UCMJ Article 77: Principals - Aiding, Abetting, Counseling, Commanding, Or Procuring
At Bilecki Law Group, we defend service members charged under the UCMJ which includes service members who did not actually perform the crime and charged as a result of the instructions defined under Article 77 of the UCMJ.
What Is Article 77 Of The UCMJ?
Article 77 does not define an offense under the UCMJ. Rather, it makes clear that a person who did not personally perform an act charged may still be criminally responsible for that offense. If the evidence shows that the accused did not actually commit the offense, but may be criminally responsible as one who aided and abetted, commanded, counseled, procured, or caused the commission of the offense, Article 77 would apply.
Here at Bilecki Law Group, we’ve defended countless cases against abuse and misuse of the UCMJ. In doing so, Article 77 has become what we like to call the “Blue Falcon” article of the UCMJ. Those in military circles don’t need us to define what a Blue Falcon is, but you can Google it if you really want to know.
We call this the Blue Falcon article because some buddy of yours went way too far, got way too drunk, and got you way too involved when they were on their way to committing a crime according to the UCMJ. Now, the military justice system is coming to destroy your buddy and thanks to Article 77, they are out to destroy you as well. If you don’t take aggressive action to defend yourself, your buddy is about to cost you everything.
Can I Be Charged For Crimes I Don’t Commit Under The UCMJ?
If you’ve been labeled a principal to a crime you didn’t commit as a result of Article 77, you’re likely in shock right now that this can even be happening to you. Under Common Law of the United States, courts will make a distinction between the principle of the first degree (perpetrator), a principal of the second degree (the aider or abettor), and accessory after the fact (any individual that provides encouragement or aide before the crime is committed).
The UCMJ offers no such distinction. Meaning, if you are perceived by the prosecution to have taken part in any way, they will charge you with the crime itself. It doesn’t matter if you didn’t pull the trigger, take the drug, commit the rape, or commit the fraud, the military justice system is about to roll over you with full force.
This is because the military justice system was not designed to prioritize justice. The military justice system is designed to create order and maintain discipline within the ranks. For that to work, they need to make an example out of as many service members as possible in order to scare others into compliance. That’s why they don’t care about coming after you for a murder you didn’t commit, because they will get their example all the same. It’s not right. It’s not justice and in the case of Article 77, it means your Blue Falcon buddy is about to cost you everything unless you fight back.
What Does the Prosecution Have to Prove To Convict Me As A Principal?
Article 77 is not an actual charge, but rather an instruction on who can and cannot be called a principal to a crime. The crime itself is governed by whatever respective article of the UCMJ that the perpetrator is accused of violating. That means if it’s an AWOL or UA case, it will be governed by Article 86 of the UCMJ. If it is a sexual assault case it will be governed by Article 120 of the UCMJ and so on.
What the prosecution will then do to you is add the following element at the end. That you, (aided and abetted) (counseled) (commanded) (procured) (caused) the perpetrator to commit the offense. That’s a problem for you, because the perpetrator could be 100% guilty in an obvious manner that’s impossible to defend. He was found drunk, drugged, and passed out on the CG’s desk with a prostitute by the MPs and security got the whole thing on camera.
Meanwhile, you’re the guy who joked about how funny it would be for the CG to walk in on such a scene and the Blue Falcon actually pulled it off. You don’t even need to be present at the scene of the crime for the government to convict you and hell, you could have even been in another country at the time and the prosecution will still come after you if they think you played a role.
Article 77 Turns Military Esprit de Corps And Camaraderie Into A Liability
In many cases where a service member is identified as a principal and charged as if they had committed the crime, the poor decision resulted from you trying not to be a Blue Falcon yourself. You knew your buddy was doing or planning to do something stupid and yet, the enlisted code is that you don’t rat out your buddy. In foreign lands, you guys had nothing but each other to rely on when the first snap and crack of a bullet was heard overhead and that culture is hard to put down.
You and your buddy fought it out in the streets of Fallujah together. You and your buddy grinded through the valleys and mountains of Afghanistan, lost good friends, but you both made it out. You and your buddy were there in Kabul during the evacuation saving women and children while surrounded by the enemy you fought for years. This means when your buddy calls you and says, “hey, I’m planning to do something stupid and I need a ride” or “Sh*t, I did something stupid I need you to help me cover it up and hide this in your room”; it is hard to say no.
How Can I Fight Back Against Charges And Crimes I Didn’t Commit?
As it pertains to your defense, you have to remember that your buddy might be dead in the water. He was found with a few square groupers and that’s that. Your freedom and the preservation of everything you have worked for hinges on the prosecution’s ability to prove you had knowledge of the crime or assisted before or during the act. If you have ever taken a stand and fought in your life, here is where you stand and where is where you fight.
It is remarkably difficult, if not impossible, in some cases for the prosecution to prove you had knowledge of the crime. That won’t stop the prosecution from charging you. That’s because what they are trying to do is scare the hell out of you and get you to admit defeat under the hopes of getting some mercy. The military justice system rarely dispenses mercy because they need their “examples” above all to function.
A good military defense attorney will do their own investigation and find key facts or witnesses that raise questions over how much you actually knew. Even if the evidence points towards your knowledge, a good defense attorney may be able to reduce the sentencing based on the extent of your knowledge. Any defense attorney will fight like hell as if your life depends on it, because in many cases, your life, career, and freedom are on the line.
If you are being investigated or charged as a principle for a crime you didn’t commit as a result of Article 77, reach out to us and we’ll shoot you straight as to exactly what you are facing. It doesn’t mean you have to rat your buddy out and rather, it may just mean that you don’t let your Blue Falcon of a buddy drag you down into the abyss with them. Remember, the military justice system will come after you as if you pulled the trigger yourself. You must and if you get us into the fight, we’ll fight to win.