Pinkerton Co-conspirator Vicarious Liability Theory
It is important to remember that a defendant charged in a conspiracy may also be convicted of individual substantive offenses under the co-conspirator vicarious liability theory first sanctioned by the United States Supreme Court in Pinkerton v. United States, 328 U.S. 640, 646-47, 66 S.Ct. 1180, 1183-84, 90 L.Ed. 1489 (1946). Under Pinkerton, a defendant may be held liable for acts committed by his or her coconspirators that were within the scope and in furtherance of the conspiracy, and were reasonably foreseeable. (“Under well established Eleventh Circuit precedent conspirators are liable for all of the acts and foreseeable consequences of the conspiracy.”) As such, “[e]ach party to a continuing conspiracy may be vicariously liable for substantive criminal offenses committed by a co-conspirator during the course and in the furtherance of the conspiracy, notwithstanding the party’s non-participation in the offenses or lack of knowledge thereof.”
“Liability will not lie [under Pinkerton], however, if the substantive crime ‘did not fall within the scope of the unlawful project, or was merely a part of the ramifications of the plan which could not be reasonably foreseen as a necessary or natural consequence of the unlawful agreement.’” . The determination of whether an act is reasonably foreseeable is an objective test. A reasonably foreseeable act is an act that a reasonable person who knew everything that the defendant knew at the time he or she entered the conspiracy, or agreed to expand the objectives of the conspiracy, would have been able to know in advance with a fair degree of probability. And while the application of the Pinkerton doctrine to a particular set of facts is ultimately a jury question, the burden of proving foreseeability under the circumstances of each individual case remains squarely on the government. Finally, federal courts have cautioned trial court’s against unwarranted expansions of Pinkerton that run afoul of the Constitution. (government’s attempt to convict defendant for being a felon in possession of a firearm based on coconspirator’s possession of firearm unwarranted, and possibly unconstitutional, expansion of the Pinkerton doctrine.” [D]ue process constrains the application of Pinkerton where the relationship between the defendant and the substantive offense is slight”).