In the
United States Court of Appeals
For the Seventh Circuit
Nos. 10-1430 & 10-1657
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
R OBERT G EORGE,
Defendant-Appellant.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 07-CR-441—Harry D. Leinenweber, Judge.
A RGUED A UGUST 16, 2011—D ECIDED S EPTEMBER 9, 2011
Before C UDAHY and R OVNER, Circuit Judges, and
A DELMAN, District Judge.
C UDAHY, Circuit Judge. This opinion addresses the last
piece of unfinished business in the consolidated appeal
of Michael Spagnola and Robert George: the sufficiency
of the evidence supporting George’s conviction for at-
The Honorable Lynn S. Adelman of the Eastern District of
Wisconsin, sitting by designation.
2 Nos. 10-1430 & 10-1657
tempting to possess with intent to distribute cocaine, in
violation of 21 U.S.C. § 841(a)(1). For the reasons that
follow, we affirm.
I.
Briefly,1 George and Spagnola are half-brothers, and
for reasons that are unclear, they came to the attention of
the Bureau of Alcohol, Tobacco, Firearms and Explosives
(“ATF”) as potentially being inclined toward armed
robbery and drug dealing. In June 2007, the ATF set up a
sting, whereby an ATF informant (or confidential in-
formant, thus “CI”) approached George with an idea
to raid a drug stash house the CI knew about, and to
steal and resell the cocaine. The CI claimed to know a
disaffected drug courier, associated with the stash house,
who would support their robbery efforts. The courier
was actually an ATF agent. (The interactions involving
George and Spagnola were captured on tape, and these
recordings constituted the bulk of the trial evidence.)
George agreed to the CI’s proposed scheme, and he
recruited his half-brother Spagnola into the scheme
sometime around June 11. Spagnola indicated that he
was participating only because George had vouched for
the CI. Throughout June and early July, the four (George,
Spagnola, the CI and the “drug courier” ATF agent) met
1
This panel’s earlier opinion in this appeal features a more
thorough exposition of the underlying facts. United States v.
Spagnola, 632 F.3d 981 (2011).
Nos. 10-1430 & 10-1657 3
several times and developed the plan. Spagnola ob-
tained a gun and ammunition. On June 25, in a meeting
with the CI, George suggested that instead of robbing the
stash house, they could draw out the drug courier and
rob him—thereby minimizing the risk of the operation.
The CI agreed and this became the revised plan. Also
around this time, George indicated that he had a
willing buyer for the cocaine, and that George had some-
one in mind to dispose of five kilos immediately. The three
agreed that the robbery would be on July 12: the three
would meet and drive together to the scene, a forest
preserve.
But on the morning of the planned robbery, George
surprised Spagnola and the CI by declining to attend.
He explained to the CI that he had to watch his son.
George reiterated that he had a purchaser for the antici-
pated yield of cocaine. The CI stated that George would
be paid $1000 per brick for selling the cocaine. In a
separate conversation, between George and Spagnola,
George suggested a man named Eddie as a replace-
ment. Spagnola suggested instead that George enlist
their third brother, John, to replace George. It is not clear
whether George contacted a potential replacement, or
whether Spagnola succeeded in finding one himself.
Spagnola, armed with two guns, continued on to the
scene of the planned robbery. Consistent with the ATF’s
planned sting operation, he was arrested. George was
arrested the next day. After a joint trial, both Spagnola
and George were convicted of conspiracy to possess
with intent to distribute 5 kilograms or more of cocaine,
and attempting to possess with intent to distribute
4 Nos. 10-1430 & 10-1657
cocaine.2 We have already upheld Spagnola’s convictions,
and we accepted George’s counsel’s Anders submission 3
as to several trial and sentencing issues, and as to the
sufficiency of his conspiracy conviction.
II.
