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VOLUME 6 - CHAPTER 63
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63.1 Pinkerton Liability: Defense Theories
63.1.1 Conspiracy: Pinkerton Liability -- General Rule
63.1.2 Conspiracy: Pinkerton Liability -- Defense Theory That Consequences Were Not A Natural And Probable Consequence Of The Common Plan
63.1.3 Conspiracy: Pinkerton Liability -- Marginal Foreseeability As Defense Theory
63.1.4 Conspiracy: Pinkerton Liability -- Unnecessary Double Punishment As Defense Theory
63.1.5 Conspiracy: Pinkerton Liability -- "Reverse Pinkerton" Where Evidence Of Conspiracy Is Weak And Substantive Offense Is Strong
63.1.6 Limiting The Scope Of The Natural And Probable Consequences Doctrine
63.1.7 Pinkerton Theory
Insufficient To Support Ex-Felon In Possession Of Firearm Charge
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VOLUME 6 - CHAPTER 63
63.1.1 Conspiracy: Pinkerton Liability -- General Rule
PRACTICE NOTE: "In order for Pinkerton to apply, the government must prove beyond a reasonable doubt that (1) the substantive offense was in fact committed by one or more members of the conspiracy, (2) the defendant whose guilt it is considering was then a member of the conspiracy, and (3) the act that constituted the offense was done in furtherance of that conspiracy and was a foreseeable part of the conspiracy. [Citation.]" (McSorley, Portable Guide to Federal Conspiracy Law - Developing Strategies for Criminal and Civil Cases (ABA, 2003) Chapter 6, § G; see also Caplow & Griffin, Multidefendant Criminal Cases: Federal Law & Procedure (West, 1998) § 2:12; see also generally CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA 4.93, comment [Conspiracy: Basic Instruction 18 USC. 371: D.C. Code] 22-105a p. 520 (Bar Association of the District of Columbia, 4th ed. 1993).)
RESEARCH NOTES:
See generally,
FORECITE National™ 305.3.11 [Conspiracy].RELATED FEDERAL MODEL INSTRUCTIONS:
See 6th Circuit Pattern Jury Instructions - Criminal 3.10.
See also 7th Circuit Federal Jury Instructions - Criminal 5.09.
See also 7th Circuit Federal Jury Instructions - Criminal 5.10.
FORECITE National™
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VOLUME 6 - CHAPTER 63
63.1.2 Conspiracy: Pinkerton Liability -- Defense Theory That Consequences Were Not A Natural And Probable Consequence Of The Common Plan
PRACTICE NOTE: See FORECITE National™ Chapter 65 [Natural And Probable Consequences].
RESEARCH NOTES:
See generally, FORECITE National™ 305.3.11 [Conspiracy].
RELATED FEDERAL MODEL INSTRUCTIONS:
See 6th Circuit Pattern Jury Instructions - Criminal 3.10.
See also 7th Circuit Federal Jury Instructions - Criminal 5.09.
See also 7th Circuit Federal Jury Instructions - Criminal 5.10.
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VOLUME 6 - CHAPTER 63
63.1.3 Conspiracy: Pinkerton Liability -- Marginal Foreseeability As Defense Theory
PRACTICE NOTE: Where the government relies on Pinkerton there may be due process concerns where the relationship between a defendant and the foreseeability of the substantive crime are marginal. Due process may bar application of the Pinkerton rationale where the relationship is attenuated. (See U.S. v. Casteneda (9th Cir. 1993) 9 F3d 761, 766-68]; see also FORECITE National™ 63.1.2 [Conspiracy: Pinkerton Liability -- Defense Theory That Consequences Were Not A Natural And Probable Consequence Of The Common Plan]; McSorley, Portable Guide to Federal Conspiracy Law - Developing Strategies for Criminal and Civil Cases (ABA, 2003) Chapter 6, § G.)
RESEARCH NOTES:
See generally, FORECITE National™ 305.3.11 [Conspiracy].
RELATED FEDERAL MODEL INSTRUCTIONS:
See 6th Circuit Pattern Jury Instructions - Criminal 3.10.
