J.Hello! I am John Seaman, an attorney assigned to the FLETC, Legal Division at Glynco, GA. I came to the FLETC LGD in 2006 from ICE where I served as an Assistant Chief Counsel for 10 years. With me today is Michelle Story
M. Hello, I am Michelle Story. I am also an instructor with the FLETC, and I have been assigned to the Legal Division since 2007. I previously worked for the City of Atlanta, GA as a prosecutor for 6 years.
J. We are here today to discuss Party offenses described in Title 18 USC §§ 2(a), 2(b), 3 and 4. Specifically, we are discussing the offense of Aiding & Abetting, in violation of § 2(a), the offense of Causing the Commission of a Crime, in violation of § 2(b), the offense of Accessory after the Fact, in violations of § 3, and lastly...Misprision of a Felony, in violation of § 4.
M. John what is a party to a crime?
J. When I talk about a Party to a crime, generally I am referring to someone who has knowledge that a criminal act is taking place or has taken place and, with that knowledge, provides some sort of assistance to the criminal. The individual who actually commits the criminal act is referred to as the Principal of the offense. Parties to a criminal offense, generally speaking, are individuals who provide some sort of assistance to the Principal either before, during, or after the criminal act.
M. Can you be more specific?
J. Certainly. I think the best way to identify the various ways in which one can be criminally responsible as a Party is to review the language of the statutes. Title 18 USC § 2(a) makes it a crime to aid, abet, counsel, command, induce or procure the commission of a federal offense. The statue goes on to state that one who does aid or abet the commission of a criminal act is punishable as a Principal.
M. What would the government have to prove to charge a violation of § 2(a)?
J. The government would have the burden to prove that the defendant knowingly associated with the Principal, either before and or during the crime, for the purpose of assisting the Principal in the commission of a criminal offense. Mere association with the Principal isn’t enough. The defendant must know that he or she is assisting in the commission of a federal crime.
M. Does this mean that the Aider & Abettor has to actually “participate” in the commission of the criminal act?
J. No. An Aider & Abettor is not required to even be present at the time the actual crime is committed, nor even know all the details of the crime. What § 2(a) prohibits is having knowledge that a crime is about to take place, or is taking place, and intentionally providing assistance to the Principal to carry out the crime. Therefore, the assistance we are speaking of must come either before and or during the actual crime.
M. You stated earlier that and Aider & Abettor is punishable as a Principal. What do you mean?
J. This means is that if the government can prove that an individual knowingly aided & abetted a Principal to commit a crime, then the individual who provides that assistance (the Aider & Abettor) is punishable for the completed crime. In fact, even if the Principal is never caught, the Aider & Abettor can still be charged with the completed crime!
M. Must a crime be committed before one could be charged for being an Aider & Abettor?
J. That is absolutely correct Michelle. Only where we have a completed crime may one who Aides & Abets be charged under Title 18 USC § 2(a).
J. Next we have Title 18 USC § 2(b) which makes it a crime to willfully cause another to commit a federal offense. Where one willfully causes another to commit a crime, he or she is a party to that crime and is punishable for the completed offense.
M. What if the principal is never caught?
J. Just like the offense of Aiding & Abetting, even if the Principal isn’t caught or prosecuted, one who causes the crime to be committed can be prosecuted for the completed offense. And, just like the Aiding and Abetting statute we have discussed, to use this statute there must be a completed federal crime.
J. Next we have Title 18 USC § 3 which makes it a crime to knowingly and willfully receive, relieve, comfort, or assist one who has committed a federal crime after the crime has been completed. We call this being an Accessory After the Fact.
M. Are you saying that to commit this crime the person who provides the assistance would have to have knowledge that the person he or she is assisting has committed a crime?
J. That’s correct Michelle.
M. Does it matter whether the crime is a felony or misdemeanor?
J. No. The Accessory After the Fact charge would apply whether the underlying crime was a felony or a misdemeanor. In addition, like Aiding & Abetting under § 2(a) and Causing Another to Commit a Crime under § 2(b), the conviction of the Principal is not necessary to convict one who is an Accessory After the Fact.
M. John you said earlier that one who Aides & Abets or Causes Another to Commit a Crime is punishable as a Principal. In other words, a person who commits either of these crimes is charged with the completed offense...just like the Principal. Is this also true for an Accessory After the Fact?
J. No. One who acts as an Accessory After the Fact is charged just that way...as an Accessory After the Fact. One convicted of being an Accessory After the Fact is not guilty of the offense that was committed.
J. Lastly, we have Title 18 USC § 4, Misprision of a Felony. This statute is directed at those individuals who have knowledge that a federal felony has been committed and take affirmative steps to conceal the crime, or the nature of the crime, and then fail to disclose their knowledge to authorities.
M. Does this mean the individual has to “know” who committed the felony and actively participate in the crime?
J. No. Misprision of a Felony only requires the act of concealing the federal felony (or the nature of the crime). There is no requirement that the defendant know the actual person who committed the felony crime, nor any requirement to prove that the defendant provided any degree of assistance in the commission of the underlying crime.
M. OK, so let me make sure I understand what you have said about this offense. In order to successfully prosecute a defendant, the government would have to prove that:- a federal felony was committed, - that the defendant had knowledge of the crime,- that the defendant took steps to either conceal the crime or conceal the true nature of the crime, and- that the defendant failed to disclose knowledge of the crime to authorities as soon as possible?
J. Michelle, that is correct.
M. What if there is a situation where a person knows a federal felony has been committed, but does not act in any way to conceal the crime or the nature of the crime. Could the person still be convicted if he or she didn’t report the crime to authorities?
J. No. A simple failure to report a crime does not make one guilty of Misprision of a Felony. There must be some affirmative act of concealment for the offense to apply.
M. Well it sounds as though the crimes of Misprision of a Felony and Accessory After the Fact might be closely related?
J. That’s true. Some distinctions are that one who acts as an Accessory After the Fact intentionally assists the Principal of the crime after its commission. For the crime of Misprision of a Felony, one need not even know who committed the underlying crime. Also, unlike the crime of Misprision of a Felony, the crime of Accessory After the Fact does not require the defendant to disclose his or her knowledge to authorities as soon as possible. But, since the two crimes are related, there will often be sufficient evidence to charge both crimes. A good approach for the criminal investigator is to collect all the facts and discuss those facts with the AUSA in making a charging decision.
M. Thank you for this overview of Parties to Criminal Offenses.
J. You’re welcome Michelle. And if any of our listeners are interested, I have also prepared a podcast on Conspiracy where I discuss the general Conspiracy statute found at 18 United States Code § 371. Thanks again for listening.