The convictions of three men who participated in conspiracies to rob a series of jewelry stores near Los Angeles were affirmed by the Ninth Circuit, although the arguments about the scope of liability for each defendant may lead to closer examination of a 1946 law and a Supreme Court decision of that same year.

From 2014 to 2016, Keith Walton, Jameson LaForest and Robert Wesley Johnson committed “smash and grab” armed robberies that netted approximately $6 million worth of luxury watches from jewelry stores in West Hollywood, Torrance and Santa Monica. They were convicted of violating the 1946 Hobbs Act, a federal law that prohibits extortion or robbery by wrongful use of force or fear…”

A three-judge panel of the Ninth Circuit Court of Appeals affirmed the convictions of the three robbers on August 16. But it is the concurrence of Judge Paul J. Watford that might lead the U.S. Supreme Court to take another look at the 75-year-old law and the subsequent application of vicarious liability.

The main issue in the plaintiffs’ appeal centers on the Hobbs Act. The Ninth Circuit panel concluded that the district court “properly instructed the jury that Hobbs Act robbery constitutes a crime of violence by placing a victim in fear of bodily injury.” The panel agreed that the district court properly rejected a claim that a Hobbs Act robbery can be committed if a victim fears only injury to an “economic interest.”

One of the defendants’ contentions involved a district court instruction about liability under “Pinkerton Liability,” a 1946 ruling in Pinkerton v. United States, which “holds members of a conspiracy vicariously liable for all reasonably foreseeable crimes committed by their co-conspirators in furtherance of this conspiracy.”

Pinkerton can be applied if four conditions are present: a defendant was a party to the conspiracy; the offense was “within the scope” of the “unlawful project,” (the robberies); the offense furthered the conspiracy; and the defendant could have reasonably foreseen the offense as a “necessary or natural consequence of the unlawful agreement.” The Ninth Circuit’s opinion rejected all arguments regarding an error in applying Pinkerton liability.

Next, the opinion stated that the district court was again correct when it told the jury that Hobbs Act robberies are “categorically crimes of violence.” They said the robberies did place victims in fear of bodily injuries, which are, by their nature, crimes of violence. The jewelry store robberies that began this case were not committed with “de minimus force,” or force that is “too minor to merit consideration.”

This part of the opinion prompted Watford’s concurrence. While discussing the application of Pinkerton, he raised concerns about applying the Pinkerton rule, which was created by Justice Willian O. Douglas in 1946. In that case, Douglas said that the acts of one man in violation of a law could be ascribed to someone else who did not commit the acts but was a participant in a conspiracy. Douglas said, “So long as the partnership in crime continues, the partners act for each other in carrying it forward.” This is now referred to as “vicarious liability.”

In this case, Walton was the so-called “ringleader.” He was convicted of conspiracy, committing three robberies and brandishing a firearm, and was sentenced to 55 years in prison. LaForest, his co-conspirator, was convicted of knowingly aiding and abetting the robberies and supplying a firearm. He did not use any weapons during the commission of any of the crimes. Johnson was convicted of recruiting robbers, helping find target stores, and supplying guns, sledgehammers and other tools used in the robberies. He did not actually use any of the weapons either. LaForest and Johnson each drew 22-year sentences.

Judge Watford’s concurrence said the Pinkerton rule “has long been the subject of criticism” and called it “unsound for many reasons.” He wrote that “no statute enacted by Congress authorizes this form of vicarious liability.” He also said Pinkerton permits conviction with only the intention or knowledge of wrongdoing, rather than taking any actual action.

He also cited and agreed with the Model Penal Code that properly concluded, “conspiracy does not present a special case for broadened liability.” He cited a Supreme Court decision that ruled that an aider or abetter (sic) had to have participated in the crime with advance knowledge that a gun would be used. That was not the case here for LaForest or Johnson. He concluded his concurrence by saying that perhaps the prevailing analysis of the mental state required for vicarious liability will “lead the Supreme Court to reassess application of the Pinkerton rule.”

In addition to the Hobbs Act and Pinkerton issues, the Ninth Circuit panel dismissed all other arguments for the new trial requested by all three defendants. First, they wrote that the district court properly denied the motion to suppress evidence about the location of cell phones that were used to plan the robberies. Next, they ruled that the district court properly declined the district court’s decision to further investigate baseless charges of potential juror bias. Then they denied the defendants’ motion for a new trial because the jury saw some “unadmitted exhibits.” The court went into detail about each questionable piece of evidence and concluded, “there is no reasonable possibility that the jury’s exposure to the unadmitted exhibits affected the verdict.”

Finally, the Ninth Circuit panel, which also included U.S. Circuit Judge Patrick J. Butamay and Nancy D. Freudenthal, sitting by designation, concluded that the district court had properly calculated all of the defendants’ sentences. They correctly used the retail value of the stolen watches and properly defined the sledgehammer used in the robberies as a “dangerous weapon capable of inflicting death or serious bodily injury,” and thus justifying a sentence enhancement.