New York Federal Criminal Practice Blog
October 3, 2008

EDNY Judge Grants Judgment of Acquittal Finding Insufficient Evidence to Support Pinkerton Liability

For many defendants, Pinkerton liability – the theory that one can be held criminally liable for the reasonably foreseeable acts of one’s co-conspirators – is a jaw-dropping doctrine.  As Judge Bianco points out in United States v. Graziano, 07-CR-0508 (JFB), 2008 WL 4190957 (E.D.N.Y. 2008) (previously discussed here), this theory frequently justifies murder, assault and firearms convictions, even when the defendant did not personally participate in or advocate the act of violence or the carrying of a weapon.  For Graziano, charged with arson of his neighbors’ business after years of feuding, Pinkerton was the basis of his conviction at trial for possession of a destructive device, a conviction that carried a mandatory thirty-year consecutive sentence.  It is therefore a huge win for Graziano that Judge Bianco granted his motion for a post-verdict judgment of acquittal on this count, finding insufficient evidence to support Pinkerton liability.  


Years of complaints to police and others by Graziano’s neighbors about noise, violence and underage drinking at his tavern finally culminated in Graziano hiring someone to start a “small fire” at his neighbors’ stationery store.  Graziano was not present when his co-conspirators broke a window at the target business and lopped an incendiary bomb inside, which promptly burst into flames.  There was no evidence at trial that Graziano and his co-conspirators had discussed the arson method to be used, or that prior interactions between them suggested a bomb would be used.  


The court held that a rational jury could not conclude that someone who had agreed to start a “small fire” at his neighbors’ store meant that plan to encompass the use of an incendiary bomb.  In short, the arson method chosen by Graziano’s co-conspirators was not reasonably foreseeable to him as to support Pinkerton liability.  The decision has some very quotable lines.  Rejecting “the government’s circumstantial inference tree,” the court held “[t]hese double and triple inferences from circumstantial evidence, involving the uncommunicated thought processes of co-conspirators, are entirely too speculative . . .  to support the jury’s verdict.”   “[T]he question is not one of mere possibility, but of reasonable foreseeability as a ‘necessary or natural consequence’ of the conspiracy.”  The “'reasonable foreseeability' requirement prevents Pinkerton from being unconstitutionally transformed into [a] broad principle of vicarious liability.”  

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