Petition for Writ of Certiorari — Gary Lamar Henry, Petitioner v. United States

Supreme Court briefAug 30, 2021

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IN THE SUPREME COURT OF THE UNITED STATES

__________________________________

GARY LAMAR HENRY,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

__________________________________

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

________________________________

PETITION FOR A WRIT OF CERTIORARI

BENJAMIN L. COLEMAN

Singleton Schreiber McKenzie & Scott LLP

1350 Columbia Street, Suite 600

San Diego, California 92101

Telephone (619) 794-0420

bcoleman@ssmsjustice.com

Counsel for Petitioner

QUESTIONS PRESENTED

1. Whether Pinkerton v. United States, 328 U.S. 640 (1946) liability, which

only requires that a conspirator reasonably foresee the substantive crimes of his coconspirators, applies in the context of an 18 U.S.C. § 924(c) violation predicated

on a crime of violence, which categorically requires more than the reckless use of

force under United States v. Davis, 139 S. Ct. 2319 (2019) and Borden v. United

States, 141 S. Ct. 1817 (2021).

2. Whether this Court should grant, vacate, and remand for reconsideration

in light of Borden.

STATEMENT OF RELATED CASES

•

United States v. Gary Lamar Henry, No. 16CR00862-RHW, U.S.

District Court for the Central District of California. Judgment

entered March 21, 2019.

•

United States v. Gary Lamar Henry, No. 19-50080, U.S. Court of

Appeals for the Ninth Circuit. Judgment entered January 6, 2021

and rehearing denied April 5, 2021.

TABLE OF CONTENTS

Table of authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

Opinion below. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Jurisdiction.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Statutory provisions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Statement of the case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

A. Pinkerton liability does not apply to 18 U.S.C. § 924(c)

convictions predicated on a crime of violence given this Court’s

clarification of the statute in Davis and Borden... . . . . . . . . . . . . . . . . . . . . . 6

B. Congress did not intend for Pinkerton liability to apply

to § 924(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

The question presented is important and timely. . . . . . . . . . . . . . . . . . 18

Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Appendix

Order denying rehearing, April 5, 2021. . . . . . . . . . . . . . . . . . . . . . . . App. 1

Published opinion below. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . App. 3

