Lead Opinion
Section 2(b) of the Criminal Code makes a person liable as a principal for “willfully causing] an act to be done which if directly performed by him or another would be an offense against the United States.” 18 U.S.C. § 2(b) (1988). This appeal presents the apрarently novel issues of whether a defendant may be liable for a substantive offense (a) as an aider or abetter of a “causer,” and (b) as a co-conspirator of a “causer” under the Pinkerton theory, see Pinkerton v. United States,
Facts
Jordan was charged with two conspiracy and two substantive counts. Count 1 charged a conspiracy with others, including Savaneeya Batton, to import heroin from Thailand, in violation of 21 U.S.C. § 963 (1988); Count 2 charged a conspiracy to possess heroin with intent to distribute, in violation of 21 U.S.C. § 846 (1988); Count 3 charged importation of 2.4 kilograms of heroin, in violation of 21 U.S.C. §§ 812, 952(a), 960, and 18 U.S.C. § 2; and count 4 charged possession with intent to distribute in excess of 100 grams of heroin, in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(B) (1988), and 18 U.S.C. § 2.
The evidence disclosed a heroin importation conspiracy orchestrated by “Ike” Atkinson, an inmate at the Federal Correctional Institution at Otisville, New York. Atkinson, through his brother, learned of the availability of a “Mr. Wolfgang,” who was believed to be a diplomatic сourier, but who was really an undercover agent of the Drug Enforcement Administration. Atkinson and Jordan had a series of conversations with Batton, who agreed to travel to Thailand to purchase heroin. Ultimately Batton told Jordan that she would purсhase the heroin in Thailand if someone else would bring it to the United States. Jordan reported Batton’s proposal to Atkinson, who immediately contacted “Mr. Wolfgang” and arranged for him to pick up heroin from Batton in Thailand and bring it to New York. Atkinson then told Jordan that the “problem” had been “solved.”
Wade Atkinson’s possession of the heroin in New York was the basis for the count charging conspiracy to possess heroin and the count charging the substantive offensе of possession with intent to distribute, the theory of the latter offense being that Jordan was in constructive possession of the heroin. The transportation of the heroin from Thailand to New York was the basis for the count charging conspiracy to import heroin and the substantive offense of importation. The substantive importation count is the focus of this appeal.
Discussion
Because the person who physically carried the heroin from Thailand to New York was a Government agent, the prosecution did not contend that he was the principal, for purposes of the substantive importation offense. Instead, the prosecution argued, and Judge Sprizzo charged the jury, on the theory that Batton was liable as a “causer” of the importation under section 2(b) and that Jordan could be found liable either for aiding and abetting Batton or, under Pinkerton, as a member of a conspiracy of which one member, Batton, carried out a substantive offense in furtherance of thе conspiracy.
Section 2(b) provides that one who willfully “causes” an act to be done that would be an offense if done by him is “punishable as a principal.” 18 U.S.C. § 2(b). See United States v. Gleason,
The absence of any prior decision squarely rejecting a claim that a “causer” may not be the principal of one who aids and abets indicates only that the claim has been thought too insubstantial to advance, not that it has any force. A defendant's liabili
Similarly, we see no reason to question Jordan’s liability under the Pinkerton theory simply because the person punishable as a principal was a “causer” and not, in the Government’s view, the person who actually committed the offense. Though it is sometimes mischaracterized, Pinkerton is not a broad principle of vicarious liability that imposes criminal responsibility upon every co-conspirator for whatever substantive offenses аny of their confederates commit. On the contrary, in the very decision in which the principle was articulated, co-conspirator liability was carefully confined to substantive offenses that are (a) committed “in furtherance of the cоnspiracy,” and (b) “reasonably foreseeable]” by the co-conspirator sought to be held responsible “as a necessary or natural consequence of the unlawful agreement.” Pinkerton,
Jordan’s claim that his trial counsel rendered ineffective assistance largely fails with our rejection of the challenge to the aiding and abetting and Pinkerton bases of liability. Jordan particularly complains that his trial counsel did not make a second summation, after the District Court, in a bifurcated proceeding, took verdicts from the jury on the conspiracy charges before charging on the substantive offenses. This procedure was used to accommodate a co-defendant, who successfully contended that he was not responsible for the substantive importation offense bеcause he had withdrawn from the conspiracy prior to the importation. Jordan’s trial counsel elected not to make a second summation, informing Judge Sprizzo that he did not see how
We have considered Jordan’s remaining challenges to his conviction, both those advanced by his appellate counsel and those he advanced pro se when his prior appellate counsel filed an Anders brief, and conclude that none has merit.
The judgment of the District Court, including all provisions of the sentence, is affirmеd.
Notes
. The delay in argument of this appeal was occasioned by the unsuccessful effort of prior counsel to have the appeal summarily adjudicated on the basis of a brief filed pursuant to Anders v. California,
. In view of the way the prosecution submitted to the jury Jordan’s liability for the substantive importation offense, we need not consider whether Batton’s actions in purchasing the heroin and handing it to a courier about to board a flight to New York or "Ike” Atkinson’s actions in arranging for the heroin to be brought to New York could have been found to render either of them directly liable under 18 U.S.C. § 2(a) (1988) as one who "commits" the offense of importation. The prosecution apparently assumed that a person could not “commit” the importation offense unless that person physically brought the heroin into the United States.
. Pinkerton liability was rejected in Pereira v. United States, supra, only because a Pinkerton charge had not been given to the jury.
Lead Opinion
On Petition for Rehearing
PER CURIAM:
On the original hearing of this appeal, we affirmed the conviction, but rеmanded for resentencing so that a term of supervised release could be replaced by a term of special parole, a change acknowledged by the parties to be required in light of then applicable casе law, see, e.g., United States v. Byrd,
Accordingly, the petition for rehearing is granted, and the opinion filed February 14, 1991, is modifed by deleting the last two paragraphs and substituting therefor, “The judgment of the District Court, including all provisions of the sentence, is affirmed.”