § 924©, 96 MICH. L. REV. 783 (1997). Available at: https://repository.law.umich.edu/mlr/vol96/iss3/6 This Note is brought to you for free and open access by the Michigan Law Review at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Law Review by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. A Question of Intent: Aiding and Abetting Law and the Rule of Accomplice Liability Under § 924(c) Tyler B. Robinson 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 re­ view 18 U.S.C. §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 of­ fense.2 A conviction under section 924(c) carries at the very least a mandatory, consecutive five-year sentence, even when the underly­ ing crime already provides enhanced punishment for use of a dan­ gerous weapon during its commission.3 The sentence increases to twenty years for a second or subsequent conviction, and further in- 1. A quick Westlaw search reveals more than 800 cases involving 18 U.S.C.§ 924(c) in the federal courts during 1996 alone. Search of Westlaw, Allfeds Database (Oct. 12, 1997). During 1995, moreover, 30% of all reported murder, robbery, and aggravated assault of­ fenses collectively involved the use of firearms.See Department of Justice, Federal Bureau of Investigation Press Release (Oct.13, 1996) <http://www.fbi.gov/ucr/ucr95prs.htm>. 2. 18 U.S.C.§ 924(c)(l) (1994). Section 924(c)'s drug trafficking prong covers any felony punishable under the Federal Controlled Substances Act, 21 U.S.C. §§ 801-904 (1994), the Controlled Substances Import and Export Act, 21 U.S.C.§§ 951-71 (1994), or the Maritime Drug Law Enforcement Act, 46 U.S.C. app.§§ 1901-04 (1994). See 18 U. S.C.§ 924(c)(2). The statute's crime-of-violence prong reaches any predicate felony that "has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or ... that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense. " 18 U.S.C.§ 924(c)(3). 3. See 18 U.S.C.§ 924(c)(l). For example, a five-year term of imprisonment under § 924(c) may be added to a sentence under 18 U.S.C.§ 2113 for armed bank robbery, even though§ 2113(d) already enhances the sentence for bank robbery from a 20-year to a 25-year maximum ifthe defendant "puts in jeopardy the life of any person by the use of a dangerous weapon or device." 18 U.S.C.§ 2113(d) (1994). At least one district court has concluded that a consecutive§ 924(c) sentence on top of a sentence enhancement provided by the pred­ icate statute constitutes double jeopardy - punishment twice for the same offense- unless the elements of a§ 924(c) violation encompass a different set of actions than do the elements of a § 2113(d) violation. See United States v. Foreman, 914 F. Supp. 385, 387 (C.D. Cal. 1996). The Supreme Court has firmly established, however, that if there is clear legislative intent to impose two separate, cumulative punishments for the same conduct, there is no double jeopardy violation. See Missouri v.Hunter, 459 U.S. 359, 368-69 (1983). Congress expressly provided such intent with respect to§ 924(c) following two Supreme Court decisions, handed down in 1978 and 1980, that held§ 924(c) inapplicable to cases in which the predicate felony statute contained its own sentence enhancement provision forthe use of a dangerous weapon. See Busic v.United States, 446 U.S. 398 (1980); Simpson v. United States, 435 U.S. 6 (1978). In 1984 Congress responded by expressly amending the language of§ 924(c) to ensure that all persons who commit Federal crimes of violence, including those crimes set forth in statutes which already provide for enhanced sentences for their commission 783 784 Mi chigan Law Re vie w [Vol. 96:783 creases 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, sec­ tion 924(c) draws a broad range of underlying criminal activity within the scope of additional mandatory penalties whenever a fire­ arm is involved. The breadth and severity of section 924(c)'s application to vio­ lent and drug-related crimes makes it all the more important that an adequate check be placed on the statue's application to accom­ plices 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. § 2 anyone who "aids, abets, coun­ sels, 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. Peoni6 what has become the definitive rule for accomplice liability under this stat­ ute: 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 ac­ complice to a principal's use or carrying of a firearm during a via- with a dangerous weapon, receive a mandatory sentence, without the possibility of the sentence being made to run concurrently with that for the underlying offense. S. REP. No. 98-225, at 313 (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3491. Thus, there is no double jeopardy conflictwhen § 924(c) imposes an additional consecutive sentence for the same conduct that is already punished under the predicate statute. See, e.g., United States v. Bishop, 66 F.3d 569, 573-75 {3d Cir. 1995); United States v. Centeno-Torres, 50F.3d 84 (1st Cir. 1995). 4. See 18 U.S.C. § 924{c)(1). 5. 18 u.s.c. § 2 {1994). 6. 100 F.2d 401 {2d Cir. 1938). 7. 100 F.2d at 402; see also United States v. Ledezma, 26 F.3d 636, 641 {6th Cir. 1994) (citingPeoni and noting that all federal circuits have adopted Judge Hand's interpretation of § 2). 8. See, e. g. , United States v. Delpit, 94F.3d 1134, 1150-51 {8th Cir. 1996); United States v. Cruz-Paulino, 61 F.3d 986, 998 {1st Cir. 1995); United States v. Lowery, 60F.3d 1199, 1202 (6th Cir. 1995); United States v. Ortega, 44F.3d 505, 507 (7th Cir. 1995); United States v. Monroe, 990 F.2d 1370, 1373 {D.C. Cir. 1993); United States v. Langston, 970 F.2d 692, 705 {10th Cir. 1992); United States v. Horton, 921F.2d 540, 543 {4th Cir. 1990); United States v. Smith, 832F.2d 1167, 1170 {9th Cir. 1987); United States v. Reicherter, 647F.2d 397, 401 {3d Cir. 1981); United States v. Alvarez, 610 F.2d 1250, 1253 {5th Cir. 1980); see also United States v. Medina, 32F.3d 40, 45 (2d Cir. 1994) (citing, but not reciting, Peom). December 1997] Note -'- Accomplice Liability 785 lent 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 lat­ ter 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 Ian- 9. Knowledge can only be inferred through circumstantial evidence, for it is impossible to prove directly what was subjectively in the mind of the defendant.