Brief of Amicus Curiae National Association of Criminal Defense Lawyers in Support of Defendant-Appellant’s Petition for Rehearing or Rehearing En Banc.
Argument: The panel opinion broadens the definition of “substantial step,” contravening Supreme Court and Circuit precedent and raising constitutional concerns. A “substantial step” is conduct “toward” the commission of the object offense. Davis improperly broadens statutory attempt offenses, with constitutional implications. Requiring a substantial step “toward” the commission of the object offense strikes the right balance between protecting the public and avoiding overcriminalization. Davis’s redefinition of the actus reus for attempt has broad implications.
Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner.
Argument: The Majority Rule is consistent with basic principles of the law of aiding and abetting. To prove aiding and abetting, the government must establish that the defendant participated in and sought to facilitate the commission of the principal’s crime. To prove aiding and abetting of a crime with a predicate-offense element, the government must establish that the defendant participated in and sought to facilitate the entire crime, not merely the predicate offense element. As applied to aiding and abetting a violation of 18 U.S.C. § 924 (c), these principles require the government to establish that the defendant participated in and sought to facilitate the use or carrying of the firearm during and in relation to the predicate offense. The Tenth Circuit’s rule eliminates both the actus reus and the mens rea requirements for aiding and abetting.