Can an aider and abettor of a prison escape be convicted of aiding and abetting when the escaping principal is acquitted on a necessity defense, and may the aider and abettor independently assert necessity as a defense to aiding and abetting, air piracy, and use of a weapon to commit a crime?

Defendant Ronald McIntosh disappeared on October 28, 1986, during an unescorted transfer from F.C.I. Pleasanton to the federal prison at Lompoc. On November 5, 1986, he landed a helicopter in the Pleasanton recreation yard and flew off with defendant Samantha Lopez, a federal prisoner. Federal authorities apprehended both ten days later in a Sacramento shopping mall where they were buying a set of wedding rings.

Lopez was charged with escape from federal custody under 18 U.S.C. section 751(a). McIntosh was indicted for air piracy under 49 U.S.C. § 1472(i), use of a weapon to commit a crime under 18 U.S.C. § 924(c), and aiding and abetting Lopez' escape under 18 U.S.C. § 752. Escape charges against McIntosh were pending in a separate case. Both defendants asserted a necessity/duress defense, claiming Lopez faced threats of death or serious bodily injury.

The case arose in the United States District Court for the Northern District of California. The government filed a motion in limine to preclude defendants from presenting necessity/duress evidence to the jury. Each defendant filed a written offer of proof in camera to establish the prima facie case required for a necessity/duress instruction. The district court ruled on the motion in this order, which addressed McIntosh's derivative liability, McIntosh's independent necessity defense, and the sufficiency of both offers of proof. The case was later tried. At the close of defendants' evidence, the court ruled that McIntosh was also entitled to the necessity defense on the air piracy and weapon charges because he introduced evidence beyond his offer of proof. The jury was instructed on necessity as to all charges and found both defendants guilty of all charges.

(Lynch, J.)

No. If Lopez is acquitted by reason of necessity, McIntosh cannot be convicted of aiding and abetting her escape, and McIntosh may independently raise necessity to the aiding and abetting charge. The court also held that McIntosh's pretrial offer of proof was insufficient as to the air piracy and weapon charges.

An aider and abettor can be convicted even if the principal is not identified or convicted, but only if proof shows that an underlying crime was committed by someone. United States v. Powell, 806 F.2d 1421, 1424 (9th Cir.1986); Shuttlesworth v. Birmingham, 373 U.S. 262, 265 (1963). The question is therefore whether Lopez commits a criminal offense if her defense succeeds. That turns on whether the defense is a justification or an excuse.

Justification defenses mean the act is not wrongful; excuse defenses mean the act is wrongful but the actor is not held accountable. Excuses are personal to the actor, so a third party may still be liable. Justified acts may lawfully be assisted. Duress is generally an excuse, while necessity is a justification. United States v. Richardson, 588 F.2d 1235, 1239 (9th Cir.1978). Lopez does not claim her will was overborne; she claims she made the correct choice by avoiding a greater harm. Her defense most nearly resembles necessity, and the government agrees. A necessity acquittal means no crime was committed by a principal, so McIntosh cannot be liable as an aider and abettor and is entitled to his requested instruction.

McIntosh may also assert his own necessity defense. Necessity applies when a person faces a choice of two evils and commits a crime to prevent an imminent harm that no available option could prevent, including harm to unrelated third persons. United States v. Dorrell, 758 F.2d 427, 430-31 (9th Cir.1985). McIntosh must show immediate threats of death or serious injury, a good faith and objectively reasonable belief in them, and no reasonable legal alternative, plus, for the aiding and abetting charge, that Lopez submitted to authorities after reaching safety. United States v. Bailey, 444 U.S. 394, 410-13 (1980).

An offer of proof must be sufficient as to every element. Lopez's offer, and McIntosh's offer as to aiding and abetting, were sufficient, conditional on matching proof at trial. McIntosh's offer was insufficient on the air piracy and weapon charges because it made no showing that no reasonable, legal alternative existed to violating those laws.