U.S. v. Gosselin, 62 M.J. 349

Core Criminal Law Subjects: Crimes: Article 77 - Principals Pre-2019 offenses

1. although an accused may not be the primary actor in an offense, he may be held liable as a principal to the crime if he aids, abets, counsels, commands, or procures its commission
2. the elements of aiding and abetting an offense under Article 77, UCMJ, are: (1) the specific intent to facilitate the commission of a crime by another; (2) guilty knowledge on the part of the accused; (3) that an offense was being committed by someone; and (4) that the accused assisted or participated in the commission of the offense
3. for an accused to be a principal under Article 77, UCMJ, and thus to be guilty of the offense committed by the perpetrator, he must (1) assist, encourage, advise, instigate, counsel, command, or procure another to commit, or assist, encourage, advise, counsel, or command another in the commission of the offense; and (2) share in the criminal purpose of design; Article 77 has been generally interpreted to require an affirmative step on the part of the accused; mere inactive presence at the scene of a crime does not establish guilt; the law requires concert of purpose or the aiding or encouraging of the perpetrator of the offense and a conscious sharing of his criminal intent
4. in some circumstances, inaction may make one liable as a party, where there is a duty to act; if a person has a duty to interfere in the commission of an offense, but does not interfere, that person is a party to the crime if such a noninterference is intended to and does operate as an aid or encouragement to the actual perpetrator
5. to establish liability for aiding and abetting a crime, it is not sufficient to demonstrate mere presence at the scene of the crime; where an accused did not take any affirmative action to assist in the commission of an offense, failure to take affirmative measures to prevent the commission of the offense does not in any way establish guilt as a principal

Trial Stages: Merits: Guilty Pleas

1. if the admissions made by an accused at his providence inquiry do not establish each of the elements of the alleged offense, the guilty plea must be set aside
2. the accused’s guilty plea to wrongfully introducing illegal mushrooms onto a military base under an aiding and abetting theory was improvident where the record did not reflect that the accused had the intent to share in the criminal purpose of introducing the mushrooms or that he participated in the act of introducing mushrooms by taking an affirmative step
3. conclusory responses by an accused to a military judge’s questions regarding his liability as an accomplice are not sufficient to find the accused’s plea provident; conclusions of law alone do not satisfy the requirements of Article 45, UCMJ, and RCM 910(e); it is not enough to elicit legal conclusions; the military judge must elicit facts to support the plea of guilty; this is especially true where these responses are not supported by the factual statements made by the accused elsewhere in the providence inquiry
4. in this case, even if the accused had a duty to interfere with the introduction of mushrooms onto the base, the military judge failed to establish that the accused’s noninterference was intended to act as aid or encouragement to the perpetrator
5. where the providence inquiry failed to establish that the accused intended to facilitate the perpetrator’s introduction of mushrooms onto a military base or assisted or participated in the commission of the offense, there was a substantial basis in law and fact for questioning the guilty plea

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. an appellate court will set aside a guilty plea where it determines that there is a substantial basis in law and fact for questioning the guilty plea