United States District Court, E.D. Virginia, Richmond Division
ROBERT E. PAYNE, Senior District Judge.
This matter is before the Court on DEFENDANT'S RENEWED MOTION FOR JUDGMENT OF ACQUITTAL, OR IN THE ALTERNATIVE FOR A NEW TRIAL (Docket Nos. 47 & 48) ("Motion"). For the reasons set forth herein, DEFENDANT'S RENEWED MOTION FOR JUDGMENT OF ACQUITTAL, OR IN THE ALTERNATIVE FOR A NEW TRIAL (Docket Nos. 47 & 48) will be denied.
On April 1, 2014, Dilade McCoy ("McCoy") was charged in three counts of a four-count Indictment in the Eastern District of Virginia, Richmond Division. (Docket No. 11.) A second defendant, Tamara Williams ("Williams"), was also charged in three of the four counts. Count One charged both McCoy and Williams with Conspiracy to Distribute and to Possess with Intent to Distribute Cocaine Hydrochloride, in violation of 21 U.S.C. § 846; Count Two charged both McCoy and Williams with Possession with Intent to Distribute Cocaine Hydrochloride, in violation of 21 U.S.C. §§ 841(a) & 841(b)(1)(B)(ii); Count Three charged only Williams; and Count Four charged only McCoy with Possession of Ammunition by a Convicted Felon, in violation of 18 U.S.C. § 922(g)(1).
On April 11, 2014, McCoy and Williams were arraigned, and the trial was scheduled for June 16, 2014. Williams entered a guilty plea to Count One. (Docket No. 17.) McCoy's case was tried to a jury as scheduled.
On June 7, 2014, nine days before trial, the United States filed proposed jury instructions. (Docket No. 21.) The United States included an instruction on aiding and abetting as proposed instruction number 30. McCoy filed a document entitled DEFENDANT'S PROPOSED JURY INSTRUCTION [sic] AND OBJECTIONS. (Docket No. 25) wherein McCoy stated that he had "reviewed the Jury Instructions submitted by the United States, and, excepted [sic] as noted below, has no objection to the Proposed Instructions." (Docket No. 25, at 1.) With regard to Proposed Instruction 30, he stated:
B. Instruction 30 - Aiding and Abetting. At this time counsel does not believe the evidence will support an instruction for Aiding and Abetting but respectfully prays the Court will take this objection under advisement until the evidence has been heard.
(Docket No. 25, at 2.) On June 12, McCoy filed a MOTION IN LIMINE (Docket No. 28) which regard to potential evidence. A conference call took place on June 13 to address the MOTION IN LIMINE. During the conference call, counsel for the United States inquired whether the Court or defense counsel wished to discuss the proposed jury instructions. The Court advised that the instructions would be addressed during the charge conference and that counsel would receive a copy of the Court's proposed instructions. Counsel for the Defendant did not ask to address the Government's proposed instructions at that time, did not raise any issue with regard to unfair surprise or lack of notice regarding the proposed aiding and abetting instruction, and did not request a continuance in order to prepare a defense to the aiding and abetting theory.
The trial began on the morning of June 16, 2014 and, before jury selection, counsel for both parties advised the Court that there were no pretrial matters that needed to be addressed. The jury was selected, and counsel gave opening statements. At the conclusion of the Government's evidence, counsel for McCoy moved, pursuant to Fed. R. Crim. P. 29, for a judgment of acquittal, which was denied by the Court. The defense called one witness and rested.
During the charge conference, the Court's proposed instructions were reviewed with the parties. That discussion included the aiding and abetting instruction (the Court's Proposed Instruction No. 46). The Court expressed its view that aiding and abetting generally should be charged in the indictment. Counsel for the United States responded that the United States is not required to do so. Trial Tr. Excerpt (Docket Nos. 45 & 53-1), at 16-19.
The reason for the view expressed by the Court is that, as it currently stands (see pages 16-18 herein), the law is that aiding and abetting is implied in every count of an indictment, whether specifically charged or not. In my view, that can deprive defendants of meaningful notice of what they must defend. It allows the Government to shift its theory of the case after the evidence is in and argue for guilt on an uncharged aiding and abetting theory when it perceives that its case for liability as a principal has not come in as expected.
