STEARNS, District Judge.
Defendant John Davis, Jr., who was convicted after a two-day jury trial of aiding and abetting a violation of 18 U.S.C. § 287, see 18 U.S.C. § 2, now moves for judgment of acquittal pursuant to Fed. R.Crim.P. 29(c).
There is no dispute that the evidence at trial established that Davis was a willing participant in a scheme to file a false 2008 federal tax return. Davis admitted to federal investigators that he had provided his name, address, telephone number, and social security number to the principal (whom he would not identify), that he had received and cashed a $7,019.75 tax refund check,
The legal issue arises from the subtleties of the distinction between substantive offense liability and liability as an aider and abettor. Although the indictment was brought under the general false claims statute, 18 U.S.C. § 287, it specified the false claim that was filed as "a 2008 federal income tax return Form 5405." Given the language of the indictment, the jury was instructed that to convict Davis of the substantive offense, it would have to find that he knew that the false claim "involv[ed]
With respect to aiding and abetting, the jury was instructed that it need only find that Davis had "willfully participated in [the scheme] as something that he wished to bring about, and by his actions to have sought to make it succeed.... Participation in every stage of an illegal venture is not required to be guilty as an accomplice; it is sufficient if the government proves beyond a reasonable doubt a defendant's participation at some significant stage of the transaction."
That issue was flagged when the jury asked whether the substantive crime required proof that Davis "specifically and knowingly filed a false claim re: the first time homebuyers tax credit." (The jurors supplied the emphasis). They then asked: "Please also direct us to the answer for how this bears on the aiding + abetting argument? Must he have known that the tax preparer was fraudulently filing the first-time homebuyer tax credit specifically?" In discussing the jurors' questions with counsel, the court's tentative conclusion was that the knowledge component was the same under both theories of liability. After further research, the court reported to counsel that "I ha[d] changed my mind" based, in part, on a reading of United States v. Garcia-Rosa, 876 F.2d 209 (1st Cir.1989), vacated on other grounds by Rivera-Feliciano v. United States, 498 U.S. 954, 111 S.Ct. 377, 112 L.Ed.2d 391 (1990).
In answering the jury's questions, the court instructed:
A juror then asked for further clarification: "So in terms of a false return, would he have to know that it was specifically going to be false relating to the First Time Homebuyer Tax Credit?" The court responded:
Despite the length of their briefs, the parties' positions can be succinctly stated. Davis argues that to obtain a conviction for aiding and abetting, "[t]he government must prove that the defendant knew that
In Garcia-Rosa, the principal case relied on by the court in answering the jury's question(s), the First Circuit held (consistent with the holdings of almost every other Circuit Court), that a defendant "need not perform the substantive offense, be present when it is performed, or be aware of the details of its execution." 876 F.2d at 217, citing United States v. Hernando Ospina, 798 F.2d 1570, 1581-1582 (11th Cir.1986). See Collins v. United States, 65 F.2d 545, 547 (5th Cir.1933) ("It is not necessary to prove he was present when the crime was committed or actively participated therein. He must be considered as having aided and abetted the commission of the crime if what he did made possible and tended to cause its commission."); United States v. Hamblin, 911 F.2d 551, 557-558 (11th Cir.1990) (same); United States v. Sampol, 636 F.2d 621, 676 (D.C.Cir.1980) (same); United States v. James, 528 F.2d 999, 1015 (5th Cir.1976) (same). See also United States v. Loder, 23 F.3d 586, 591 (1st Cir.1994) (in order to sustain conviction of aiding and abetting mail fraud, "the government must present evidence that would allow a rational trier of fact to conclude that [defendant] had knowledge that he was furthering mail fraud ... he need not be aware of all the details of the mail fraud...."); United States v. Bristol-Martir, 570 F.3d 29, 39 (1st Cir.2009), quoting United States v. Hernandez, 218 F.3d 58, 65 (1st Cir.2000) (affirming conviction of defendant for aiding and abetting an attempt to possess with intent to distribute narcotics, noting that "[k]nowledge of the particular controlled substance being imported or distributed is not necessary....").
To take the example the court used in discussing the issue with counsel at trial, if the intended crime is murder, it matters little to liability that the aider and abettor was unaware whether the death blow would be struck with a gun or a knife. What matters is that the defendant share with his principal the intent necessary to convict for murder, that is, the mental state of malice. To share the principal's purposeful intent is not, however, the same thing as sharing perfect knowledge of the manner or means by which the principal would carry out the intended crime(s). To continue with the murder example: if the principal's intent was premeditated, it would be sufficient for purposes of liability if the accomplice were to be found guilty on a theory of third-prong malice (a strong and plain likelihood of death).
The distinction between purposeful intent and knowledge, while often subtle, is significant. The difference may have been best described by the District of Columbia Circuit in United States v. Walker, 99 F.3d 439 (D.C.Cir.1996). In Walker, the defendant was found in a bedroom with two other persons surrounded by drugs and
It takes no great leap of imagination to recognize that the "probable and natural consequences" doctrine of aiding and abetting, which holds an accomplice responsible for all foreseeable criminal acts flowing from the common scheme (a form of Pinkerton liability), a doctrine recognized in all Circuits (although not always consistently applied), would be defeated by any definition of aiding and abetting that required the accomplice to have perfect knowledge of the details of the crimes the principal intended to commit. See Walker, 99 F.3d at 443 ("[O]nce a common design is established, the aider and abettor is responsible not only for the success of the common design, but also for the probable and natural consequences that flow from its execution, even if those consequences were not originally intended."); United States v. Spinney, 65 F.3d 231, 237 (1995) (holding aider and abettor liable for the principal's use of a weapon to commit armed bank robbery because "shared knowledge" need not amount to "actual knowledge" that a gun would be used to perpetrate the robbery); United States v. Beck, 615 F.2d 441, 453-455 (7th Cir.1980) (holding the aider and abettor of an illegal arms export scheme liable for the foreseeable false statements subsequently made by the principal to Customs authorities);
For the foregoing reasons, the motion for judgment of acquittal is DENIED. The Clerk will set the case for sentencing.
SO ORDERED.