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Ask the Lawyer: The many nuances of 'aiding and abetting'

Aug. 13, 2014 - 05:17PM   |  
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Q. Can a service member get in trouble for returning to base in a car with a friend who has pot with him in the car or on his person?

A. Wrongfully introducing a controlled substance onto a military installation violates Article 112a of the Uniform Code of Military Justice.

However, the concept of “guilt by association” does not apply under the UCMJ. So if a service member is in a vehicle with someone who possesses a controlled substance and that vehicle enters a military installation, the important question for the nonpossessor becomes this: Did he or she do anything to aid or abet the wrongful introduction?

Anyone who “aids, counsels, commands, or encourages the commission of an offense” is known as an “aider and abettor” and violates Article 77 of the UCMJ. An aider and abettor usually can be punished as though he or she was the actual offender, according to the Manual for Courts-Martial.

But military courts have long held that merely being present at the scene of a crime is “not sufficient” to establish liability for aiding and abetting, as the U.S. Court of Appeals for the Armed Forces noted in U.S. v. Stephen P. Gosselin II (2006). Furthermore, “failure to take affirmative measures to prevent the commission of the larceny does not in any way establish guilt as a principal.”

For the nonpossessor service member to become an aider and abettor to wrongful introduction in the kind of scenario we’re talking about here, guilt or innocence hinges on multiple factors.

According to the court in Gosselin, a service member must have a specific intent to facilitate the commission of a crime by another. He or she also must know someone else was committing the offense and assist or participate in that offense.

Gosselin involved an airman first class who had pleaded guilty to, among other things, wrongfully introducing psilocybin mushrooms onto an air base under the theory of aiding and abetting. The appellant traveled with another airman to a head shop in the Netherlands. While the appellant went to the head shop with the stated intention of buying a dragon statue, the other airman went there with the intent of purchasing hallucinogenic mushrooms.

The appellant knew how to get to the town where the head shop was, and had told the other airman so. But because there was no evidence that the appellant gave the other airman navigational assistance or that the two discussed any shared plans for the mushrooms, the U.S. Court of Appeals for the Armed Forces found the appellant did not properly plead guilty to wrongfully introducing a controlled substance onto a military installation. The charge and its sentence were set aside on appeal.

Service members accused of aiding and abetting a crime should immediately contact a military law attorney.

Mathew B. Tully is a veteran of the wars in Iraq and Afghanistan and founding partner of Tully Rinckey PLLC (www.fedattorney.com/). Email questions to askthelawyer@militarytimes.com.

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