Vicarious Liability

  1. militarydefenselawyers416A co-conspirator may be convicted for substantive offenses committed by anotherco-conspirator, provided such offenses were committed while the agreement continued to exist and were in furtherance of the agreement. MCM, pt. IV, ¶ 5c(5); Pinkerton v. United States , 328 U.S. 640 (1946); United States v. Browning , 54 M.J. 1 (C.A.A.F. 2000); United States v. Gaeta , 14 M.J. 383 (C.M.A. 1983) (members were properly instructed on liability for co-conspirator’s drug distribution); United States v. Figueroa , 28 M.J. 570 (N.M.C.M.R. 1989) (guilty plea to drug distribution by co-conspirator was provident).
  2. United States v. Billings , 58 M.J. 861 (A.C.C.A. 2003) (accused’s silent consent asapproval authority for all gang activity supported conviction for robbery even though other gang members carried out the crime) aff’d, 61 M.J. 163 (2005).
  3. United States v. Finlayson , 58 M.J. 824 (A.C.C.A. 2003) (dicta) (accused could becriminally liable for the actions of other conspirators before he joined the conspiracy).
  4. Article 77 is broad enough to encompass vicarious liability of co-conspirators. UnitedStates v. Browning , 54 M.J. 1, 7 (C.A.A.F. 2000) (holding that prosecution could prove larceny and fraudulent claim charges on theory that accused was perpetrator, aider and abettor, or co-conspirator, even though conspiracy was not on the charge sheet).
  5. A co-conspirator’s statement may be admissible under MRE 801(d)(2)(E) even though conspiracy is not a charged offense. United States v. Knudson , 14 M.J. 13 (C.M.A. 1982).


Article 77