United States v. Johnson

GRABER, Circuit Judge,

concurring in part and dissenting in part:

I concur in the resolution of all issues except as to Defendant Johnson’s conviction on Count 12. In my view the evidence plainly supported his conviction on that count, notwithstanding the reversal on the conspiracy count. In this regard, the majority impermissibly second-guesses the jury and fails to follow our most closely analogous precedent.

Count 12 charged that, in or about August 1998, the defendants (including Johnson) “knowingly transported, or did aid and abet in the transportation of R.D. ..., an individual under the age of 18, in interstate commerce from the District of Montana to Seattle, Washington, ... with the intent that such individual engage in prostitution.” The court gave proper instructions to define the elements of aiding and abetting. The evidence proved beyond a reasonable doubt — and thus the jury was entitled to find — that Johnson was guilty of Count 12 as an aider and abettor.

Title 18 U.S.C. § 2(a) provides that “[wjhoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.” (Emphasis added.) Encouragement to commit a federal crime suffices to hold the encourager criminally liable as an aider and abettor if the person doing the encouraging has the specific intent to facilitate the commission of the crime and the crime is, in fact, committed. We have held that proof of direct encouragement can suffice. United States v. Bancalari, 110 F.3d 1425, 1429-30 (9th Cir.1997). In United States v. Barnett, 667 F.2d 835, 841-42 (9th Cir. 1982), we held that

encouraging and counseling another by providing specific information as to how to commit a complex crime does not alone constitute aiding and abetting. If, however, the person so assisted or incited, commits the crime he was encouraged to perpetrate, his conselor is guilty of aiding and abetting.

In United States v. Ritter, 989 F.2d 318, 322 (9th Cir.1993), we held that evidence of encouragement — extremely similar to what we have in this case — sufficed to sustain a conviction for aiding and abetting the making of an unregistered pipe bomb. In Ritter, the defendant had a conversation with two other men, in which he said that he would like to see another person “go up in flames.” Id. Participation in that conversation was enough to sustain aiding and abetting liability for the manufacture of a pipe bomb intended for that purpose. The majority does not, and cannot fairly, distinguish Ritter.

Barnett referred to counseling the com-missioin of a “complex crime.” 667 F.2d at 841. Nothing in that opinion or in the logic of aider and abettor liability suggests, however, that providing guidance on how *762to commit an uncomplicated crime, followed by commission of that crime, would yield a different result. (“I’ve been thinking of robbing someone. Got any advice?” “Sure. A big truck just delivered money to the bank across the street.”)

In this case, R.D. testified that Defendants Johnson and Thompson were part of the group that recruited her to become a prostitute for Defendant McMillion. McMillion sought specific advice from Johnson about where would be the most lucrative place to transport a specific minor prostitute, R.D. Johnson advised McMillion that an out-of-state location, specifically Seattle, likely would be the most lucrative place to pimp R.D. Considering this piece of evidence in context, one easily and reasonably could infer that Johnson had the specific intent that his advice would be acted on. Finally, McMil-lion indeed acted on Johnson’s advice and took R.D. from Montana to Seattle, where he pimped her. Under established Ninth Circuit precedent, Johnson’s encouragement was sufficient participation to sustain aider and abettor liability for McMillion’s interstate transport of R.D. No other evidence in the case casts doubt on these facts; if anything, the presence of other charges might have helped Johnson by making the foregoing acts seem less egregious.

For these reasons, I dissent from the majority’s reversal of Johnson’s conviction on Count 12.