U.S. v. Simmons, 63 M.J. 89

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

1. to be guilty as a principal under an aiding and abetting theory, a person 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; 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; however, mere presence at the scene of a crime does not make one a principal
2. establishment of a duty to intervene, without more, does not per se satisfy the requirement of a shared criminal purpose under Article 77, UCMJ; failure to act in accordance with a legal duty can reflect criminal intent; however, this is a fact-specific inquiry
3. Article 77, UCMJ, is conjunctive; it requires a finding of encouragement, for example, a result plus an intent

Trial Stages: Merits: Guilty Pleas

1. a military judge may not accept a guilty plea unless he makes such inquiry of the accused that satisfies him of a factual basis for the plea
2. the accused must admit every element of the offenses to which he pleads guilty; the factual predicate is sufficiently established if the factual circumstances as revealed by the accused himself objectively support that plea
3. appellant’s plea of guilty to aiding and abetting the assault of a subordinate by another Marine was improvident because he failed to admit to sharing in the criminal purpose; although appellant admitted that he had a duty to intervene and stop the assault because he was the NCO in the victim’s platoon but did not do so, the facts did not establish that appellant shared the assailant’s criminal intent as appellant specifically denied any prior knowledge of assailant’s intent to assault the victim and he did not provide any affirmative assistance to the assailant in the ten seconds it took the assailant to assault the victim; while appellant may have shared the assailant’s intent, without further factual development on the record, the assailant’s actions were too spontaneous and too quick to draw such an inference without further inquiry into the facts; establishment of a duty to intervene, without more, does not per se satisfy the requirement of a shared purpose under Article 77, UCMJ; failure to act in accordance with a legal duty can reflect criminal intent; however, this is a fact-specific inquiry and the facts of this plea inquiry fail to establish such shared intent; as such, there is a substantial basis in law and fact to question the sufficiency of appellant’s guilty plea

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

1. pleas of guilty should not be set aside on appeal unless there is a substantial basis in law and fact for questioning the guilty plea
2. a military judge’s decision to accept a guilty plea is reviewed for an abuse of discretion