(concurring and dissenting):
I concur in Judge Timbers’ thoughtful opinion in this complex securities fraud case except for its affirmance of the convictions of certain defendants (Drew, Orpheus and Horvat) as aiders and abettors of the commission of certain frauds by others. Since this seems to me to stretch the aiding and abetting concept too far I would reverse the convictions on these counts.1
As Judge Timbers accurately observes, there was ample evidence to support a conviction of all defendants as members of one conspiracy consisting of a combination of several groups, each manipulating Elinvest stock as part of a scheme devised by the central figure in the conspiracy, Van Aken. However, when it comes to the specific substantive crime alleged in each of these counts (see fn. 1), there was no evidence that the alleged aider and abettor knew of the fraudulent transaction, or even of the existence of the other group, much less of the member of that group who acted as the principal in committing the criminal act. For instance there was no evidence that Orpheus, who was in the “Apartment Group,” knew of Baron & Co. and Horvat, or of their sales.
I accept the proposition advanced on the basis of United States v. Bradley, 421 F.2d 924, 927 (6th Cir. 1970), that a person need not have been introduced to a principal to be guilty of aiding and abetting his criminal conduct. But implicit in the concept of aiding, abetting, commanding, counselling, assisting or advising is an understanding by the defendant that he is helping someone else to commit a crime. At least this seems to me to be assumed in Judge Learned Hand’s famous definition of aiding and abetting in United States v. Peoni, 100 F.2d 401 (2d Cir. 1938), which has for years been almost verbatim the standard boilerplate charge on the subject. In Bradley, for instance, the defendant engaged in conduct obviously intended to assist someone in robbing a bank. And in Nye & Nissen v. United States, 336 U.S. 613, 619, 69 S.Ct. 766, 769, 93 L.Ed. 919, 925 (1949), the jury could have inferred that since the defendant had concocted the criminal scheme he aided and abetted the crimes committed by his business subordinates in carrying it out. But it seems to me to place an undue strain on the concept to reason that, once a general conspiracy is shown, a minor or subordinate member who commits some act in furtherance of it thereby becomes an aider and abettor of parallel conduct of which he was unaware on the part of another member whose existence is unknown to him, merely because he should have reasonably foreseen that his conduct might assist others to commit such acts. Although such a foreseeability test might provide a basis for tort liability, see United States v. Greer, 467 F.2d *13471064, 1068-69 (7th Cir. 1972), cert. denied, 410 U.S. 929, 93 S.Ct. 1364, 35 L.Ed.2d 590 (1973), the relationship strikes me as too attenuated to support a criminal conviction on the theory of aiding and abetting. Cf. United States v. Jackson, 526 F.2d 1236, 1238 (5th Cir. 1976). Under this theory a minor figure could be penalized for the acts of others over whom he had no control and with whom he had no real connection, merely because they were members of a broad, loosely-knit conspiracy.
I appreciate that, as Judge Timbers has noted, the trial judge might have instructed the jury pursuant to Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946), that a member of the conspiracy might be convicted of substantive offenses committed by others in furtherance of the conspiracy. This naturally leads one to ask whether, since these defendants might have been convicted of substantive offenses under Pinkerton, it should matter that they were convicted as aiders and abettors. The answer is that, regardless of whether it may be advisable to reconcile the two doctrines, it is unwise to pervert one merely because of the existence of the other. Since a Pinkerton charge was refused and we do not know what result the jury would have reached if one had been given, we cannot uphold the convictions on that basis. This very point was made in Nye & Nissen v. United States, supra, 336 U.S. at 618-22, 69 S.Ct. at 769-771, 93 L.Ed. at 924-926, where the Court, in upholding the conviction of the defendant as an aider and abettor, made it clear that it could not be upheld on the basis of Pinkerton because that theory had not been charged.
. The particular counts I would reverse are the convictions of Drew and Orpheus on Count 13 (securities fraud) for aiding and abetting a sale by Horvat, and the convictions of Horvat on Counts 8, 11 and 12 (securities fraud), and 15 through 18 (mail fraud) for aiding and abetting various sales made by Van Aken, Rosan & Co., or the “Apartment Group.”