iii

TABLE OF AUTHORITIES

CASES

Alexander v. Sandoval,

532 U.S. 275 (2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Bolden v. State,

124 P.33d 191 (Nev. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Borden v. United States,

141 S. Ct. 1817 (2021). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7,8,9,10

Bouie v. City of Columbia,

378 U.S. 347 (1964). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Burrage v. United States,

571 U.S. 204 (2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11,17

Castillo v. United States,

530 U.S. 120 (2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Commonwealth v. Chambers,

188 A.3d 400 (Pa. 2018). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Dixon v. United States,

548 U.S. 1 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11,15,18

Elonis v. United States,

575 U.S. 723 (2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Evanchyk v. State,

47 P.3d 1114 (Ariz. 2002).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Gonzales v. Duenas-Alvarez,

549 U.S. 183 (2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Honeycutt v. United States,

137 S. Ct. 1626 (2017). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12,13

Jones v. United States,

529 U.S. 848 (2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Jones v. United States,

526 U.S. 227 (1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Kolender v. Lawson,

461 U.S. 352 (1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Liparota v. United States,

471 U.S. 419 (1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

McDonnell v. United States,

136 S. Ct. 2355 (1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

People v. McGee,

399 N.E. 2d 1177 (N.Y. 1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11,14

Pinkerton v. United States,

328 U.S. 640 (1946). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Rosemond v. United States,

572 U.S. 65 (2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9,11,14

Salinas v. United States,

522 U.S. 52 (1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Sessions v. Dimaya,

138 S. Ct. 1204 (2018). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Staples v. United States,

511 U.S. 600 (1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

State v. Nevarez,

130 P.3d 1154 (Idaho Ct. App. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

State v. Stein,

27 P.3d 184 (Wash. 2001).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Sullivan v. Louisiana,

508 U.S. 275 (1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

United States v. Castaneda,

9 F.3d 761 (9th Cir. 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

United States v. Davis,

139 S. Ct. 2319 (2019). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,7,8,16

United States v. Gaudin,

515 U.S. 506 (1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

United States v. Hamm,

952 F.3d 728 (6th Cir. 2020). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

United States v. Henry,

984 F.3d 1343 (9th Cir. 2021). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,5,8,9

United States v. Hudson,

11 U.S. 32 (1812). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

United States v. Shabani,

513 U.S. 10 (1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

United States v. Walls,

225 F.3d 858 (7th Cir. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

United States v. Walton,

2021 WL 3615426 (9th Cir. Aug. 16, 2021). . . . . . . . . . . . . . . 10,15,16,17,19

Whitfield v. United States,

543 U.S. 209 (2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

STATUTES

18 U.S.C. § 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

18 U.S.C. § 3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

18 U.S.C. § 371. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2,6,19

18 U.S.C. § 922. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

18 U.S.C. § 924. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

18 U.S.C. § 2113. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

21 U.S.C. § 841. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

28 U.S.C. § 1254. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

MISCELLANEOUS

Sanford H. Kadish & Stephen J. Schulhofer, Criminal Law

and Its Processes (7th ed. 2001).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Wayne R. LaFave, Substantive Criminal Law (2003).. . . . . . . . . . . . . . . . . . . . . . 11

Model Penal Code. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

vii

OPINION BELOW

The opinion below is reported at United States v. Henry, 984 F.3d 1343 (9th

Cir. 2021).

JURISDICTION

The Ninth Circuit filed its opinion on January 6, 2021 and denied

petitioner’s request for rehearing and rehearing en banc on April 5, 2021. App. 1,

3.1 This Court has jurisdiction pursuant to 28 U.S.C. § 1254(1). See Orders,

March 19, 2020 and July 19, 2021 (extending deadline for this petition to 150

days).

STATUTORY PROVISIONS

18 U.S.C. § 924 provides:

(c)(1)(A) Except to the extent that a greater minimum sentence is otherwise

provided by this subsection or any other provision of law, any person who,

during and in relation to any crime of violence or drug trafficking crime

(including a crime of violence or drug trafficking crime that provides for an

enhanced punishment if committed by the use of a deadly or dangerous

weapon or device) for which the person may be prosecuted in a court of the

United States, uses or carries a firearm, or who, in furtherance of any such

crime, possesses a firearm, shall, in addition to the punishment provided for

such crime of violence or drug trafficking crime –

(i) be sentenced to a term of imprisonment of not less than 5 years;

(ii) if the firearm is brandished, be sentenced to a term of imprisonment of

not less than 7 years; and

“App.” is the Appendix, “ER” is the Excerpts of Record in the Ninth

Circuit, and “CR” is the Clerk’s Record in the district court.

(iii) if the firearm is discharged, be sentenced to a term of imprisonment of

not less than 10 years.

***

(3) For purposes of this subsection the term “crime of violence” means an

offense that is a felony and –

(A) has as an element the use, attempted use, or threatened use of physical

force against the person or property of another, or

(B) that by its nature, involves a substantial risk that physical force against

the person or property of another may be used in the course of committing

such offense.

STATEMENT OF THE CASE

In April 2017, a federal grand jury in the Central District of California

returned a first superseding indictment charging petitioner and multiple

codefendants in a bank robbery scheme. ER 163; CR 24. Count 1 charged a

conspiracy count under 18 U.S.C. § 371. ER 163-74. Counts 3, 5-7, and 9 charged

petitioner with armed bank robbery under 18 U.S.C. § 2113(a), (d). ER 176-82.

Counts 4, 8, and 10 charged him with brandishing a firearm during the armed bank

robberies in violation of 18 U.S.C. § 924(c). ER 177-83. Counts 11-12 charged

generic bank robbery under § 2113(a). ER 184-85.

