Aiding and Abetting in Violation of 18 U.S.C. Section 2

Title 18, United States Code, Section 2, makes it a crime to aid or abet the commission of another crime and provides as follows:

(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces, or procures its commission, is punishable as a principal.

(b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.

In order to prove a case under § 2, three elements must exist:

1. The individual associated with the criminal endeavor,

2. The individual knowingly participated in the endeavor, and

3. The individual sought by his or her actions to make the endeavor succeed.

Principal

Section 2, sometimes referred to as the accomplice statute, allows for an individual to be prosecuted for a crime as a principal, even if that individual did not perform every act of the crime. For indictment of a § 2 charge, a separate crime must exist that the individual helped carry out. The government must prove that a criminal act was committed by a principal and that the individual who is the subject of indictment aided and abetted in the commission of that criminal act.

Section 2(a) is directed at an individual who aids and abets in the carrying out of crime; § 2(b) is directed at an individual who causes another to commit a crime, independent of the guilt or innocence of the individual they caused to commit the crime.

An individual may be convicted of aiding and abetting even if the individual is not charged in the indictment, so long as the jury receives proper instruction and the individual had appropriate notice of the possible charge.

Association

The first element the government must prove is that the individual associated with the criminal endeavor. For purposes of § 2, association is held to mean the individual shared the criminal intent with the principal of the crime.

For example: An individual met with a group of individuals on the premise of assisting the group prepare tax returns falsely claiming refunds of all withheld taxes. Each member of the group paid a fee to participate in the meeting.

Knowingly Participated

The second element the government must show is that the individual knowingly had active participation or encouragement or some affirmative act designed to further the crime.

For example: The individual gathered the group together with the specific intent of instructing the group on how prepare a tax return in a manner that would claim a refund of withheld taxes, to which the group members were not entitled by law.

Attempted to Make the Endeavor Succeed

The third element the government must show is the individual pursued the success of the endeavor.

For example: The individual provided the group with a step-by-step instruction booklet on how to claim refund of withheld taxes, to which they were not entitled.

In cases where false returns are prepared, in which the taxpayer does not appear to be aware of the falsity of the return, the government will use Title 26, United States Code, § 7206(2), aiding in preparation/filing of false return, as the charging vehicle because § 7206(2) does not require the criminally responsible person, e.g., the taxpayer, to commit the underlying offense, whereas, § 2(a) does and therefore would not be appropriate in this instance.

In cases where a false claim for refund is presented to the IRS, the government will typically charge a violation of Title 18, United States Code, Section 287, filing false claim for refund, as the underlying charge to § 2(b), aiding and abetting.

Venue

The venue, for purposes of § 2, will occur in any district in which the underlying offense took place and in the district where the aiding and abetting took place.

Statute of Limitations

The statute of limitations for a § 2 prosecution, is the statute of limitations applicable to the substantive charge.

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