Hobbs Act Robbery Conviction Based on Pinkerton Liability Still Crime of Violence

US v. Gillespie: Gillespie and others conceived a plan to rob drug dealers. During one robbery, a victim was “struck with the butt of a pistol,” but could not identify the assailant. Other trial testimony was clear that some of the robbers had firearms, but was split on whether Gillespie himself possessed one. Gillespie went to trial on charges of Hobbs Act robbery, conspiracy to commit Hobbs Act robbery, and using a firearm in connection with a crime of violence under 18 U.S.C. §924(c). The Government’s position was that either Gillespie actually possessed a firearm or, under Pinkerton liability, he was vicariously liable for the possession/use of a firearm by one of his coconspirators. The jury convicted Gillespie on all counts, with the jury rejecting the actual possession theory and convicting on the §924(c) charge on Pinkerton liability.

After trial, Gillespie moved for an acquittal on the §924(c) charge, arguing that the jury had been improperly instructed that conspiracy to commit Hobbs Act robbery was a crime of violence. The district court denied the motion. While it recognized that the jury instruction on conspiracy was incorrect, it held that Gillespie could not demonstrate the prejudice required by plain error review because the firearm conviction “rested explicitly on the Pinkerton theory.” Gillespie was then sentenced to 265 motions in prison, as compared to sentences of 235, 192, 110, and 70 months for the other members of the conspiracy (most of whom had pleaded guilty). 

On appeal, the Fourth Circuit affirmed Gillespie’s convictions and sentence. The court concluded that “Gillespie’s argument confuses Hobbs Act conspiracy as a standalone §924(c) . . . and vicarious liability for a co-conspirator’s act of carrying a gun during a crime of violence under Pinkerton – which remains a valid theory of §924(c) liability.” The former was the result of Supreme Court decisions regarding the definition of “crime of violence” and vagueness issues, which were not present for the later. Pinkerton liability, the court explained, is “merely another form of vicarious liability, akin to aiding and abetting” and “has never depended on the categorization of Hobbs Act conspiracy as a crime of violence.” The special verdict form, the court noted, “made clear that the conviction was based on Pinkerton liability, not Hobbs Act conspiracy as a stand-alone predicate offense” and the jury was not instructed that Hobbs Act conspiracy was relevant to the Pinkerton liability argument. In addition, the court rejected Gillespie’s challenge to his sentence, based on its disparity with those imposed on his codefendants, as “individuals who opt to go to trial are not similarly situated to those who plead guilty and cooperate with the government.”