In essence, the superseding indictment alleged that petitioner along with the

codefendants and others committed eight bank robberies in the Los Angeles and

Bakersfield, California areas from July to October 2016. ER 165-85. The

indictment generally alleged that petitioner would coordinate with the other

defendants before and after each bank robbery, but he would not enter the bank and

participate in the actual robbery. Id. For several of the robberies, the indictment

alleged that two codefendants entered the banks brandishing a firearm. Id. For

others, a codefendant entered the bank alone and handed over a demand note. Id.

The defendants obtained a total of approximately $45,000 from the robberies. Id.

At trial, the government presented bank employees and video and

photographic evidence from the banks showing codefendants committing the

robberies. ER 220-21. As to petitioner’s involvement, a cornerstone of the

government’s case was cell phone data, which showed that he was in the area and

had made calls to the coconspirators around the time of several of the robberies.

ER 195-96, 261-62. The government also called several cooperating witnesses.

One cooperation witness stated that he drove another codefendant to petitioner

after one of the robberies. ER 282, 312-14, 318, 345-46. A jailhouse informant

testified that he was detained with petitioner while the latter was awaiting trial and

that petitioner confessed his involvement in the robberies to him. ER 352-53, 36271. A third cooperating witness testified that he was part of the robbery crew and

that petitioner had an argument with a co-conspirator when he found out that he

was going into the banks with a gun, but the codefendant insisted that he would not

participate unless he could go into the banks armed. ER 205-08.

The district court instructed the jury that petitioner did not go into the banks

to commit the robberies, and therefore he could only be held liable on the

substantive counts under an aiding and abetting or Pinkerton theory of liability.

ER 46-55. Thus, as to the Pinkerton theory, the jury was instructed that it could

convict petitioner on these substantive counts if they “could reasonably have been

foreseen to be a necessary or natural consequence of the” generic bank robbery

conspiracy. ER 53.

The jurors sent two notes during deliberations indicating that they relied on

Pinkerton liability to convict on the armed bank robbery and § 924(c) counts. ER

14-19, 27-30. The first asked whether they had to find both aiding and abetting

liability and Pinkerton liability to convict on the substantive counts. ER 30. After

they were informed that they did not, they sent a second note asking: “If the

defendant is guilty of conspiracy does that mean that he is also guilty of armed

robbery and brandishing a weapon? And or by default does that make him guilty

of the charges pertaining to the firearm?” ER 28-29. The district court noted that

the “two questions all have to do with conspiracy” and commented that the jurors

“are focusing on conspiracy.” ER 19. The district court then responded to the

second note by telling the jurors that “conspiracy is a means by which defendant

may be found guilty of the offenses charged in the other Counts.” ER 27. Shortly

thereafter, the jury returned its guilty verdicts, and the verdict form for the § 924(c)

counts only specified Pinkerton liability. ER 4, 8, 10, 20.

The district court imposed a total sentence of 387 months, which was

comprised of 135 months for the conspiracy and bank robberies and 252 months

(21 years) consecutive for the three § 924(c) counts, each of which carried a

mandatory minimum consecutive sentence of 7 years. ER 186. Petitioner raised

multiple claims on appeal, and the Ninth Circuit affirmed.

As relevant to this petition, he contended that the district court erred by

giving a Pinkerton instruction as to the § 924(c) counts. He argued that

Pinkerton’s reasonable foreseeability standard is incompatible with the definition

of a crime of violence in the “elements clause,” which is the only remaining

definition of a crime of violence after United States v. Davis, 139 S. Ct. 2319

(2019). He also contended that Congress did not intend for Pinkerton liability to

apply to § 924(c).

The Ninth Circuit rejected his claims, although somewhat non-responsively.

The Ninth Circuit reasoned that “[d]efendants found guilty of armed bank robbery

under either a Pinkerton or aiding-and-abetting theory are treated as if they

committed the offense as principals.” Henry, 984 F.3d at 1356. It also stated that

it had affirmed § 924(c) convictions based on Pinkerton liability in unpublished

opinions after Davis. Id.

