United States v. Vazquez-Castro, No. 09-2109 (1st Cir. 2011)Annotate this Case
The defendant, a passenger in a car used to deliver drugs to an undercover officer, was sentenced to a total of 180 months for conspiracy to possess and deliver, possession with intent to deliver cocaine, and possessing a firearm in furtherance of drug trafficking. The court refused to dismiss an "aiding and abetting" charge with respect to the gun, found under the floor mat on the driver's side of the car, but gave both an "aiding and abetting" instruction, requiring "practical certainty" that the defendant would use a weapon during the commission of the crime, and a "Pinkerton" instruction, requiring that the jury find that the defendant was a member of a conspiracy and the use or carrying of a firearm was "reasonably foreseeable" in furtherance of the conspiracy. The First Circuit affirmed. The trial court correctly gave both instructions; the defendant was aware of the essential charges and there was no unfair surprise. The evidence was sufficient to support the conviction; jurors could find that it was reasonably foreseeable to the defendant that one of his co-conspirators would carry a gun.
The court issued a subsequent related opinion or order on June 13, 2011.