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December 13, 1982


The opinion of the court was delivered by: Aspen, District Judge:


Defendant Thomas Matook was charged in a three-count indictment with aiding and abetting*fn1 the commission of the following offenses: (1) interstate transportation of stolen securities in violation of 18 U.S.C. § 2314;*fn2 (2) receipt and sale of stolen securities in violation of 18 U.S.C. § 2315;*fn3 and (3) conspiracy to commit the aforementioned offenses in violation of 18 U.S.C. § 371.*fn4 After a bench trial before this Court, Matook moved for acquittal pursuant to Federal Rule of Criminal Procedure 29.*fn5 For reasons set forth below, we find Matook guilty of aiding and abetting the illegal delivery and sale and guilty of aiding and abetting the conspiracy; but not guilty of aiding and abetting the illegal transportation.

I. The Evidence

On July 31, 1980, in Rhode Island, Michael Smith asked his friend Thomas Matook to accompany him on a one-day "business trip" to Chicago. Smith told Matook that he would pay the airfare and "take care" of Matook after the trip. Matook later told government agents that he assumed Smith would pay him $500 to $1,000. In a signed statement introduced at trial, Matook also said: "I realize that Smith was up to criminal activity. However, I did not know what Smith was actually to do in Chicago." Government Ex. M-2. Smith testified at trial that he wanted Matook along as a bodyguard to "watch his back," but allegedly never mentioned his reason to Matook. On August 1, 1980, Smith and Matook boarded a flight from Warwick, Rhode Island, to Chicago. At the time, Smith was carrying $825,000 worth of stolen securities.

At O'Hare Airport in Chicago, Smith and Matook met George McEvers, introduced by Smith as "John" (Martell). The three men rode together in a cab from the airport to the Bismarck Hotel in Chicago. Smith later testified that the only mention of the securities during the cab ride came when Martell asked Smith if he was "carrying what he had." Smith also testified that at the Bismarck, outside the presence of Matook, he gave one of the stolen securities to Martell.

Later, at the Bismarck, Smith, Matook and Martell met Patrick Hayes, an undercover Chicago police officer. Martell introduced Matook to Hayes as "Victor." At one point, Matook stood outside of a hotel room door while Smith, Martell and Hayes met within. Martell arranged to dispose of all the stolen securities through Hayes.

Martell and Hayes then walked from the Bismarck to the Continental Bank. Smith and Matook followed closely, looking around continuously as they walked. At the bank, Smith handed the securities to Martell in a manilla envelope. Matook sat next to Smith at that time. Then Martell and Hayes entered a conference room. Matook stood and watched outside of the conference room. As other government agents (at a pre-arranged signal from Hayes) approached the conference room to arrest Martell, Matook took off to alert Smith. Shortly thereafter, Smith and Matook and the other co-conspirators were arrested.

Matook is charged in each count with aiding and abetting the commission of the crimes described. The two components of aiding and abetting are: (1) an act on the part of the defendant which contributes to the execution of a crime; and (2) the intent to aid in its commission.*fn6 United States v. Greer, 467 F.2d 1064, 1069 (7th Cir. 1972). Despite his presence with the co-conspirators before and during the commission of the crimes, Matook denied knowing anything about the stolen securities. Specifically, Matook contends that he never had knowledge of the stolen securities until subsequent to his arrest. Smith testified that at no time prior to their arrest was Matook told about the stolen securities.

The principal question presented by the evidence is whether Matook had the requisite intent to find him guilty as an aider and abettor on each of the charges discussed below.

II. Count I: Conspiracy

The federal crime of conspiracy has two basic elements: (1) an agreement between two or more persons to commit a crime; and (2) an overt act in furtherance of the illegal agreement. 18 U.S.C. § 371. Since he is charged with aiding and abetting a conspiracy, once the conspiracy has been established, it must also be shown that Matook aided and abetted the conspiracy. The juxtaposing of the offenses of aiding and abetting and conspiracy in the same count of an indictment provide a basis for broadly expanding criminal liability with respect to complicitous parties. An aider and abettor is punished for assisting in the commission of a crime. A conspirator is punished for joining with one or more others in a plan to commit a crime regardless of whether the planned crime is actually committed. When aiding and abetting principles are combined with those of conspiracy, the law approaches the outer limits of culpability based upon complicity.*fn7

Nevertheless, the relevant federal statutes provide that aiding and abetting a conspiracy is indeed an offense. Federal conspiracy is a separate substantive offense; on its face, the aiding and abetting statute applies to all substantive offenses. 18 U.S.C. § 2. The Supreme Court has implicitly recognized that one may be convicted for aiding and abetting a conspiracy. United States v. Falcone, 311 U.S. 205, 61 S.Ct. 204, 85 L.Ed. 128 (1940). See also United States v. Simpson, 11 F.2d 591 (4th Cir. 1926), cert. denied, 271 U.S. 674, 46 S.Ct. 488, 70 L.Ed. 1145 (1926). However, an aider and abettor to a conspiracy must have known that a conspiracy existed. Falcone, supra, 311 U.S. at 208, 61 S.Ct. at 205; Direct Sales Co. v. United States, 319 U.S. 703, 709, 63 S.Ct. 1265, 1269, 87 L.Ed. 1674 (1943).

A defendant is not culpable of aiding and abetting a conspiracy merely by aiding and abetting the commission of a crime which is the object of a conspiracy, see Pinkerton v. United States, 328 U.S. 640, 643, 66 S.Ct. 1180, 1182, 90 L.Ed. 1489 (1946), or by associating with persons who are members of a conspiracy. Panci v. United States, 256 F.2d 308, 312 (5th Cir. 1958). What must be shown is that: (1) the defendant knew the conspiracy existed, Falcone, supra; (2) he understood the essential nature of the plan, Greer, supra, 467 F.2d at 1067, United States v. Andolschek, 142 F.2d 503, 507 (2d Cir. 1944); and (3) he sought to make the plan succeed. These are the three components of the state of mind requirement for aiding and abetting a conspiracy.*fn8

Turning to the facts of the present case, there is at least a reasonable doubt as to whether Matook was aware of a conspiracy before he arrived in Chicago. Smith and Matook both stated that Matook knew nothing specific. There is no evidence that prior to departure Matook had contact with anyone in Chicago or that Matook had agreed to join with those in Chicago. There is also no proof that Matook had information from which he should reasonably conclude that the venture was one which would typically require other complicitous actors. See, ...

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