ARGUMENT

This year is the 75th anniversary of Pinkerton, a remarkable opinion in that it

not only judicially created a “theory” of criminal liability, but it articulated a

reasonable foreseeability standard, an atypical standard in the criminal context. In

the decades since the 1946 opinion, Pinkerton liability has been widely criticized,

and it has been rejected by the Model Penal Code and the majority of jurisdictions

throughout the country. Petitioner respectfully suggests that it is time for this

Court to give further guidance on the reach of Pinkerton, particularly in the context

of a post-Model Penal Code statute like 18 U.S.C. § 924(c) that imposes

consecutive mandatory minimum sentences. Indeed, Pinkerton liability is

incompatible with this Court’s recent cases construing § 924(c), and this Court’s

recent precedent suggests that Pinkerton liability does not automatically apply

whenever a conspiracy is involved, as many lower federal courts have assumed.

As set forth below, this Court should grant this petition to clarify this important

area of federal criminal law.

A. Pinkerton liability does not apply to 18 U.S.C. § 924(c) convictions

predicated on a crime of violence given this Court’s clarification of the

statute in Davis and Borden.

In Pinkerton, 328 U.S. at 641-42, the defendants were charged with one

conspiratorial count under the precursor to 18 U.S.C. § 371, the general conspiracy

statute,2 and several substantive tax fraud counts. This Court held that, although

there was no evidence that one of the defendants participated directly in the

substantive offenses, he could still be held liable for them because he had entered

into the conspiracy. This Court, however, cautioned that a “different case would

arise if the substantive offense committed by one of the conspirators was not in fact

done in furtherance of the conspiracy, 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.” Id. at 647-48. In accordance with a so-called Pinkerton theory, the

jury at petitioner’s trial was instructed that it could convict on the § 924(c) counts

if they “could reasonably have been foreseen to be a necessary or natural

consequence of the” generic bank robbery conspiracy. ER 53.

Particularly given this Court’s recent opinions in United States v. Davis, 139

S. Ct. 2319 (2019) and Borden v. United States, 141 S. Ct. 1817 (2021), Pinkerton

liability is incompatible with § 924(c). In Davis, this Court held that the “residual

clause” definition of a crime of violence, see 18 U.S.C. § 924(c)(3)(B), is

See Pinkerton, 328 U.S. at 649 n.3 (Rutledge, J., dissenting) (quoting

former section 88 of Title 18: “If two or more persons conspire either to commit any

offense against the United States, or to defraud the United States in any manner or for

any purpose, and one or more of such parties do any act to effect the object of the

conspiracy, each of the parties to such conspiracy shall be fined not more than

$10,000 or imprisoned not more than two years, or both.”).

unconstitutionally vague. Thus, the only remaining definition of a crime of

violence is set forth in the “elements clause,” which requires that the felony offense

“has as an element the use, attempted use, or threatened us of physical force

against the person or property of another . . . .” 18 U.S.C. § 924(c)(3)(A).

Furthermore, under Borden, the “elements clause” definition requires that an

underlying offense have a mental state that exceeds recklessness, and therefore a

reasonable foreseeability standard clearly does not suffice. See Borden, 141 S. Ct.

at 1825-334. Thus, it is simply inconsistent to permit § 924(c) liability based on

reasonable foreseeability pursuant to Pinkerton, when the only remaining

definition of a crime of violence requires conduct with a greater mental state than

recklessness.

Indeed, if Pinkerton liability applies in the § 924(c) context, then many (if

not all) federal offenses will fail to qualify as a crime of violence under the nowlimited definition set forth in the surviving “elements clause.” In other words, all

crime of violence predicates that incorporate Pinkerton liability lack the mens rea

needed under Borden to qualify pursuant to the requisite categorical approach, see

Borden, 141 S. Ct. at 1822, which takes into account accessorial liability. See

Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007).

