4.18.371(2) Pinkerton Charge See Statute
There is another method by which you may evaluate whether to find [defendant] guilty of the substantive charge in the indictment.
If, in light of my instructions, you find beyond a reasonable doubt that [defendant] was guilty on the conspiracy count (Count ___), then you may also, but you are not required to, find [him/her] guilty of the substantive crime charged in Count ___, provided you find beyond a reasonable doubt each of the following elements:
First, that someone committed the substantive crime charged in Count ___;
Second, that the person you find actually committed the substantive crime was a member of the conspiracy of which you found [defendant] was a member;
Third, that this co-conspirator committed the substantive crime in furtherance of the conspiracy;
Fourth, that [defendant] was a member of this conspiracy at the time the substantive crime was committed and had not withdrawn from it; and
Fifth, that [defendant] could reasonably have foreseen that one or more of [his/her] co-conspirators might commit the substantive crime.
If you find all five of these elements to exist beyond a reasonable doubt, then you may find [defendant] guilty of the substantive crime charged, even though [he/she] did not personally participate in the acts constituting the crime or did not have actual knowledge of them.
If, however, you are not satisfied as to the existence of any one of these five elements, then you may not find [defendant] guilty of the particular substantive crime unless the government proves beyond a reasonable doubt that [defendant] personally committed that substantive crime, or aided and abetted its commission.
(1) This instruction is adapted from Sand, et al., Instruction 19-13. The instruction implements the rule laid down in Pinkerton v. United States, 328 U.S. 640 (1946). The instruction can be given even though the indictment does not charge vicarious liability. See United States v. Sanchez, 917 F.2d 607, 612 (1st Cir. 1990).
(2) The model instruction omits the penultimate paragraph of Sand, et al., Instruction 19-13. That paragraph attempts to explain the reason for the Pinkerton rule, namely that co-conspirators act as agents of one another and therefore are liable for each other's acts. The paragraph seems to fall into an area more appropriate for argument, preemptively addressing possible juror concerns about the fairness of a rule of vicarious liability. Such an explanation may be fair ground for closing argument, but it seems out of place in the court's charge.
If a court is inclined to include such a paragraph, it should consider rewording the Sand charge, which reads, "all of the co-conspirators must bear criminal responsibility for the commission of the substantive crimes." The use of "must" seems inconsistent with the principle that the jury can but is not required to hold a defendant vicariously liable on a Pinkerton theory.
(3) The instruction requires that the substantive crime be committed while the defendant is a member of the conspiracy. There is no vicarious liability for acts committed before one joins a conspiracy, United States v. O'Campo, 973 F.2d 1015, 1021 (1st Cir. 1992) (explaining the requirement of contemporaneous participation: "[a]n individual cannot . . . be held reasonably to have 'foreseen' actions which occurred prior to his entrance in the conspiracy"), nor for acts committed after a true withdrawal from the conspiracy. United States v. Rogers, 102 F.3d 641, 644 (1st Cir. 1996) (stating that withdrawal "may insulate [a defendant] from Pinkerton liability for substantive crimes of others that occur after his withdrawal"); United States v. Munoz, 36 F.3d 1229, 1234 (1st Cir. 1994) (stating that the government's burden included proving that co-conspirators' acts were committed "at a time when [the defendant] was still a member of the conspiracy," but affirming the conviction on the grounds that there was no evidence of affirmative withdrawal).
(4) The theory of Pinkerton liability must not be confused with aider and abettor liability. The latter theory requires proof of a higher mental state, United States v. Collazo-Aponte, 216 F.3d 163, 196 (1st Cir. 2000), vacated on other grounds, 532 U.S. 1036 (2001); United States v. Shea, 150 F.3d 44, 50 (1st Cir. 1998), but has a "broader application": it can apply to acts that are not necessarily done pursuant to an agreement between the perpetrator and the defendant. Nye & Nissen v. United States, 336 U.S. 613, 620 (1949).
(5) Although the First Circuit has acknowledged the view in other circuits that the Pinkerton charge should not be given in "marginal case[s]" because of the risk that the jury will draw the inverse of the Pinkerton inference, i.e., the jury will hold the defendant "vicariously liable" for a conspiracy merely because the government shows that others have committed numerous substantive offenses, United States v. Sanchez, 917 F.2d 607, 612 n.4 (1st Cir. 1990) (citing United States v. Sperling, 506 F.2d 1323, 1341-42 (2d Cir. 1974) (Friendly, J.)), the First Circuit seems skeptical of the alleged risk. See United States v. Wester, 90 F.3d 592, 597 (1st Cir. 1996) (rejecting a defendant's argument that a Pinkerton instruction was improper because when various substantive offenses are in issue and the government concentrates its proof on the substantive offenses rather than the conspiracy, there is undue risk that the jury will draw the inverse of the Pinkerton inference, stating "We agree neither with the premise nor the conclusion" and that dealing with such a "complication" is "well within" a jury's ability).