The remaining question is whether the evidence was
sufficient to support George’s conviction for attempted
possession of cocaine, notwithstanding his absence on
the morning of the robbery. Because this is an appellate
review of the evidentiary sufficiency of a conviction,
we inquire only into whether, when the facts are viewed
in the light most favorable to the Government, a rational
jury could have found the elements of the crime beyond
a reasonable doubt. See, e.g., United States v. Woods, 556
F.3d 616, 621 (7th Cir. 2009) (citing United States v.
Stevens, 453 F.3d 963 (7th Cir. 2006)). We often describe
this appellate hurdle as “nearly insurmountable.” See, e.g.,
Spagnola, 632 F.3d at 981; United States v. Spells, 537 F.3d
743, 746 (7th Cir. 2008).
Another legal principle is pivotal to this appeal: aiding
and abetting liability, under 18 U.S.C. § 2.4 Under subsec-
2
Spagnola was also charged with and convicted of two weap-
ons charges. See Spagnola, 632 F.3d at 984-85.
3
See Anders v. California, 386 U.S. 738 (1967).
4
At the outset, we note that it is possible to aid and abet a
principal’s attempt crime, including attempted possession of
(continued...)
Nos. 10-1430 & 10-1657 5
tion (a) of that section, “Whoever commits an offense
against the United States or aids [or] abets . . . its commis-
sion, is punishable as a principal.” A sufficient case for
aiding and abetting liability consists of “(1) association
with the unlawful venture, (2) knowing participation in
it, and (3) active contribution toward its success.” United
States v. McNeese, 901 F.2d 585, 608 (7th Cir. 1990). As to the
participation and active contribution elements, “ ‘a high
level of activity need not be shown’ although ‘mere pres-
ence’ and ‘guilt by association’ are insufficient.” United
States v. Sewell, 159 F.3d 275, 278 (7th Cir. 1998) (citations
omitted).5 Oral communication can sometimes be suffi-
cient if it is intended to support the completion of the
crime. See United States v. Sacks, 620 F.2d 239, 241 (10th
Cir. 1980) (affirming a conviction on an aiding and abetting
theory where “[the] evidence plainly shows defendant
acted affirmatively, though only through the act of speak-
ing words calculated to assist in completing the sale.”).
We agree with the Government that George’s acts
leading up to the day of the robbery were sufficient to
support the conviction on an aiding and abetting theory.6
4
(...continued)
narcotics. See United States v. Valencia, 907 F.2d 671, 677 & n.4
(7th Cir. 1990).
5
In like vein, aiding and abetting liability is not to be con-
flated with conspiracy, although the same facts may often
support both.
6
An aiding and abetting instruction was issued to the jury in
this case. Because we need only decide whether a reasonable
(continued...)
6 Nos. 10-1430 & 10-1657
A rational jury could have found that George aided and
abetted Spagnola’s attempt to possess cocaine on the
appointed day. Initially, there is no question that George
associated with this unlawful venture, so the matter
boils down to whether he knowingly participated and
actively contributed to its success.7 We think that the act
of recruiting Spagnola into the conspiracy, although it
occurred about a month before the day of the attempt,
was nevertheless “active contribution to the plan’s suc-
cess.” So was altering the original plan of the robbery
in order to double-cross the drug courier. Moreover, the
jury was entitled to believe George’s representations,
6
(...continued)
jury could have convicted George on any permissible theory of
liability, we do not reach the Government’s weaker argument
that George himself committed an “attempt” despite his
absence on the morning of the robbery. See United States
v. Turner, 551 F.3d 657, 666 (7th Cir. 2008).
7
Further, there is no question that George “knew” the unlawful
nature of the venture, within the meaning of the second of
the three elements described in McNeese. So we consider that
if George “actively contributed,” then he also “knowingly
participated,” and thus all three elements will be satisfied. In
any event, this court has often used formulations of aiding
and abetting liability that contain only two elements. See, e.g.,
United States v. Taylor, 637 F.3d 812, 816 (7th Cir. 2011) (“To
establish that Taylor aided and abetted [the principal], the
government needed to prove that Taylor associated him-
self with the criminal activity and that he voluntarily partici-
pated in it.”). We therefore focus on the “active contribution”
element.