In rejecting petitioner’s argument, the Ninth Circuit explained that

“[d]efendants found guilty of armed bank robbery under either a Pinkerton or

aiding-and-abetting theory are treated as if they committed the offense as

principals.” Henry, 984 F.3d at 1356. That is precisely right – a defendant can be

convicted as a principal for a federal crime of violence under a Pinkerton theory

without proof that the defendant intended the use of force. And this means that,

pursuant to the requisite categorical approach, the alleged underlying crime of

violence fails to meet the Borden definition. In essence, the Ninth Circuit

confirmed petitioner’s argument but then did not explain how permitting Pinkerton

liability in this context satisfies the categorical approach.

Petitioner suggests that there are two potential interpretations of the statutory

scheme. The first is to hold that Pinkerton liability does not apply in the context of

§ 924(c), and this Court has already suggested that Pinkerton fails to satisfy the

mens rea required for accessorial liability under the statute. See Rosemond v.

United States, 572 U.S. 65 (2014). Alternatively, this Court should hold that all

crime of violence predicates for which Pinkerton liability is available fail to satisfy

the categorical approach under Borden. Under either construction, petitioner’s

convictions must be vacated because the jury likely convicted him on the armed

bank robbery counts and the § 924(c) counts based on Pinkerton liability.3

The Ninth Circuit noted that there was sufficient evidence to convict

petitioner under an aiding and abetting theory. See Henry, 984 F.3d at 1357.

Petitioner, however, made a claim of instructional error, not sufficiency of the

evidence. Because the jury likely convicted under an invalid Pinkerton theory, the

Finally, the Ninth Circuit issued its opinion before this Court decided

Borden. At the very least, this Court should grant this petition, vacate, and remand

for reconsideration in light of Borden.

B. Congress did not intend for Pinkerton liability to apply to § 924(c)

As Judge Watford recently commented, Pinkerton “has long been the subject

of criticism” and its “rule is unsound for many reasons, among them that no statute

enacted by Congress authorizes this form of vicarious liability [and] the rule

permits conviction based on a mens rea of negligence when the substantive offense

frequently requires a more culpable mental state.” United States v. Walton, No. 1850262+, 2021 WL 3615426, at *4 (9th Cir. Aug. 16, 2021) (Watford, J.,

concurring) (citations omitted). Indeed, the Model Penal Code rejected Pinkerton

liability, see Model Penal Code § 2.06, Comment 6(a), at 307 (1985), as have most

States. See Sanford H. Kadish & Stephen J. Schulhofer, Criminal Law and Its

Processes 693 (7th ed. 2001) (“In accord with the Model Penal Code, most

jurisdictions currently hold, either by statute or by judicial decision, that

conspirators are liable for substantive crimes of their co-conspirators only when the

instructional error requires petitioner’s conviction to be vacated even if the evidence

was sufficient to convict. See McDonnell v. United States, 136 S. Ct. 2355, 2375

(2016); see also Sullivan v. Louisiana, 508 U.S. 275, 279 (1993) (“The inquiry . . . is

not whether, in a trial that occurred without the error, a guilty verdict would surely

have been rendered, but whether the guilty verdict actually rendered in this trial was

surely unattributable to the error.”) (emphasis in original).

strict conditions of accomplice liability are met.”).4

Given that § 924(c) was enacted in 1968, it is likely that Congress did not

intend for Pinkerton liability to apply in accordance with the Model Penal Code.

See Rosemond, 572 U.S. at 76 (relying on Model Penal Code when determining

accessorial liability under § 924(c)); Salinas v. United States, 522 U.S. 52, 64-65

(1997) (relying on Model Penal Code’s view of conspiracy law when interpreting a

statute enacted in 1970); Commonwealth v. Chambers, 188 A.3d 400, 415-16 (Pa.

2018) (Saylor, C.J., concurring) (explaining that modern Pennsylvania statutory

law rejects Pinkerton liability in accordance with the Model Penal Code); see also

Burrage v. United States, 571 U.S. 204, 215 (2014).

