United States District Court, D. Maine
AMENDED  ORDER ON DEFENDANT'S MOTION TO
Brock Hornby United States District Judge
federal grand jury has indicted Inyemar Manuel Suazo on the
charge of conspiring with others to distribute and possess
with intent to distribute fentanyl. Superseding Indictment
(ECF No. 41). The superseding indictment also charges that
Suazo “did aid and abet such conduct.”
Id. at 2. Suazo has moved to dismiss the superseding
indictment as “duplicitous and impermissibly
vague.” Def.'s Mot. to Dismiss (ECF 516). He says
it is duplicitous because the single count charges both
“conspiring to commit a substantive offense and aiding
the commission of the object of the conspiracy, ”
id. at 1, which he says are two separate offenses
that cannot be joined in a single count, id. at 1-3
(citing Fed. R. Crim. P. 8(a); United States v.
Newell, 658 F.3d 1 (1st Cir. 2011); Iannelli v.
United States, 420 U.S. 770 (1975); and other cases). He
also says the superseding indictment is impermissibly vague
because he does not know when or where he is supposed to have
aided the commission of the fentanyl conspiracy's object.
Id. at 8-9.
motion is Denied. First, aiding and abetting
is a component of every federal crime charged, regardless of
whether the words “aid and abet” are contained in
the indictment. United States v. Marino, 277 F.3d
11, 29 (1st Cir. 2002) (“Aiding and abetting liability
is inherent in every federal substantive crime, ”
including conspiracy.). Since the aiding and abetting charge
is inherent, including it explicitly cannot be grounds for
dismissal. Second, the First Circuit has recognized that a
defendant can be convicted of aiding and abetting a
conspiracy. Id. at 30; see also United States v.
Oreto, 37 F.3d 739, 751 (1st Cir. 1994) (“[M]ost
if not all courts to consider the issue have held that a
defendant may be convicted of aiding and abetting a
conspiracy.”). The First Circuit recently confirmed its
view on the propriety of a jury charge for aiding and
abetting a conspiracy in United States v. Rodriguez,
609 Fed.Appx. 8, 10 (1st Cir. 2015).
seems to think that the superseding indictment against him
does not charge aiding and abetting the conspiracy, but
aiding and abetting the fentanyl distribution or possession
instead. That is not what the superseding
indictment says. It states:
Suazo [and other named defendants] . . . knowingly and
intentionally conspired with each other and others, known and
unknown, to distribute, and possess with the intent to
distribute, a controlled substance, namely four-hundred (400)
grams or more of a mixture or substance containing . . .
fentanyl, and did aid and abet such conduct . . . .
Indictment at 1-2 (ECF No. 41). It is reasonable to read the
antecedent of “such conduct” as the charged
conspiracy, not the distribution or possession. Notably, a drug
conspiracy, unlike ordinary conspiracies, does not require
proof of an overt act in support of the illegal agreement.
United States v. Shabani, 513 U.S. 10, 11
government ultimately argues for a different reading of the
superseding indictment, one more like what Suazo thinks is
charged, that will be a matter to consider in the jury
instructions, and in light of what the evidence at trial will
support. As I said in my November 13, 2018, ruling denying an
earlier motion to dismiss the indictment and for a bill of
particulars, “I will evaluate that argument [that an
aiding and abetting theory is not supported] at the end of
trial, after the evidence has been admitted.” Order on
Def.'s Mot. to Dismiss Indictment or for a Bill of
Particulars (ECF No. 283).
absence of First Circuit cases specifying the elements of
aiding and abetting a conspiracy, I will of course consider
carefully the statements of other Circuits and of
commentators, see, e.g., United States v.
Irwin, 149 F.3d 565, 570-71 (7th Cir. 1998) (aiding and
abetting liability for aiding the formation of the agreement
itself or furthering the conspiracy's object, goal, or
purpose); United States v. Portac, Inc., 869 F.2d
1288, 1293 (9th Cir. 1989) (same); United States v.
Galiffa, 734 F.2d 306, 309-10 (7th Cir. 1984)
(“[O]ne can aid and abet a conspiracy by bringing the
parties together to enter into the illicit agreement, [and] a
person can also be convicted of aiding and abetting a
conspiracy for deeds other than acting as a liaison for the
parties to the agreement” as long as he “know[s]
of the conspiracy's existence at the time of his
act.”); 2 W. LaFave, Substantive Criminal Law
(Oct. 2019) § 12.2(a) (describing argument that
“aiding a conspiracy with knowledge of its purposes
suffices to make one a party to the conspiracy” and
counter-argument that “‘[a] person does not aid
and abet a conspiracy by helping the “conspiracy”
to commit a substantive offense, for the crime of conspiracy
is separate from the offense which is its object. It is
necessary to help the “conspiracy” in the
commission of the crime of conspiracy, that is, in the
commission of the act of agreement.'”); Comment,
Complicity in a Conspiracy as an Approach to
Conspiratorial Liability, 16 UCLA L. Rev. 155, 161-68
(1968) (same). The Supreme Court has had little to say on the
issue. In United States v. Falcone, 311 U.S. 205,
208 (1940), it said that it did not consider the merits of
the government's theory that the defendant there was
“a principal in the conspiracy as an aider or
abettor.” In Direct Sales Co. v. United
States, 319 U.S. 703, 709 (1943), it said that the
Falcone “decision comes down merely to this,
that one does not become a party to a conspiracy by aiding
and abetting it, through sales of supplies or otherwise,
unless he knows of the conspiracy; and the inference of such
knowledge cannot be drawn merely from knowledge the buyer
will use the goods illegally.” In Rosemond v.
United States, 572 U.S. 65, 75-76 (2014), its latest
pronouncement on aiding and abetting liability (not a
conspiracy case), the Supreme Court said that “an
aiding and abetting conviction requires not just an act
facilitating one or another element, but also a state of mind
extending to the entire crime, ” and that “for
purposes of aiding and abetting law, a person who actively
participates in a criminal scheme knowing its extent and
character intends that scheme's commission, ”
id. at 77. I will take all this into account at the
time of the jury charge.
the superseding indictment is not impermissibly vague. As I
have already noted, it need not even have used the words
“aid and abet” for that theory of criminality to
be used at trial. It is the purpose and function of discovery
to alleviate Suazo's uncertainty over what evidence the
government has that he aided and abetted the conspiracy.
the motion is Denied.
 The Order on Defendant's Motion to
Dismiss Indictment dated November 21, 2019, is amended as
follows: (1) the footnotes are re-numbered to reflect this
explanatory footnote; and (2) new footnote 4 (formerly
footnote 3) now contains a corrected citation: United
States v. Lyons, 740 F.3d 702, ...