The opinion of the court was delivered by: ARTHUR D. SPATT
The defendant Charles A. Urrego ("Urrego") is charged in count three of the superseding indictment with the use and carrying of a firearm. Specifically, the indictment charges that "on or about March 11, 1992, within the Eastern District of New York, the defendants CHARLES A. URREGO . . . and ANGELO VOZZELLA did knowingly and wilfully use and carry a firearm during and in relation to a crime of violence, to wit: the crimes charged in Counts One and Two" (Superseding Indictment, at Count Three). The second superseding indictment essentially uses the same language, however it omits any reference to Angelo Vozzella (Second Superseding Indictment, at Count Three).
The statute governing this count is 18 U.S.C. § 924(c)(1) which states, in relevant part, that:
In addition to alleging a violation of this statute, the third count also asserts criminal liability based on aiding and abetting in the commission of the section 924(c) crime (See 18 U.S.C. § 2).
The evidence in the case demonstrates, and it is undisputed by the Government and the Defendant, that the crime charged in count three of the superseding indictment is the use and carrying of a firearm by Angelo Vozzella on March 11, 1992. Special Agent Thomas C. Nicpon of the Federal Bureau of Investigation testified that on March 11, 1992 the FBI was executing a search warrant at Arms Painting, a business owned by the defendant Urrego, when Angelo Vozzella arrived. According to Special Agent Nicpon, a search warrant was thereafter executed on the person of Vozzella and a black leather "fanny pack" was found and in the fanny pack "we found several items including a handgun, paper records that contained names, numbers, and dates on them, also an American Express Gold Card in the name of Angelo Vozzella. And we found approximately $ 1,670 in cash" (Transcript, at p. 734). It is the handgun found in the possession of Vozzella which is the subject of count three.
It is clear and conceded by the Government that the indictment charges Vozzella with the use and carrying of the firearm on March 11, 1992 and the criminal liability of the defendant Urrego must be based on another theory. Since the indictment charges the defendant with violating 18 U.S.C. § 2, the aiding and abetting statute, it appears from the face of the indictment that the defendant Urrego is charged with aiding and abetting Vozzella's use and carrying of the firearm on March 11, 1992. The aiding and abetting statute states "whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal" (18 U.S.C. § 2[a]). According to the Second Circuit:
"to secure a conviction on a theory of aiding and abetting in violation of subsection (a), the government must prove that the underlying crime was committed by a person other than the defendant and that the defendant acted, or failed to act in a way that the law required the defendant to act, with the specific purpose of bringing about the underlying crime" ( United States v. Concepcion, 983 F.2d 369, 383 [2d Cir. 1992], cert. denied, 114 S. Ct. 163 ).
Since it is undisputed that the defendant Urrego was arrested on March 9, 1992, two days prior to the search and arrest of Vozzella on March 11, 1992, the Court has already determined, as a matter of law, that a reasonable juror could not find that the defendant Urrego was guilty of the crime of aiding and abetting the commission of the section 924(c) crime by Vozzella. In addition to the defendant Urrego's incarceration two days prior to the use and carrying of the firearm by Vozzella, there was no evidence presented by the Government of any aiding or abetting. Accordingly, the Court dismissed that portion of the indictment.
The remaining contention of the Government is that the jury should be charged that the defendant Urrego may be found guilty of the crime charged in count three of the superseding indictment based on a Pinkerton liability theory. In the case of Pinkerton v. United States, 328 U.S. 640, 646-47, 90 L. Ed. 1489, 66 S. Ct. 1180 (1946), the Supreme Court stated that all members of a conspiracy are responsible
"when the substantive offense is committed by one of the conspirators in furtherance of the unlawful project . . . The criminal intent to do the act is established by the formation of the conspiracy. Each conspirator instigated the commission of the crime. the unlawful agreement contemplated precisely what was done. It was formed for the purpose. The act was done in execution of the enterprise. the rule which holds responsible one who counsels, procures, or commands another to commit a crime is founded on the same principle. That principle is recognized in the law of conspiracy when the overt act of one partner in crime is attributable to all" ( Pinkerton, supra, 328 U.S. at p. 647).
In the Pinkerton case the defendants were two brothers, Walter and Daniel Pinkerton, who were indicted for violations of the Internal Revenue Code. The indictment contained ten substantive counts and one conspiracy count. Walter was found guilty of nine substantive counts and the conspiracy. Daniel was found guilty of six substantive counts and the conspiracy. No evidence was presented to demonstrate that Daniel participated directly in the commission of the substantive counts charged in the indictment, "although there was evidence that these substantive offenses were in fact committed by Walter in furtherance of the unlawful agreement or conspiracy existing between the brothers" ( Pinkerton, supra, 328 U.S. at p. 645). The Supreme Court affirmed the conviction of the Daniel on the substantive charges even though there was no evidence that he participated directly in the commission of the substantive crimes. This was the birth of Pinkerton liability.
According to the Second Circuit, the doctrine of Pinkerton liability "permits a jury to find a defendant guilty on a substantive count without specific evidence that he committed the act charged if it is clear that the offense had been committed, that it had been committed in the furtherance of the unlawful conspiracy, and that the defendant was a member of that conspiracy. United States v. Miley, 513 F.2d 1191, 1208 (2d Cir.) (Friendly, J.), cert. denied, 423 U.S. 842 . . . ...