Bozza v. United States , 330 U.S. 160 ( 1947 )

Mr. Justice Douglas, Mr. Justice Murphy, and Mr. Justice Rutledge

dissenting as to the affirmance of the judgment on count one.

We are of the view that to convict one as an aider and abetter in engaging in or carrying on a distillery business with intent “to defraud” the United States of the tax on the distilled spirits, 53 Stat. 319, 26 U. S. C. § 2833 (a), evidence is necessary which shows that by some act of concealment he promoted the fraud, or by counsel and advice furthered the unlawful scheme, or in fact had some interest in the project.¹ See United States v. Cooper, 25 Fed. Cas. 627, 629; United States v. Logan, 26 Fed. Cas. 990, 992; Seiden v. United States, 16 F. 2d 197, 199; Partson v. United States, 20 F. 2d 127, 129; Anderson v. United States, 30 F. 2d 485, 487. Aiding and abetting in the illicit manufacture of liquor is one thing.² Aiding and abetting in carrying on the business with intent to defraud the United States of a tax is quite a different matter, and requires a different test, if the two offenses are not to be blended. The evidence in the case and the instructions given the jury³ seem to us inadequate to sustain a conviction under count one, charging Bozza with aiding and abetting in a tax fraud scheme.

In view of this conclusion, Mr. Justice Rutledge reserves expression of opinion concerning the legality of the sentence.

1 Judge Learned Hand, after reviewing the various definitions of aiding and abetting, said: “It will be observed that all these definitions have nothing whatever to do with the probability that the forbidden result would follow upon the accessory’s conduct; and that they all demand that he in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed. All the words used— even the most colorless, 'abet’—carry an implication of purposive attitude towards it.” United States v. Peoni, 100 F. 2d 401, 402.

2 Thus § 2833 (a) makes it an offense to “carry on the business of a distiller without having given bond as required by law.” Section 2834 makes it unlawful to make or ferment mash, fit for distillation, in any building or on any premises other than an authorized distillery.

3 “. . . if you find that he was merely an underling, serving at the beck and call of an employer and nothing more than [sic] that would not justify your finding him to be engaged in the business of a distiller. But if from the evidence you conclude logically that he aided and abetted in the carrying on of this business, then he would be chargeable as a principal. . . . Aiding and abetting is something more than merely committing an act which may have the effect of assisting or furthering a criminal transaction. Before a defendant can be held as an aider and abetter the government must prove beyond a reasonable doubt that he committed an act which furthered or assisted the criminal transaction, and at the time he committed the act he knew that a crime was in process of commission, and with that knowledge he acted with intent to aid and abet in the criminal transaction.” While the above charges were requested by defendant, we nevertheless feel that the failure of the instructions to satisfy the standard we suggest is an error which we should notice. Sibbach v. Wilson & Co., 312 U. S. 1, 16.