Nos. 10-1430 & 10-1657 7
captured on tape, that he had arranged to dispose of
the cocaine.8
George’s contrary position does nothing to detract
from the significance of his acts leading up to the at-
tempted robbery. Rather, his position amounts to an
argument that the dispositive fact was his absence on
the morning of the robbery. But one need not be
physically present at a crime scene to aid and abet the
principal, because “one who puts in motion or assists in
the illegal enterprise . . . is guilty as a principal even
though he intentionally refrained from the direct act
constituting the completed offense.” United States v.
Garrett, 720 F.2d 705, 714 (D.C. Cir. 1983) (citing to the
legislative history of 18 U.S.C. § 2, H.R. Rep. No. 304, 80th
Cong., 1st Sess. A5 (1947)). See also United States v. Garcia,
242 F.3d 593, 597 (5th Cir. 2001) (“Just as the mere
presence at the scene of the crime is not sufficient, by
itself, to support aiding and abetting liability, mere
absence from the scene does not, by itself, negate such
liability.”) (citations omitted); United States v. Waters, 461
F.2d 248, 251 (10th Cir. 1972). Indeed, requiring physical
presence or contemporaneous contributing acts would
greatly narrow aiding and abetting liability, conceivably
exonerating supportive acts that are indispensable to
8
See, e.g., United States v. Wesson, 889 F.2d 134, 135 (7th Cir.
1989) (“You may ‘abet’ the crime of possession with intent to
distribute by procuring the customers and maintaining the
market in which the possession is profitable, even though
you do nothing else to help the possessor get or retain posses-
sion.”).
8 Nos. 10-1430 & 10-1657
the principal’s crime.9 And we are aware of no particular
limit on the time that may pass between the “active
contribution to the plan’s success,” and the principal’s
crime. Undoubtedly, these considerations—the passage
of time and the presence vel non of the alleged abet-
tor-defendant at the principal’s crime—are important
considerations, but they are not per se decisive of aiding
and abetting liability.
Much of the appeal of George’s argument seems to
derive from the fact that his nonattendance on the day
of the robbery was unplanned. Although the point is
never made explicit, there seems to be a subtle invitation
to treat George as having “withdrawn” from the enter-
prise by absenting himself on the day of the robbery. After
all, if George and Spagnola had planned all along that
Spagnola would commit the robbery without George
present, George’s position (that his preparatory efforts
9
A 1948 Third Circuit case involving organized crime presents
a good example of why the presence at the crime scene, and the
contemporaneousness of the abettor’s assistance, cannot
properly be dispositive:
Amorosa, brought into the group by Silano, guided the
[hijacked] tractor drawn trailer to the house in New
Jersey where it was unloaded, Silano assisting;
Amorosa then said he would dispose of the stolen
goods. All that bespeaks principals in this crime . . . .
The absence of the appellants from the immediate
scene of the [hijacking] is not enough to defeat their
conviction as principals.
United States v. Amorosa, 167 F.2d 596, 599-600 (3d Cir. 1948).
Nos. 10-1430 & 10-1657 9
did not amount to aiding and abetting) would lose
much of its force. But his present argument is in fact
precisely that weak, because he did not effectively with-
draw by failing to participate on the day of the robbery.
See Garrett, 720 F.2d at 714 (explaining that withdrawal
for aiding and abetting purposes mirrors withdrawal in
the context of conspiracy, and “to establish an effective
withdrawal [from a conspiracy], the defendant must
show that he took affirmative action to defeat or disa-
vow the purpose of the conspiracy.”). An abettor cannot
withdraw merely by satisfying himself that his participa-
tion is no longer needed. Id.
For the foregoing reasons, we A FFIRM the judgment of the
district court.
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