Pinkerton v. United States

The Facts/Procedural History

Two brothers living a short distance from one another were indicted for violating tax code.  Both were convicted of conspiracy and nine substantive counts.  “Some of the overt acts charged in the conspiracy count were the same acted charged in the substantive counts.”  Each substantive count (the actual crime) was connected to the conspiracy count.  On appeal the defendants argue that all substantive counts should be merged into one count.  In other words, they argue that each “substantive count become a separate conspiracy count but, since only a single conspiracy was charged and proved, only a single sentence for conspiracy could be imposed.”


“A single conspiracy, charged under the general conspiracy statute, however diverse its objects may be, violates but a single statute and no penalty greater than the maximum provided for one conspiracy may be imposed.”

The Issue

Whether “each petitioner could be found guilty of the substantive offenses, if it was found at the time those offenses were committed petitioners were parties to an unlawful conspiracy and the substantive offenses charged were in fact committed in furtherance of it.”

Whether a defendant can be held liable for substantive crimes committed by another in the furtherance of a conspiracy in which they are joined.

The Holding/Reasoning

It has been held throughout the country that the commission of the substantive offense and a conspiracy to commit are distinct offenses.  Congress can and does separate the two.  Therefore, conviction for conspiracy may exist where the substantive crime was carried to fruition.  “And so long as the partnership in crime continues, the partners act for each other in carrying it forward.”  The substantive act of one brother in furtherance of the crime is the furtherance of the conspiracy, insofar as the other brother does not take a step to abstain from the criminal activity or disavows the crime.  Therefore, this is a “continuous crime.”  Because one brother did nothing to remove himself from the substantive crime when he knew the other brother was acting in furtherance of the crime, the brother also acts in furtherance of the conspiracy.


The ruling violates congressional intent to separate three classes of crimes: completed substantive offenses; aiding, abetting or counseling another to commit them; conspiracy to commit them.    The ruling convicts one man for another’s crime or it punishes the same man twice for the same crime.


Juries are often given the Pinkerton instruction:  “A Pinkerton instruction informs the jury members that if they initially determine beyond a reasonable doubt that a conspiracy existed and the defendant was a member of the conspiracy then they may find the defendant responsible for offenses committed by other  co-conspirators in furtherance of the conspiracy.”

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