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A jury asked to decide a case under the Pinkerton doctrine must be made to focus on the co-conspirator's act, on whether it is a crime, on whether the co-conspirator's guilt of this crime was proved beyond a reasonable doubt, and on whether it was committed in furtherance of the conspiracy in which the defendant participated.
On April 22, 1998, Federal Express ("FedEx") identified as suspicious two packages that were purportedly shipped by the Renaissance Electrical Supply Company in Los Angeles, California, for delivery to Tascam Electrical Supply Company at 9121 S. Colfax in Chicago, to the attention of Daisy Walls. FedEx employees conducted a field test on the contents of the packages, which revealed the presence of cocaine. The employees then reported the results of their investigation to Phillip Barnett, who was commissioned by the Shelby County Sheriff's Office and assigned to the DEA Drug Task Force. Barnett subsequently traveled to the FedEx office and conducted his own test of the packages, which yielded the same results. The DEA agents were unable to verify any businesses using the names indicated on the packages, and decided to make a controlled delivery of the packages to the Chicago destination. A court-ordered break-wire device was inserted into each package to enable the agents to track the packages after the delivery was accomplished. If a package was opened, the wire would break and the signal being transmitted by the wire to the agents monitoring it would cease. Agent Markhart then donned a FedEx uniform and drove to 9121 S. Colfax in a truck with FedEx markings, with backup undercover agents in the area. Daisy Walls ("Walls") answered his knock, and he apologized for the late delivery because the packages had been scheduled for delivery the previous day. When he requested a signature for the packages, Walls turned to a male standing just inside the door, who was later identified as her son Daniel Walls, and asked him to sign. He scrutinized Markhart and declined to sign. Walls then said "I'll sign the electric company." Until that time, Walls could not have seen the address labels on the packages and Agent Markham had not mentioned that the addressee was an electrical company. Walls then examined the packages and signed Tascam Electric, DGW. After Agent Markhart's departure, Sharee Williams and Daniel Walls exited the rear of the house with the packages, and proceeded down the alley and into the rear basement door of 9127 S. Colfax. Shortly thereafter, the two emerged from the basement and Williams returned to 9121 S. Colfax while Daniel Walls went to the front of 9127 S. Colfax and began speaking on a cellular phone. At that moment, the signal being transmitted from one of the packages stopped. Concerned about maintaining control over the cocaine, the agents proceeded to 9127 S. Colfax and, when their knock received no response, they forcibly entered the dwelling. They found the unopened packages on a table immediately inside. The agents then went to 9121 S. Colfax and knocked on the screen door. A number of people inside shouted obscenities at them and told them they would not open the door without a search warrant. Daisy Walls then appeared at the door. The agents identified themselves and informed her that they were there on an investigation concerning the two packages that had been delivered. Without saying anything, she then opened the door and stepped back. Once they had entered, she motioned to them from the hallway to follow her into the kitchen. After hearing and acknowledging her Miranda rights, Walls stated that this was the third time she had accepted similar packages, that she did not know what it contained the first time but that she opened the second one out of curiosity and discovered it contained cocaine, and that she knew the third package contained cocaine as well. She told the agents that the packages belonged to Delano Target, a member of the Gangster Disciples street gang. After arresting Walls, the agents brought Williams into the kitchen. She declared that she had nothing to hide and gave written consent for the search of her basement apartment at 9127 S. Colfax. A search of the basement apartment revealed marijuana, money, materials used in packaging and weighing cocaine for sale, and a Raven Arms .25 caliber firearm. A jury convicted Walls and Williams for conspiracy to possess with intent to distribute and possession with intent to distribute, with Williams suffering a further conviction of knowingly possessing a firearm as a felon.
Is Williams guilty of possessing the firearm as a felon even if she lacked either actual or constructive possession of the gun by virtue of the Pinkerton doctrine?
The government's use of Pinkerton in this case took this one step farther in that it seeks Pinkerton liability based in part upon acts by a co-conspirator that did not constitute the crime. There were no allegations that a co-conspirator was guilty of violating § 922(g)(1) (possessing a firearm as a felon). Instead, the government used a cut-and-paste approach, taking the firearm possession by one conspirator, adding it to the felon status of another conspirator, and thereby creating a substantive offense for that second conspirator. It was a significant expansion of the Pinkerton doctrine that appeared to be difficult to limit. For instance, under such a use of Pinkerton, even lawful possession of a firearm by a conspirator could presumably be used to establish a § 922(g)(1) violation for a co-conspirator who is a felon. Moreover, one could easily imagine a large-scale conspiracy, in which a conspirator's possession of a firearm in California is used to obtain a felon-in-possession conviction of a co-conspirator in Illinois. This seemed far afield from the purpose of the felon-in-possession prohibition, which is to "keep firearms away from the persons Congress classified as potentially irresponsible and dangerous." It was an unwarranted, and possibly unconstitutional, expansion of the Pinkerton doctrine. Finally, the felon-in-possession statute seemed a particularly inappropriate vehicle for such an expanded use of Pinkerton liability. It criminalized conduct that could otherwise be lawful based upon the status of the person engaging in that conduct. As stated above, Congress enacted § 922(g)(1) "in order to keep firearms out of the hands of those persons whose prior conduct indicated a heightened proclivity for using firearms to threaten community peace and the 'continued operation of the Government of the United States.'”. Consistent with that end, it exempted certain non-violent offenders from its reach. That differentiation among felons based on the nature of their felonies survived equal protection scrutiny precisely because Congress could reasonably conclude that firearms would pose a higher risk of danger to the public if in the hands of the felons covered by § 922(g)(1), than they would in the hands of the relatively non-violent felons excluded from the statute. The government's proposed application of Pinkerton, however, would eviscerate that justification. The firearm in the hands of a non-felon (who lacks the criminal conviction that betrays a proclivity to threaten public safety) could be used to impose vicarious criminal liability on a felon (who lacks the firearm that threatens the public). The danger to the public rationale underlying the statute thus ceased to be relevant.