Yes, you can aid and abet a federal conspiracy in the Fifth Circuit (Part One)

One of the realities that I must tell clients charged with conspiracy counts in the Eastern District of Texas, most often conspiracy to possess with the intent to distribute narcotics, is that you can aid and abet a conspiracy in the Fifth Circuit Court of Appeals, which includes all Texas Federal District Courts.   Thus, the Government will not only submit jury charges for drug conspiracy, which the Fifth Circuit holds to be an independent crime in itself, they will submit a jury charge on aiding and abetting that conspiracy, which will end in the same result if found true beyond a reasonable doubt.

The United States Supreme Court held in the 50s that abetting only applies to substantive counts, not to conspiracy counts.  Pereira v. United States, 347 U.S. 1 (1954).  The Fifth Circuit noted that:

In Pereira the Court, in affirming one defendant’s conviction for conspiring to commit mail fraud and aiding and abetting the commission of mail fraud, rejected the double jeopardy plea. Petitioners had alleged that their conviction on both the substantive counts and a conspiracy to commit the crimes charged in the substantive counts constituted double jeopardy. ‘The Court found that:  The essence of the conspiracy charge is an agreement to use the mails to defraud and/or to transport in interstate commerce property known to have been obtained by fraud…Brading’s conviction does not turn on the agreement. Aiding, abetting, and counseling are not terms which presuppose the existence of an agreement. Those terms have a broader application, making the defendant a principal when he consciously shares in a criminal act, regardless of the existence of a conspiracy.’

See United States v. Cowart, 595 F.2d 1023 (5^th Cir. 1979)