11.6 Conspiracy—Liability for Substantive Offense Committed by Co-Conspirator (Pinkerton Charge)

            Each member of the conspiracy is responsible for the actions of the other conspirators performed during the course and in furtherance of the conspiracy.  If one member of a conspiracy commits a crime in furtherance of a conspiracy, the other members have also, under the law, committed that crime.

            Therefore, you may find the defendant guilty of [specify crime] as charged in [Count ___] of the indictment if the government has proved each of the following elements beyond a reasonable doubt:

            First, a person named in [Count _______] of the indictment committed the crime of [specify crime] as alleged in that count;

            Second, the person was a member of the conspiracy charged in [Count _______] of the indictment;

            Third, the person committed the crime of [specify crime] in furtherance of the conspiracy;

            Fourth, the defendant was a member of the same conspiracy at the time the offense charged in [Count _______] was committed; and

            Fifth, the offense fell within the scope of the unlawful agreement and could reasonably have been foreseen to be a necessary or natural consequence of the unlawful agreement.

Comment

            The Pinkerton charge derives its name from Pinkerton v. United States, 328 U.S. 640 (1946), which held that a defendant could be held liable for a substantive offense committed by a co-conspirator as long as the offense occurred within the course of the conspiracy, was within the scope of the agreement, and could reasonably have been foreseen as a necessary or natural consequence of the unlawful agreement.  United States v. Alvarez-Valenzuela, 231 F.3d 1198, 1202 (9th Cir. 2000); United States v. Henry, 984 F.3d 1343, 1355-1356 (9th Cir. 2021).

            When this instruction is appropriate, it should be given in addition to Instruction 11.1 (Conspiracy—Elements).

            This instruction is based upon United States v. Alvarez-Valenzuela, 231 F.3d 1198 at 1202-03, in which the Ninth Circuit approved of the 1997 version of Instruction 8.5.5 (Conspiracy—Pinkerton Charge) (now Instruction 11.6), and United States v. Montgomery, 150 F.3d 983, 996-97 (9th Cir. 1998).  See also United States v. Gonzalez, 906 F.3d 784, 791-92 (9th Cir. 2018); United States v. Gadson, 763 F.3d 1189, 1216-17 (9th Cir. 2014).

            This instruction was found adequate in a case in which three separate conspiracies were charged.  See United States v. Moran, 493 F.3d 1002, 1009-10 (9th Cir. 2007).  However, given the potential for ambiguity where more than one conspiracy is charged, the court should consider giving separate Pinkerton instructionsfor each conspiracy charged.

Revised Mar. 2021