Aiders and abettors, also known as accessories before-the-fact, are the very first provision of Title 18 of the United States Code (18 U.S.C. 2). The provision states that “whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.” This provision empowers the U.S. government to prosecute any individual for the substantive crimes they provided assistance to even if they were not the ones who actually performed the elements of that crime. The prevailing logic of this provision is that people who assist in the commission of a crime are as culpable as the people who actually commit the crime. Note that an aider and abettor is distinct from an accessory after-the-fact. An accessory after-the-fact is not treated as a principal, and instead is a crime in and of itself codified in 18 U.S.C. 3. The logic of this distinction being that people who assist after a crime has been committed are not as culpable as the people who provided assistance leading up to and during the commission of a crime.

A person may be convicted of aiding and abetting any act made criminal under the U.S. code. The elements of aiding and abetting are, generally:
(1) Knowingly or purposively;
(2) Providing assistance or participating in the commission of any crime codified in the U.S. Code; and
(3) Proof that someone committed the underlying crime.

Notice that there is no requirement for the government to actually prosecute and convict the person who committed the underlying crime. Moreover, the government does not even need to identify the principal suspect so long as it can be proven beyond a reasonable doubt that the underlying offense has been committed by somebody.

The example most prosecutors (and law professors) like to use to justify treating accessories before-the-fact as principals is the lookout or getaway driver during a bank robbery. This example, in my opinion, too simplisticly proves the point that those who assist in the commission of a crime should be as liable as those who actually committed the crime itself. For example, should the getaway driver in a bank robbery not be convicted of the robbery itself? And, what if the principal who actually robbed the bank died during the commission of the act? Should the government be absolutely incapable of obtaining a robbery conviction from the getaway driver? Justifying accomplice liability in this light is all too easy.

But what if the underlying crime involved no violence and the accomplice’s participation was, for example, limited to the passive maintenance of a domestic bank account? The arguments supporting accomplice liability become even less persuasive when discussing the concept in the context of white collar or financial crime. This is exactly what happened to Mahmoud Reza Banki. Mr. Banki was convicted for aiding and abetting in the operation of an unlicensed money transmitting service for merely maintaining a bank account that enabled others to operate the business. The U.S. Department of Treasury has unequivocally stated that the purpose of the money transmitter law is to target operators, not beneficiaries. But Mr. Banki’s conviction under the theory of aiding and abetting may have potentially opened the door to more prosecutions of individuals as principal operators. Even when a person’s activities are clearly something less than that of an operator’s and are more akin to that of a beneficiary’s, the government can now pursue prosecution under 18 U.S.C. 2 in what unfortunately seems to be in direct conflict with the policy behind the law.

The author of this blog is Erich Ferrari, an attorney specializing in Federal Criminal Defense matters. If you have any questions please contact him at 202-280-6370 or ferrari@ferrari-legal.com.

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