The opinion of the court was delivered by: Aspen, District Judge:
MEMORANDUM OPINION AND ORDER
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.
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.
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.
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.
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.