That advantage conferred on the Government by the current law simply ignores the fact that lawyers try cases based on what is charged. They decide what questions to ask and not to ask on that basis. They make, or refrain from making, arguments on that basis. A defense lawyer who presents a defense to a charge on the basis of principal liability because that is the only charged theory is thus at a substantial disadvantage when the Government, after all the evidence is in, shifts its theory from principal liability to aiding and abetting liability. That, in my view, confers an unfair advantage on the Government.
A somewhat more thorny problem created by the notion that aiding and abetting is inherent in every count (whether charged or not) is that courts have no way of knowing whether the grand jury even considered the theory, much less that it found probable cause to believe that the defendant is an aider and abettor. That, in my view, is a significant problem because the defendant who is not charged as an aider and abettor has to risk a trial on a theory that, for all he knows, has never been considered by the grand jury and as to which a grand jury has not found probable cause.
These two points are important because aiding and abetting is, at law and in fact, a different kind of criminal liability than principal liability. And, that is not changed merely because 18 U.S.C. § 2 provides that an aider and abettor shall be punished the same as if he were a principal. Indeed, there is a great, and legally significant, difference between whether a defendant is criminally liable for an offense and how he is to be punished if found guilty of it.
At the conclusion of the discussion of this point between the Court and counsel for the Government, counsel for the defendant stated: "Just for the record, please note my objection to it that was raised pretrial and my continuing objection to that instruction, please." Id . at 19. The Court instructed the jury according to the decisions made during the charge conference, including the aiding and abetting instruction as to Count Two, and the jury began its deliberations. At approximately 4:45 p.m.,  the jury advised that it had a question about Count Two. The question was:
RE: Count Two. Does aiding and abetting another person who possesses drugs with the intent to distribute make the person who is aiding and abetting also guilty of possession with intent to distribute?
Id. at 21. The Court read the question into the record and then asked counsel for their views on how the Court should respond.
Defense counsel responded first, stating, "First, I want the record to reflect that we objected to the aiding and abetting instruction." Id . at 21. The Court responded, "Do you think that it's necessary for you to do that any more than you've already done?" Defense counsel replied, "No, sir, but I just want to preserve the record, to which the Court responded, "The record is preserved." Defense counsel then stated, "Then my position is that the Court does not expand upon the definition of aiding and abetting any more than the instruction that has already been given." Id.
Counsel for the United States then stated, "I would suggest either the Court refer them to the jury instruction for aiding and abetting or rereads, as the Court sees fit, the aiding and abetting instruction." Id . at 21-22. The Court asked, "What is wrong in answering this question in the following way: Yes?" Id . at 22. There was further discussion with counsel, during which the Court stated that perhaps the instruction should not have been given because aiding and abetting was not charged in the Indictment and that the absence of such a charge can affect a defendant's preparation to defend against it (see id. at 16-19, during charge conference, and id. at 22-23, during the discussion regarding jury question). Also, it was recognized that the law of the circuit did not require that aiding and abetting be charged. During that discussion, defense counsel stated, "But it's for those purposes [referring to a possible appeal] that I just wanted to preserve the record, " to which the Court responded, "You have preserved it. You don't want it given at all, period." Id . at 23. After discussion with counsel, the Court answered the jury's question as follows:
All right. As to your question on aiding and abetting, the question is: Does aiding and abetting another person who possesses drugs with intent to distribute make the person who is aiding and abetting also guilty of possession with intent to distribute?
The instruction on aiding and abetting is instruction No. 46, and I refer you to that instruction, which you can read at your leisure, but let me say the following about it: That instruction says in the second sentence of the first paragraph of instruction 46, "A person may violate the law even though he or she does not personally do each and every act constituting the offense if that person aided and abetted the commission of the offense."
And that's because the law says that whoever aids and abets the commissions of an offense is guilty, and on the instruction it says "is punishable as a principal."
"Punishable as a principal" means if you aid and abet the commission of an offense, you are guilty of committing that offense. That's what it says.
Now, you need to keep in mind that Count Two is possession with intent to distribute cocaine hydrochloride. So before anybody could be convicted of aiding and abetting the commission of that offense, it must be first proved beyond a reasonable doubt that somebody did commit that ...