See also 7th Circuit Federal Jury Instructions - Criminal 5.09.
See also 7th Circuit Federal Jury Instructions - Criminal 5.10.
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VOLUME 6 - CHAPTER 63
63.1.4 Conspiracy: Pinkerton Liability -- Unnecessary Double Punishment As Defense Theory
PRACTICE NOTE: People v. McGee (NY 1979) 399 NE2d 1177, 1182 rejected the doctrine of vicarious liability for acts of a coconspirator because the conspirator will be punished for the conspiracy and his own substantive crimes, thus making vicarious liability unnecessary and also repugnant to a civilized system of punishment. (See also Hubbard, JURY INSTRUCTIONS FOR CRIMINAL CASES IN SOUTH CAROLINA: DEFENDANTS REQUESTED INSTRUCTIONS V(C) [Vicarious Liability] pp. 240-41 (South Carolina CLE, 1994).)
RESEARCH NOTES:
See generally, FORECITE National™ 305.3.11 [Conspiracy].
RELATED FEDERAL MODEL INSTRUCTIONS:
See 6th Circuit Pattern Jury Instructions - Criminal 3.10.
See also 7th Circuit Federal Jury Instructions - Criminal 5.09.
See also 7th Circuit Federal Jury Instructions - Criminal 5.10.
FORECITE National™
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VOLUME 6 - CHAPTER 63
63.1.5 Conspiracy: Pinkerton Liability -- "Reverse Pinkerton" Where Evidence Of Conspiracy Is Weak And Substantive Offense Is Strong
PRACTICE NOTE: It has been suggested that a Pinkerton instruction should not be given where the evidence of the conspiracy is weak and the evidence of the substantive crime is strong because it may permit the jury to infer conspiracy based on the strength of the evidence as to the substantive crime. (See U.S. v. Sperling (2nd Cir. 1974) 506 F2d 1323, 1341; U.S. v. Stackpole (1st Cir.1987) 811 F2d 689, 696; U.S. v. Salameh (2nd Cir. 1998) 152 F3d 88, 149; State v. Diaz (CT 1996) 679 A2d 902, 911; see also McSorley, Portable Guide to Federal Conspiracy Law - Developing Strategies for Criminal and Civil Cases (ABA, 2003) Chapter 6, § G.)
RESEARCH NOTES:
See generally, FORECITE National™ 305.3.11 [Conspiracy].
RELATED FEDERAL MODEL INSTRUCTIONS:
See 6th Circuit Pattern Jury Instructions - Criminal 3.10.
See also 7th Circuit Federal Jury Instructions - Criminal 5.09.
See also 7th Circuit Federal Jury Instructions - Criminal 5.10.
FORECITE National™
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VOLUME 6 - CHAPTER 63
63.1.6 Limiting The Scope Of The Natural And Probable Consequences Doctrine
See
FORECITE National™ 65.2 [Limiting The Scope Of The Natural And Probable Consequences Rule].RESEARCH NOTES:
See generally, FORECITE National™ 305.3.11 [Conspiracy].
RELATED FEDERAL MODEL INSTRUCTIONS:
See 6th Circuit Pattern Jury Instructions - Criminal 3.10.
See also 7th Circuit Federal Jury Instructions - Criminal 5.09.
See also 7th Circuit Federal Jury Instructions - Criminal 5.10.
FORECITE National™
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VOLUME 6 - CHAPTER 63
63.1.7 Pinkerton Theory Insufficient To Support Ex-Felon In Possession Of Firearm Charge
PRACTICE NOTE: In U.S. v. Rawlings (7th Cir. 2003) 341 F.3d 657, the Seventh Circuit vacated a felon in possession conviction on the grounds of insufficient evidence. After the Government had failed to prove either actual or constructive possession of a gun by the defendant, it then attempted to prove the possession element of the crime under the theory of vicarious liability established in Pinkerton [Pinkerton v. United States (1946) 328 US 640, 643 [66 SCt 1180; 90 LEd 1489]. The Court rejected that argument as both unwarranted and as an improper expansion of the Pinkerton doctrine.