Likewise, a new federal criminal code proposed at about the same time in

1970 explicitly rejected Pinkerton liability, further demonstrating that Congress

did not intend for Pinkerton liability to be incorporated into these statutes. See 2

Wayne R. LaFave, Substantive Criminal Law § 13.3(a), at 359 (2003). Indeed, this

Court has relied on the proposed reform of the federal criminal code in 1970 when

determining what Congress intended in enacting modern federal criminal statutes.

See Dixon v. United States, 548 U.S. 1, 15 (2006).

See, e.g., Evanchyk v. State, 47 P.3d 1114, 1118 (Ariz. 2002); State v.

Stein, 27 P.3d 184, 188-89 (Wash. 2001); State v. Nevarez, 130 P.3d 1154, 1157-59

(Idaho Ct. App. 2005); People v. McGee, 399 N.E. 2d 1177, 1181-82 (N.Y. 1979); see

also Bolden v. State, 124 P.3d 191, 196-201 (Nev. 2005).

In Honeycutt v. United States, 137 S. Ct. 1626, 1634 (2017), this Court

rejected the proposition that Congress enacts criminal statutes based on a

presumption of Pinkerton liability. To the contrary, this Court has “long been

reluctant” to infer reasonable foreseeability and other civil negligence type

standards when construing criminal statutes, see Elonis v. United States, 575 U.S.

723, 738 (2015), and this Court does not assume that Congress intended a theory of

liability based on one of its earlier opinions if the theory is not rooted in the text of

the statute. See Alexander v. Sandoval, 532 U.S. 275 (2001).

In finding that the criminal forfeiture statute in Honeycutt did not

incorporate Pinkerton liability, this Court explained that the statutory language

made it applicable to “any person” that had been convicted of certain serious

offenses. Honeycutt, 137 S. Ct. at 1632. Likewise, § 924(c) applies to “any

person” who commits a crime of violence “for which the person may be prosecuted

in a court of the United States . . . .” 18 U.S.C. § 924(c) (emphasis added). The

statute is worded in a person-focused manner, demonstrating that it applies to

personal culpability. See United States v. Walls, 225 F.3d 858, 864-66 (7th Cir.

2000) (holding that Pinkerton liability does not apply to another statute, 18 U.S.C.

§ 922(g), in Chapter 44 governing firearms). Indeed, the consecutive mandatory

minimum sentencing scheme strongly indicates that Congress intended for more

personal culpability than mere accessorial liability based on reasonable

foreseeability. See United States v. Hamm, 952 F.3d 728, 747 (6th Cir. 2020)

(holding that Pinkerton liability did not apply to a death or injury enhancement

under 21 U.S.C. § 841(b), concluding that there is “no reason to think that

Congress ever meant for Pinkerton liability to govern the application of the deathor-injury enhancement in the first place, for either conspiracy or substantive

convictions”).

Honeycutt also explained that Pinkerton liability was inconsistent with other

provisions in the statute and the “structure” of the statutory scheme. See

Honeycutt, 137 S. Ct. at 1633-34. The same is true for § 924(c). The statute

contains a specific conspiracy provision, which states: “A person who conspires to

commit an offense under section 924(c) shall be imprisoned for not more than 20

years, fined under this title, or both . . . .” 18 U.S.C. § 924(o). Thus, for a

conspiratorial violation, which requires the defendant to actually know about and

agree to firearm use, Congress intended no consecutive mandatory minimum

sentence. Congress likely did not intend for a conspirator to receive the harsher

mandatory consecutive sentences for the substantive § 924(c) offense if the use of

a firearm could merely be reasonably foreseen.5

It appears that Congress did not incorporate Pinkerton in § 924 because

it enacted a different type of conspiracy provision that does not require an overt act,

see Whitfield v. United States, 543 U.S. 209, 212-13 (2005), whereas Pinkerton

focused on the overt act requirement of the general conspiracy statute in reaching its

As mentioned, this Court’s opinion in Rosemond also suggests that

Pinkerton liability does not apply in the context of § 924(c). The question in

Rosemond concerned the mens rea necessary to sustain a § 924(c) conviction under

aiding and abetting liability. This Court held that a defendant must have “advance

knowledge that a confederate would use or carry a gun during the [underlying]

crime’s commission.” Rosemond, 572 U.S. at 67 (emphasis added). In doing so,

this Court explained the well-established rule that, for accessorial liability, the

requisite “intent must go to the specific and entire crime charged . . . .” Id. at 76.

