U.S. v. Pearson
| Decision Date | 01 February 1982 |
| Docket Number | No. 81-7085,81-7085 |
| Citation | 667 F.2d 12 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Mose Franklin PEARSON, Defendant-Appellant. Non-Argument Calendar. . Unit B * |
| Court | U.S. Court of Appeals — Fifth Circuit |
Carl Ziemba, Detroit, Mich., for defendant-appellant.
Holly Wiseman, Asst. U. S. Atty., N. D. Ala., Birmingham, Ala., for plaintiff-appellee.
Appeal from the United States District Court for the Northern District of Alabama.
ON PETITION FOR REHEARING
Before GODBOLD, Chief Judge, KRAVITCH and HATCHETT, Circuit Judges.
* The Petition for Panel Rehearing is granted, the Petition for rehearing En Banc is denied, and the opinion, 655 F.2d 569, dated September 1, 1981, is clarified.
Mose Franklin Pearson was indicted for importing heroin into the United States, both as a principal and as an aider and abetter of Sonny Murray. Pearson alleges a denial of a fair trial because although the government dismissed charges against the only other principal named in the indictment, the trial court instructed the jury that Pearson could be convicted for aiding and abetting the crime. Because we find that aiding and abetting is not a separate crime with elements of its own, and that Pearson had ample notice of the charges against him, we affirm Pearson's convictions.
A federal grand jury indicted Pearson for conspiring to import heroin into the United States, use the mails to import heroin, and unlawfully distribute and possess with intent to distribute heroin. In Counts II and III, Pearson and Sonny Murray were charged with importing heroin into the United States "aided and abetted each by the other." At the conclusion of the government's case, the district court granted the government's motion to dismiss Murray as a defendant because of insufficient evidence. Nevertheless, the trial court gave the "aiding and abetting" instruction to the jury. The jury returned a verdict against Pearson on all three counts. This court affirmed Pearson's conviction in United States v. King, 517 F.2d 350 (5th Cir. 1975), cert. denied 446 U.S. 966, 100 S.Ct. 2943, 64 L.Ed.2d 825 (1980). Pearson filed a motion in the district court pursuant to 28 U.S.C. § 2255 to vacate his sentence. The district court denied this motion, and this court affirmed the district court in United States v. Pearson, 655 F.2d 569 (5th Cir. 1981). This panel now reconsiders that portion of its opinion concerning the trial court's instruction on aiding and abetting.
While it is a natural initial reaction to analogize aiding and abetting with conspiracy, the two are quite different. Conspiracy itself is a crime, and the existence of a co-conspirator is not only an element of the crime, it is the essence of the crime. In a single trial, if the indictment names two people as the only co-conspirators, and one person is acquitted, then no crime can have been committed. United States v. Espinosa-Cerpa, 630 F.2d 328, 330 (5th Cir. 1980).
Title 18 U.S.C. § 2 does not establish a separate crime of "aiding and abetting." Rather, it allows a jury to find a person guilty of a substantive crime even though that person did not commit all acts constituting the elements of the crime.
18 U.S.C. § 2, does not define a crime. It makes punishable as a principal one who aids or abets the commission of a crime.
One indicted as a principal may be convicted on proof beyond a reasonable doubt that he aided and abetted .... Indeed, in view of the language of the statute, all indictments for substantive offenses must be read as if the alternative provided by 18 U.S.C. § 2 were embodied in the indictment.
United States v. Megna, 450 F.2d 511, 512 (5th Cir. 1971) (citations omitted). See also United States v. Walker, 621 F.2d 163, 166 (5th Cir. 1980). The crime was importing heroin. It cannot be said that the fact that Murray was dismissed meant no crime had been committed, because there was ample evidence that a crime was committed. Heroin was brought into this country illegally. This is the crime with which Pearson is charged, not some separate statutory offense called "aiding and abetting."
When Murray was dismissed, Pearson stood alone before the jury accused of the crime of importing heroin into this country. The government had to prove each element of the crime, but thanks to 18 U.S.C. § 2, it did not have to show that Pearson committed the acts constituting each element.
18 U.S.C.A. § 2, which makes he who aids or abets the commission of an offense punishable as a principal is an alternative charge in every count, whether explicit or implicit, and the rule is well established, both in this circuit and others, that one who has been indicted as a principal may be convicted on evidence showing that he merely aided and abetted the commission of the offense.
United States v. Bullock, 451 F.2d 884, 888 (5th Cir. 1971). Unlike conspiracy, Murray's participation was not an element of the crime in question.
In order to sustain a conviction for aiding and abetting, the evidence must show that defendant was associated with the criminal venture, participated in it as in something he wished to bring about, and sought by his action to make it succeed. Thus, to sustain this conviction, the evidence and reasonable inferences therefrom must show that defendant knew that a narcotics distribution was occurring, that he associated himself with the act, that he participated in it with a desire that it be accomplished, and that he committed some overt act designed to make it a success. Defendant must have shared the criminal intent or purpose and assisted in the accomplishment of that purpose.
United States v. Martinez, 555 F.2d 1269, 1272 (5th Cir. 1977) (citation omitted).
Because "all indictments for substantive offenses must be read as if the alternative provided by 18 U.S.C. § 2 were embodied in the indictment," Megna, 450 F.2d at 512, the words "aided and abetted each by the other" in Pearson's indictment were wholly extraneous and had no effect on the crime charged, that of importing heroin. They did not add an offense to the indictment, nor did they limit the charge of importing heroin.
Pearson brings to this panel's attention the recent Fifth Circuit case United States v. Salinas, 654 F.2d 319 (5th Cir. 1981), which was released three days before this panel's prior opinion in this case. Pearson contends that the Salinas opinion reaches a different result. If so, we would be bound to follow the prior panel opinion. Ford v. United States, 618 F.2d 357, 361 (5th Cir. 1980).
While Salinas does contain some loose wording concerning the "crime of aiding and abetting," we do not believe that, read as a whole, Salinas mandates a conclusion different from the one reached above. Salinas states that "where the evidence proves facts different from those alleged in the indictment-resulting in variance-the defendant may be deprived of notice of the details of the charge against him." 654 F.2d at 324 (emphasis added). The Salinas court was concerned about the variance between the indictment and the proof at trial rather than whether the government had failed to prove an "element" of the "crime" of aiding...
To continue reading
Request your trial
-
U.S. v. Pepe
...as a principal one who aids and abets a crime does not establish a separate crime of "aiding and abetting." See United States v. Pearson, 667 F.2d 12 (5th Cir. Unit B 1982). That statute states:Sec. 2. Principals(a) Whoever commits an offense against the United States or aids, abets, counse......
-
U.S. v. Stewart
...cannot demonstrate that he was "unduly prejudiced" by the variance as would warrant reversal of his conviction. United States v. Pearson, 667 F.2d 12, 15 (5th Cir.1982). Appellant also contends that his drug related convictions must be reversed because the government failed to meet its burd......
-
United States v. Cabello
...counsels, commands, induces or procures its commission, is punishable as a principal." (emphasis added)); United States v. Pearson , 667 F.2d 12, 13 (5th Cir. Unit B 1982) (per curiam) ("[A]iding and abetting is not a separate crime with elements of its own."). Thus, says Cabello, the court......
-
Fitch v. State
...The determination of whether a variance affects the defense will have to be made based upon the facts of each case. United States v. Pearson, 667 F.2d 12, 15 (5th Cir.1982)." Smith v. State, 551 So.2d 1161, 1168-69 (Ala.Crim.App.1989); Hunt v. State, 659 So.2d 933, 950 (Ala.Crim.App.1994), ......