Pinkerton vs. aiding and abetting
A defendant in a case charging a conspiracy may be liable for
each of the substantive counts charged in an indictment under
three separate theories:|
1. Actual commission of the crime;
2. Participation in the crime as an aider or abettor;
3. Liability under a Pinkerton theory.
United States v. Ailsworth, 867 F.Supp. 980, 987 (D. Kan.
1994). The government may prove liability under any alternative
theory, and the jury will not return a verdict indicating the
precise manner in which the defendant committed the crime.
Id. Furthermore, a jury finding that one is guilty of
aiding and abetting a crime is not the equivalent of a finding of
a conspiratorial agreement. United States v. Palozzale,
71 F.3d 1233, 1237 (6th Cir. 1995). There is no requirement that
there be an agreement in order to convict one of aiding and
abetting. United States v. Frazier, 880 F.2d 878, 886
(6th Cir. 1989), cert. denied, 493 U.S. 1053, 110 S.Ct.
1142, 107 L.Ed.2d 1046 (1990). Conspiracy to commit a crime and
aiding and abetting in the commission are distinct offenses.
Id. See also United States v. Superior
Growers Supply, 982 F.2d 173, 178 (6th Cir. 1992).
The Pinkerton rule was pronounced in Pinkerton v.
United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489
(1946). Walter and Daniel Pinkerton were brothers who were
charged with violations of the Internal Revenue Code. The
indictment alleged the Pinkertons committed one conspiracy count
and the ten substantive counts. A jury found each of them guilty
of the conspiracy and several of the substantive counts. The
main issue arose from the facts that there was no evidence to
show Daniel Pinkerton participated directly in the commission of
the substantive offenses although there was evidence showing
these substantive offenses were in fact committed by Walter
Pinkerton in furtherance of the unlawful agreement or conspiracy
existing between the brothers. Id., 328 U.S. at 645, 66
S.Ct. at 1183.
The question was submitted to the jury on the theory that
each brother could be found guilty of the substantive offenses if
it was found at the time those offenses were committed the
brothers were parties to an unlawful conspiracy and the
substantive offenses were, in fact, committed in furtherance of
it. Id. Daniel Pinkerton was not indicted as an aider or
abettor, nor was his case submitted to the jury on that theory.
Id. at n.6.
Daniel argued United States v. Sall, 116 F.2d 745 (3d
Cir. 1940), in support of his contention that participation in
the conspiracy is not in itself enough to sustain a conviction
for the substantive offense even though it was committed in
furtherance of the conspiracy. Id., 328 U.S. at 646, 66
S.Ct. at 1183. Sall held that, in addition to evidence
that the offense was in fact committed in furtherance of the
conspiracy, evidence of direct participation in the commission of
the substantive offense or other evidence from which
participation might fairly be inferred was necessary.
The Supreme Court took a different view. It noted the facts
showed a continuous conspiracy with no evidence that Daniel
attempted to withdraw from it. Id. Therefore, he
continued to offend. Id. So long as the partnership in
crime continues, the partners act for each other in carrying it
forward, and an overt act of one partner may be the act of all
without any new agreement specifically directed to that act.
Id., 328 U.S. at 647, 66 S.Ct. at 1184. The criminal
intent to do an illegal act by one of the conspirators in
furtherance of the unlawful project is established by the
formation of the conspiracy. Id. Each conspirator
instigates the commission of the crime. Id. The unlawful
agreement contemplated what was done in the substantive acts, the
substantive crimes were performed in the execution of the
Similar to the rule of aiding and abetting, the overt acts of
one partner in a conspiracy is attributable to all partners.
Id. The court concluded that if an overt act, which is an
essential ingredient to a conspiracy, can be supplied by one
conspirator, then likewise the same or other acts in furtherance
of the conspiracy should be attributable to the others for the
purpose of holding them responsible for the substantive
The court did note that a different result 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
The rule of Pinkerton does service where the
conspiracy is one to commit offenses of the character described
in the substantive charges. Nye & Nissen, 336 U.S. at
620, 69 S.Ct. at 770. Aiding and abetting has a broader
application. Id. It makes a defendant a principal when
he consciously shares in any criminal act whether or not there is
a conspiracy. Id. And if a conspiracy is also charged,
it makes no difference so far as aiding and abetting is concerned
whether the substantive offense is done pursuant to the
conspiracy. Id. Pinkerton is narrow in its scope.
Aiding and abetting rests on a broader base. It states a rule of
criminal responsibility for acts which one assists another in
performing. Id. The fact that a particular case might
conceivably be submitted to the jury on either theory is
irrelevant. It is sufficient if the proof adduced and the basis
on which it was submitted were sufficient to support the
See also Chapter 24 of Federal Narcotics Prosecutions
(OLE 1999) for a further discussion of Pinkerton
[updated April 1999]