It makes little sense to have a rule of accessorial liability prohibiting conviction

under an aiding and abetting theory without the requisite intent for the substantive

offense, but nonetheless allow convictions under a Pinkerton theory without the

requisite mens rea for the substantive offense. Judge Watford has recently

conclusion. See Pinkerton, 328 U.S. at 647 (“An overt act is an essential ingredient

of the crime of conspiracy . . . . If that can be supplied by the act of one conspirator,

we fail to see why the same or other acts in furtherance of the conspiracy are likewise

not attributable to the others for the purpose of holding them responsible for the

substantive offense.”). As an aside, New York’s highest court has explained the

illogical nature of the overt-act rationale in Pinkerton: “It is not offensive to permit

a conviction of conspiracy to stand on the overt act committed by another, for the act

merely provides corroboration of the existence of the agreement and indicates that the

agreement has reached a point where it poses a sufficient threat to society to impose

sanctions. But it is repugnant to our system of jurisprudence, where guilt is generally

personal to the defendant, to impose punishment, not for the socially harmful

agreement to which the defendant is a party, but for substantive offenses in which he

did not participate.” McGee, 399 N.E. 2d at 1182 (citations omitted).

recognized as much, relying on Rosemond and observing: “No principled basis

exists for permitting vicarious liability for § 924(c) offenses under a less rigorous

rule merely because a conspiracy is involved.” Walton, 2021 WL 3615426, at *4

(Watford, J., concurring).

Construing § 924(c) as not incorporating Pinkerton liability is also

consistent with the rule of lenity and the doctrine of constitutional doubt. See, e.g.,

Castillo v. United States, 530 U.S. 120, 131 (2000); Jones v. United States, 526

U.S. 227, 239 (1999). Indeed, there is a strong argument that Pinkerton liability

violates the Fifth Amendment and the constitutional structure of the federal

criminal justice system, issues not considered in Pinkerton. See, e.g., United States

v. Shabani, 513 U.S. 10, 16 (1994) (“questions which merely lurk in the record are

not resolved, and no resolution of them may be inferred”). This Court can and

should avoid those questions.

It has long been established that the federal courts have no common law

authority to create offenses. See United States v. Hudson, 11 U.S. 32, 34 (1812).

Instead, “the definition of the elements of a criminal offense is entrusted to the

legislature, particularly in the case of federal crimes, which are solely creatures of

statute.” Staples v. United States, 511 U.S. 600, 604 (1994) (quoting Liparota v.

United States, 471 U.S. 419, 424 (1985)); see Dixon, 548 U.S. at 12.

Davis confirmed that under “the Constitution’s separation of powers . . .

[o]nly the people’s elected representatives in the legislature are authorized to

‘make an act a crime.’” Davis, 139 S. Ct. at 2325. “[S]eparation of powers

[requires] that Congress, rather than the executive or judicial branch, define what

conduct is sanctionable and what is not.” Sessions v. Dimaya, 138 S. Ct. 1204,

1212 (2018). Congress cannot simply set a wide “net” and “leave it to the courts to

step inside” and create purported theories of liability. Id. at 1212 (quoting

Kolender v. Lawson, 461 U.S. 352, 358 n.7 (1983)).

“Hamilton warned, while ‘liberty can have nothing to fear from the judiciary

alone,’ it has “every thing to fear from’ the union of the judicial and legislative

powers.” Id. at 1228 (Gorsuch, J., concurring) (quoting The Federalist No. 78, at

466). “These structural worries are more than just formal ones. Under the

Constitution, the adoption of new laws restricting liberty is supposed to be a hard

business, the product of an open and public debate among a large and diverse

number of elected representatives. Allowing the legislature to hand off the job of

lawmaking risks substituting this design for one where legislation is made easy,

with a mere handful of unelected judges and prosecutors free to ‘condemn all that

they personally disapprove and for no better reason than they disapprove it.’” Id.

