Kevin K. answered • 06/10/19
Criminal Justice Professional Specializing in Research and APA Style
Yes, an accessory commits a separate criminal act. Title 18 U.S.C. § 2 provides:
(a)Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.
(b)Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal. (https://www.law.cornell.edu/uscode/text/18/2)
The elements of the offense of accessory require, 1) an offense against the United States, 2) aiding, abetting, counseling, commanding, inducing, or procuring its commission and is punishable as a principal under (b). The government need not prove the guilt of the principal at trial of the accessory although it would help, especially if the defendants are tried together! It is sufficient to prove the crime occurred and the accessory performed an act in furtherance of the crime. Remember, an acquittal is not a finding that the crime did not occur, only that the government did not overcome the presumption of the defendant's innocence and prove guilt beyond a reasonable doubt. The accessory's offense is separate from the principal's under (a), but the sentence is comparable to that of the principal under (b). As a practical matter, the government would weigh the acquittal of the principal against proceeding with an indictment of the accessory and would probably not proceed although not precluded from doing so.
