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Name: U.S. v. Alvarez-Valenzuela
Case #: 99-10374
Court: US Court of Appeals
District 9 Cir
Opinion Date: 11/08/2000
Subsequent History: None

The district court’s response to a jury question regarding the “Pinkerton” instruction (Pinkerton v. United States (1946) 328 U.S. 640) was adequate. Here, the jury sent the judge a note asking whether if one member of the conspiracy knowingly possessed the gun, are all members of the conspiracy guilty? The firearms charge here was based on the “Pinkerton” theory of liability, that a defendant can be held liable for the substantive offense committed by a coconspirator so 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. The judge responded that all five elements of the Pinkerton charge had to be proved beyond a reasonable doubt, and told the jury to go back and try some more. Appellant argued on appeal that the proper reply was “no,” but he failed to make that suggestion to the district judge. Moreover, he did not object to the Pinkerton instruction as given. The court’s response to the inquiry was therefore reviewable only for plain error, which appellant failed to show. In his dissent, Judge Kleinfeld cited United States v. Castenda (9th Cir. 1993) 9 F.3d 761, 767, for the proposition that liability under Pinkerton v. United States (1946) 328 U.S. 640 does not necessarily support a conviction in a drug conspiracy because “there is no presumption of foreseeability” of a gun. “Of course, like any ordinary reader, I imagine that drug smugglers carry and shoot guns all the time. After all, that is how the movies and television portray them. But this imagined script cannot be substituted for evidence. Neither we nor, I would guess, the scriptwriters, have any personal experience with drug smuggling. They are making it up and we have a stereotype based on what they have invented.” “So, let’s look at the evidence.”