Unlike aiding and abetting and other forms of accessorial liability, see 18

U.S.C. §§ 2 and 3, “no statute enacted by Congress authorizes [Pinkerton]

vicarious liability [and] the rule permits conviction based on a mens rea of

negligence when the substantive offense frequently requires a more culpable

mental state.” Walton, 2021 WL 3615426, at *4 (Watford, J., concurring). Thus,

allowing the courts to create such a theory of accessorial liability not only violates

separation of powers, but it also infringes due process and basic notice

requirements. Cf. United States v. Gaudin, 515 U.S. 506, 509-19 (1995) (due

process prohibits judges from determining elements of a criminal offense); Bouie v.

City of Columbia, 378 U.S. 347 (1964). Particularly given the lack of a clear and

consistent common law rule permitting Pinkerton liability, the judicial creation of

such criminal liability in this context violates bedrock constitutional principles of

separation of powers and due process. See Burrage, 571 U.S. at 217-18.

Finally, several lower courts have recognized that Pinkerton liability can

violate due process. See, e.g., United States v. Castaneda, 9 F.3d 761, 766 (9th Cir.

1993) (“[s]everal circuits, including this one, recognize that due process constrains

the application of Pinkerton”). Principles of statutory construction suggest that,

rather than reading a constitutionally problematic theory of liability into a statute

that mentions nothing about that theory, the more prudent course is to avoid those

questions and to decline to participate in the judicial creation of criminal liability

by interpreting § 924(c) narrowly. See, e.g., Jones v. United States, 529 U.S. 848,

857-58 (2000).

In sum, although the lower courts all too often make a blanket assumption

that Pinkerton liability applies to all offenses in the federal criminal code, “federal

crimes ‘are solely creatures of statute,’” and such liability must be assessed “in the

context of the[] specific offense[]” at issue. Dixon, 548 U.S. at 12 (citation

omitted). When construed in light of legal developments in the many decades

since Pinkerton, the specific statute at issue here, § 924(c), does not permit such a

controversial theory of liability. This Court should therefore grant review to

consider this important question.

C. The question presented is important and timely

As mentioned, Pinkerton is now 75-years old. It has taken on a life of its

own in the lower federal courts, even though it has been widely criticized and

rejected by the majority of States. Despite longstanding criticism, this Court has

not revisited the reach of the opinion in the many decades since, nor has it done so

since opinions like Rosemond and Honeycutt, which call its continuing validity

into question, and at least in the specific context of § 924(c).

Pinkerton also stands on unusual, if not unsound, constitutional footing.

This Court has recently reinforced the separation of powers problems that arise

when the federal judiciary creates criminal liability, and Pinkerton itself never

grappled with the constitutional question. This is yet another reason why this

Court’s intervention is warranted.

The stakes are also quite important. For example, through the use of

Pinkerton’s watered-down reasonable foreseeability standard, petitioner was

subjected to a minimum 21-year consecutive sentence pursuant to § 924(c). On a

more global level, the general conspiracy statute carries a 5-year maximum

sentence. See 18 U.S.C. § 371. Through the use of the Pinkerton doctrine,

however, the government has the power to charge offenses that carry much greater

penalties, and, to make matters worse, it can seek such enhanced punishment under

a watered-down mens rea. When Pinkerton was decided, mandatory minimum

penalties (and bloated maximum penalties) were rare, if not unheard of. It is time

that this Court “reassess application of the Pinkerton rule to § 924(c) offenses in

the conspiracy context – and eventually reconsider Pinkerton itself.” Walton, 2021

WL 3615426, at *4 (Watford, J., concurring).

CONCLUSION

For the foregoing reasons, the Court should grant this petition, or it should

grant, vacate, and remand for reconsideration in light of Borden.

Dated: August 30, 2021

Respectfully submitted,