A Question of Intent: Aiding and Abetting Law and the Rule of Accomplice Liability Under § 924©

Firearms are common tools of the violent-crime and drugtrafficking trades. Their prevalence is reflected in the frequency with which federal prosecutors charge, juries apply, and courts review 18 U.S.C. §924(c). 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 offense. A conviction under section 924(c) carries at the very least a mandatory, consecutive five-year sentence, even when the underlying crime already provides enhanced punishment for use of a dangerous weapon during its commission. The sentence increases to twenty years for a second or subsequent conviction, and further increases 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. Accordingly, section 924(c) draws a broad range of underlying criminal activity within the scope of additional mandatory penalties whenever a firearm is involved. The breadth and severity of section 924(c)’s application to violent and drug-related crimes makes it all the more important that an adequate check be placed on the statue’s application to accomplices 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, counsels, commands, induces or procures” the commission of a federal offense is punishable as if he had committed the crime himself. Judge Learned Hand provided in United States v. Peoni what has become the definitive rule for accomplice liability under this statute: 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.” Although courts addressing accomplice liability under section 924(c) consistently recite Judge Hand’s formulation of section 2 in Peoni, they do so reflexively, echoing the language of the rule with insufficient attention to the theoretical rationale behind it.