Metropolitan News-Enterprise


Tuesday, August 17, 2021


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Ninth Circuit Judge Suggests Reexamination of Vicarious Liability Rule in Criminal Cases


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday upheld the convictions of three men for participating in a series of “smash and grab” jewelry store robberies throughout Southern California which netted about $6 million worth of high-end watches, with the case prompting one member of the three-judge panel to suggest a reexamination by the U.S. Supreme Court of a 1946 decision allowing vicarious liability of one co-conspirator for reasonably foreseeable crimes of a cohort.

The panel—comprised of Circuit Court Judges Patrick J. Bumatay and Paul J. Watford, joined by District Court Judge Nancy D. Freudenthal of the District of Wyoming—rejected the contentions of ring leader Keith Walton and his lieutenants Jameson LaForest and Robert Johnson put forth in their bid for a reversal.

One of their assertions was that District Court Judge Cormac J. Carney of the Central District of California erred in instructing jurors that the “Pinkerton rule” applies to counts brought under 18 U.S.C. 924(c). That section requires mandatory minimum terms of imprisonment where a firearm is used in committing a federal crime involving violence or drug trafficking.

The vicarious liability rule was promulgated by the U.S. Supreme Court in Pinkerton v. United States. Justice William O. Douglas wrote for the court in declaring that the acts of one man in violation of the Internal Revenue Code could be ascribed to his brother, who did not commit the acts but was a participant in a conspiracy.

“[S]o long as the partnership in crime continues, the partners act for each other in carrying it forward,” he said.

Watford’s View

The holding in Pinkerton, Watford commented in a concurring opinion yesterday, “has long been the subject of criticism.” He continued:

“The rule is unsound for many reasons, among them that no statute enacted by Congress authorizes this form of vicarious liability…and that the rule permits conviction based on a mens rea of negligence when the substantive offense frequently requires a more culpable mental state…The drafters of the Model Penal Code were right in concluding that liability for substantive offenses committed by co-conspirators ‘should be controlled by the same limits that are otherwise the measure of liability for complicity.’…As they observed, and contrary to Pinkerton’s fundamental premise, ‘conspiracy does not present a special case for broadened liability.’ ”

Watford noted that the U.S. Supreme Court, in its 2014 decision in Rosemond v. United States, held that a defendant, to be convicted as an aider or abettor in the use of a firearm, bringing into play §924(c), must be shown to have had “advance knowledge that a confederate would use or carry a gun during the crime’s commission.”

The circuit judge remarked:

“No principled basis exists for permitting vicarious liability for § 924(c) offenses under a less rigorous rule merely because a conspiracy is involved. Perhaps Rosemond’s analysis of the mens rea required for vicarious liability in the aiding-and-abetting context will lead the Supreme Court to reassess application of the Pinkerton rule to § 924(c) offenses in the conspiracy context—and eventually to reconsider Pinkerton itself.”

Hobbs Act Robberies

The defendants were convicted of robberies in violation of the Hobbs Act, which requires that the offense affects interstate commerce “in any way or degree.” Yesterday’s three-judge memorandum opinion spurns the argument that, notwithstanding a 2020 Ninth Circuit decision to the contrary in United States v. Dominguez, a Hobbs Act robbery is not necessarily a crime of violence for purposes of §924(c).

The panel said:

“Although defendants contend that Hobbs Act robbery can be committed with de minimis force, they have failed to identify any realistic scenarios to support their contention….In particular, defendants have not pointed to a case in which a ‘court[] in fact did apply the statute’ in the manner they describe….They hypothesize that a purse snatching could be accomplished with de minimis force, but they have not identified a single example of such a prosecution under the Hobbs Act. Nor do their hypothetical prosecutions predicated on scratching a fancy car or tearing a valuable stamp evince a ‘realistic possibility’ that such conduct could result in a conviction for Hobbs Act robbery….We therefore leave undisturbed our holding that Hobbs Act robbery is categorically a crime of violence under § 924(c).”

Walton was sentenced to 55 years in prison. The U.S. Attorney’s Office for the Central District of California, in a sentencing memorandum, labeled him “likely the most dangerous, prolific, and incorrigible criminal who has ever appeared before the Court for sentencing.”

LaForest drew a sentence of 22 years and eight months in prison while Johnson was sent to prison for 22 years.

The decision, in United States v. Walton, 18-50262, comes the same day as a ruling from another three-judge panel that a Hobbs Act robbery is not a crime of violence, in a different context: United States Sentencing Guidelines § 4B1.2(a). Under that guideline, a defendant’s 2018 sentence for illegally possessing firearms was boosted based on his 2014 conviction of a Hobbs Act robbery.

“Six of our sister circuits have held that Hobbs Act robbery is not a crime of violence under § 4B1.2(a),” Ninth Circuit Judge Mary H. Murguia said in United States v. Prigan, 18-30238, a precedential decision.

“We agree with our sister circuits and hold that Hobbs Act robbery is not a crime of violence under § 4B1.2(a). We therefore vacate Prigan’s sentence and remand this case for resentencing.”

She explained:

“While Hobbs Act robbery covers force or threats of force against a person or property, § 4B1.2(a)’s force clause and the relevant enumerated offenses—robbery and extortion—cover force or threats of force only against persons.”


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