SCOPE OF CRIMINAL LIABILITY - Principal Liability Defined
From the Crimes and Defenses Deskbook, JA 337 July 2009
Published by the Criminal Law Department, The Judge Advocate General's Legal Center and School, U.S. Army Charlottesville, VA
I. PRINCIPALS. UCMJ ART. 77 - Principal Liability Defined.
1. Text. “Any person punishable under this chapter who: (1) commits an offense
punishable by this chapter or aids, abets, counsels, commands, or procures its
commission; or (2) causes an act to be done which if directly performed by him
would be punishable by this chapter; is a principal.” Article 77.
2. Purpose. Article 77 directs that a person need not personally perform the acts
necessary to constitute an offense to be guilty of that offense. It eliminates the
common law distinctions between principals in the first degree, principals in the
second degree, and accessories before the fact. All of these parties to an offense
are deemed principals, are equally guilty of the offense, and may be punished to
the same extent.
B. Who are “Principals?” The MCM creates two categories of individuals that can be
guilty of an offense as a principal: 1) Perpetrators & 2) Other Parties.
1. Perpetrators. “A perpetrator is one who actually commits the offense, either
by the perpetrator’s own hand, or by knowingly or intentionally inducing or
setting in motion” acts by an agent or instrument which results in the commission
of the offense. MCM, pt. IV, ¶ 1b(2)(a).
a) United States v. Perry, 27 M.J. 796 (A.F.C.M.R. 1988) (holding
accused liable as a perpetrator where, although accused never touched the
stolen property, he directed another airman to grab a paper bag that had
been left temporarily unguarded at a local bar).
b) Suppose Person A intentionally causes an innocent Person B to
commit an offense’s act against Person B’s will. The offense’s mens rea
requirement may be satisfied by Person A’s criminal intent. In such a
case, only Person A is guilty of a crime. United States v. Minor, 11 M.J.
608 (A.C.M.R. 1981) (holding accused liable as a principal to sodomy,
where accused makes himself a party to the co-accused’s threat
compelling a victim’s boyfriend to commit sodomy on victim).
c) Authority of government “agent” or “decoy,” however, may prevent
liability as a perpetrator. United States v. Sneed, 38 C.M.R. 249 (C.M.A. 1968). Accused proposed theft of military property to two other soldiers.
Soldiers informed military authorities and were told to go along with the proposal. Accused subsequently directed one Soldier to load military property on a truck and directed the other Soldier to drive away with the military property. Because the Soldiers were government “agents or decoys,” the government never lost control or possession of the military
property and their acts did not constitute a wrongful taking. Under the
circumstances, the accused never acquired possession, dominion, or
control; conviction for larceny reversed, and lesser included offense of
attempted larceny affirmed. See also United States v. Klink, 14 M.J. 743
(A.F.C.M.R. 1982) (larceny upheld where accused, along with assistance
of two government operatives, actually took goods from a government
warehouse, carried them to a
