UNITED STATES OF AMERICA PLAINTIFF-APPELLEE.
v.
YVETTE BELL, DEFENDANT-APPELLANT
PER CURIAM: This case requires us to decide if Pinkerton co-conspirator liability continues to apply to section 924(e) cases after the Supreme Court’s decision in Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995).
We conclude that it does and therefore affirm the district court’s refusal to permit Bell to withdraw her guilty plea.
In Pinkerton v. United States, 328 U.S. 640, 647-48, 66 S.Ct. 1180, 1184-85, 90 L.Ed. 1489 (1946), the Supreme Court held that criminal defendants are liable for the reasonably foreseeable actions of their co-conspirators.
Pinkerton liability is well established in this Circuit, see, e.g.
United States v. Broadwell, 870 F. 2d 594, 603-04 (11th Cir.1989), and although we have apparently never directly confronted the issue, the general rule among the circuits has been that the Pinkerton doctrine is applicable in section 924(c) eases, see, e.g.
United States v. McManus, 23 F. 3d 878, 883 (4th Cir.1994), United States v. Castaneda, 9 F. 3d 761, 765 (9th Cir.1993), cert. denied, 511 U.S. 1041, 114 S.Ct. 1564, 128 L.Ed.2d 210 (1994); United States v. Davis, 1 F. 3d 1014, 1017 (10th Cir.1993).
The district court correctly held that the Supreme Court’s opinion in Bailey did not preclude the application of Pinkerton liability in Bell’s case.
In Bailey, the Court held that a conviction for “using” a firearm required proof of active employment of a weapon, and that proof of mere possession was insufficient.
See Bailey, 516 U.S. at 142, 116 S.Ct. at 506.
Bailey interpreted the meaning of the word “use.”
Every appellate court opinion we have found on this issue has squarely held that Pinkerton liability continues to apply to section 924(c) offenses subsequent to Bailey.
See e.g.
Woodruff v. United States, 131 F. 3d 1238, 1243 (7th Cir.1997); United States v. Fonseca-Caro, 114 F. 3d 906, 907 (9th Cir.1997), cert. denied, — U.S. -, 118 S.Ct. 895, 139 L.Ed.2d 880 (1998); United States v. Wilson, 105 F. 3d 219, 221 (5th Cir.), cert. denied, — U.S.-, 118 S.Ct. 133, 139 L.Ed.2d 82 (1997); United States v. Myers, 102 F. 3d 227, 237-38 (6th Cir. 1996), — U.S. -, 117 S.Ct. 1720, 137 L.Ed.2d 843 (1997); United States v. Rodger, 100 F. 3d 90, 91 (8th Cir.1996), cert. denied, — U.S. -, 118 S.Ct. 145, 139 L.Ed.2d 92 (1997); United States v. Pimentel, 83 F. 3d 55, 58 (2d Cir.1996).
We agree with the reasoning of our sister circuits and now expressly hold that the Supreme Court’s decision in Bailey did not eliminate Pinkerton liability.
The sole issue on this appeal is whether the district court should have allowed plaintiff to withdraw her pre-Bailey guilty plea because without Pinkerton, the government’s proffer was insufficient to constitute a crime.
Since the government’s proffer was sufficient factually to provide the basis for Pinkerton liability, the court properly denied the motion to withdraw.
AFFIRMED.
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United States v. Diaz, 248 F.3d 1065 (11th Cir. 2001)…arry” prong of § 924(c). This intent was recognized by this Court in Bazemore v. U.S., 138 F. 3d 947, 950 (11th Cir.1998). The decision in Bailey, however, did not negate the applicability of the Pinkerton doctrine to § 924(c) cases. U.S. v. Bell, 137 F. 3d 1274, 1275 (11th Cir.1998) (per curiam). Accordingly, criminal defendants remain liable for the reasonably foreseeable actions of their coconspirators — including the using or carrying of a firearm during the commission of a crime of violence. See U.S.…1 / 2
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United States v. Gunn, 369 F.3d 1229 (11th Cir. 2004)…n was in furtherance of the crime. United States v. Timmons, 283 F. 3d 1246, 1252-53 (11th Cir.2002). And under § 924(c), a defendant may be liable for a co-conspirator’s possession if possession was reasonably foreseeable. United States v. Bell, 137 F. 3d 1274, 1274-75 (11th Cir.1998). In this case, the loaded firearms were found in the Mitsubishi automobile in the warehouse where defendants were waiting for the address of the stash house. As occupant of the Mitsubishi and owner of the tags on the vehic…
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United States v. Edilio Diaz, 190 F.3d 1247 (11th Cir. 1999)…on several occasions. As the majority points out, every conspirator is liable for every co-conspirator’s reasonably foreseeable actions. Pinkerton v. United States, 328 U.S. 640, 646-47, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946); United States v. Bell, 137 F. 3d 1274, 1274-75 (11th Cir.1998). Accordingly, the jury could have held Diaz liable for the possession of cocaine by imputing the evidence against Easterling to him. See United States v. Berkowitz, 662 F. 2d 1127, 1140 (5th Cir.1981). In Stirone, the def…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Pinkerton v. United States, 328 U.S. 640 (U.S. 1946)
- Bailey v. United States, 516 U.S. 137 (U.S. 1995)
- United States v. Broadwell, 870 F.2d 594 (11th Cir. 1989)
- Limones v. United States, 511 U.S. 1041 (U.S. 1994)
- Woodward v. United States, 511 U.S. 1041 (U.S. 1994)