Extending Pinkerton Liability: Reasonable Foreseeability of a Co-Conspirator’s Discharged Firearm in Drug-Trafficking Conspiracies

1. Introduction

United States v. Basilici, 23-1456 (1st Cir. May 23, 2025), clarifies how Pinkerton v. United States (328 U.S. 640 (1946)) applies when a co-conspirator discharges a firearm “in furtherance” of a drug-trafficking scheme. Anthony Basilici stood accused of a multi-count federal indictment that included heroin distribution, kidnapping, obstruction of justice, and a § 924(c) count for possessing a firearm in furtherance of a drug-trafficking crime with the firearm discharged. On appeal, Basilici challenged only Count Five (the § 924(c) firearm count), arguing (1) the evidence was insufficient under Pinkerton, (2) the district court’s Pinkerton jury instruction was misleading, and (3) the written supplemental instruction during deliberations was procedurally defective. The First Circuit affirmed, holding that (a) the jury had ample evidence to find the discharge reasonably foreseeable, (b) no jury-instruction error occurred, and (c) any procedural lapses in handling the jury note were harmless.

2. Summary of the Judgment

The Court of Appeals, in an opinion authored by Judge Gelpí, affirmed Basilici’s conviction on Count Five. Applying de novo review to the sufficiency challenge, the court concluded that, viewing the record “in the light most favorable to the verdict,” United States v. Carmona, 103 F.4th 83, 91 (1st Cir. 2024), a rational juror could find:

• Basilici was present at the early-May 8, 2019, shooting of Krymeii Fray;
• Firearms were in the vehicle driven by co-conspirators Edwin Otero and Justin Joseph;
• A gun was discharged by Joseph at Fray’s head;
• Basilici disposed of a gun immediately afterward and hid in the woods;
• Given his knowledge of the conspirators’ conduct, it was “reasonably foreseeable” that a firearm could be used and discharged “in furtherance of” the heroin conspiracy.

The court then addressed Basilici’s challenges to the Pinkerton instruction and supplemental note response under a plain-error standard. It concluded the district court’s deviation from a pattern instruction did not relieve the government of its burden of proof; the supplemental instruction accurately defined “reasonably foreseeable” and was drafted with defense input; and any procedural irregularity in marking the note was harmless.

3. Detailed Analysis

3.1 Precedents Cited

• Pinkerton v. United States, 328 U.S. 640 (1946): Established that co-conspirators are criminally liable for “reasonably foreseeable” substantive offenses committed in furtherance of the conspiracy.
• United States v. Salvador-Gutierrez, 128 F.4th 299 (1st Cir. 2025) (en banc): Reaffirmed that Pinkerton liability requires that the substantive offense be both “in furtherance of” and “reasonably foreseeable” as a natural consequence of the agreement.
• United States v. Rijos-Rivera, 53 F.4th 704 (1st Cir. 2022): Evaluated foreseeability based on the conspiracy’s nature and prior course of conduct.
• United States v. Carmona, 103 F.4th 83 (1st Cir. 2024): Directed that sufficiency challenges be reviewed de novo with all reasonable inferences drawn in favor of the verdict.
• United States v. Bianco, 922 F.2d 910 (1st Cir. 1991): Observed that firearms “are common tools of the drug trade,” underscoring foreseeability in narcotics conspiracies.
• United States v. Maraj, 947 F.2d 520 (1st Cir. 1991): Outlined procedures for handling jury notes during deliberations.

3.2 Legal Reasoning

(a) Sufficiency of the Evidence under Pinkerton
A reviewing court must uphold a conviction if a rational trier of fact could find all elements beyond a reasonable doubt. Here, § 924(c)(1)(A) requires proof that (1) a defendant “use[d] or carrie[d]” a firearm “in furtherance of” a drug-trafficking crime, and (2) the firearm was discharged. Because Basilici did not personally fire the weapon, the government relied on Pinkerton liability: if a co-conspirator’s discharge was both in furtherance of and reasonably foreseeable from the heroin conspiracy, Basilici is liable as if he did it himself. The First Circuit found abundant direct and circumstantial evidence—surveillance video, wiretaps, intercepted calls, and post-shooting behavior—tying Basilici to the scene and showing he knew firearms were part of the drug-trafficking activity. The court rejected the “impermissible stacking of inference upon inference” argument, holding that the jury’s common-sense inferences lay close to the evidence and did not rely on overly attenuated reasoning.

(b) Jury Instruction and Reasonable Foreseeability
Although the district court’s Pinkerton instruction omitted verbatim language from the First Circuit’s pattern charge, it clearly informed jurors that they must find the five Pinkerton elements “beyond a reasonable doubt.” The court retained discretion to phrase the instruction in its own words. On receiving the jury’s written question—“what does ‘reasonably have foreseen’ mean?”—the court worked closely with both parties to craft a supplemental written definition and then provided it to the jury. The defense participated in drafting and signaled no objection at trial. Under the plain-error standard, the First Circuit held that neither the initial instruction nor the written supplement relieved the government of its burden or misled the jury.

3.3 Impact on Future Cases

United States v. Basilici reinforces and refines the First Circuit’s Pinkerton jurisprudence in three significant ways:

1. Reaffirmation of Broad Foreseeability in Drug Crimes: Firearms are “common tools of the drug trade,” and courts will sustain a § 924(c) conviction under Pinkerton if a rational jury could conclude that co-conspirator firearm use—including a discharge—was a natural and predictable element of the conspiracy.
2. Permissible Instructional Variants: District courts enjoy wide latitude in paraphrasing pattern instructions, so long as the substance—especially the government’s burden of proof—remains intact. Variations that do not dilute the mandatory “beyond a reasonable doubt” standard will generally survive appellate scrutiny.
3. Handling of Deliberation Notes: The Maraj framework remains the touchstone for on-the-fly jury communications. Participation by both parties in drafting supplemental responses and reading them into the record safeguards defendant’s rights, and unmarked written notes may be deemed harmless when no prejudice results.

4. Complex Concepts Simplified

• Pinkerton Liability: A conspirator can be criminally responsible not only for his own acts but also for substantive offenses committed by co-conspirators in furtherance of the agreed-upon crime, provided those acts were “reasonably foreseeable.”
• Reasonably Foreseeable: This standard goes beyond strict knowledge. A person who knowingly joins a violent or high-risk enterprise—such as a heroin distribution network—may be held liable for acts (e.g., gun discharges) that any reasonable participant would anticipate as part of that venture.
• Constructive Possession: Even if a defendant does not physically hold the firearm, he may be deemed to have possessed it if he had dominion and control over the premises or accomplices carrying the weapon.
• Plain-Error Review: When a defendant fails to object at trial, an appellate court will correct only “clear or obvious” errors that “affect substantial rights” and “seriously impair the fairness, integrity, or public reputation of judicial proceedings.”

5. Conclusion

United States v. Basilici stands as a leading First Circuit case on Pinkerton liability in the context of firearms and drug trafficking. It confirms that jurors may hold a conspirator accountable for a co-conspirator’s discharged firearm when the record supports a reasonable inference that gun use was part of the agreed-upon illegal enterprise. The decision also underscores the breadth of trial courts’ discretion in jury instructions and reaffirms the Maraj protocol for responding to jury questions. Going forward, prosecutors and defense counsel alike will look to Basilici for guidance on how foreseeability, jury instructions, and procedural handling of jury notes intersect in complex conspiracy prosecutions.