                     United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 06-1930
                                     ___________

United States of America,                 *
                                          *
      Plaintiff - Appellee,               *
                                          * Appeal from the United States
      v.                                  * District Court for the
                                          * Western District of Missouri.
Omari Ali Zackery,                        *
                                          *
      Defendant - Appellant.              *
                                     ___________

                               Submitted: December 12, 2006
                                  Filed: July 12, 2007
                                   ___________

Before LOKEN, Chief Judge, MURPHY and SHEPHERD, Circuit Judges.
                             ___________

LOKEN, Chief Judge.

      Omari Ali Zackery pleaded guilty to attempted robbery of a Springfield,
Missouri, credit union in violation of 18 U.S.C. §§ 2113(a) and (d). He was then
convicted after a bench trial of the second count in the indictment, which charged that
Zackery violated 18 U.S.C. §§ 924(c) and 2 when he “and another individual did
knowingly . . . brandish and possess a firearm . . . in furtherance of the [bank robbery]
alleged in Count One.” Zackery appeals this conviction. The primary issue on appeal
is whether he may be convicted of this offense based on a Pinkerton theory of liability
when the indictment did not charge a conspiracy offense. We affirm.
                                          I.

       Early on the morning of May 28, 2004, Stephen Butler, vice president of the
TelComm Credit Union, approached the rear door of the bank to enter and activate its
computer system for the day. Two men wearing black clothes and ski masks
confronted Butler. One knocked Butler to the ground, held an object a few inches
from his head, and threatened to kill him unless he took the robbers to the bank’s
vault. At trial, Butler testified that, though dazed from the blow, he saw the object
through his peripheral vision and believed it was a silver pistol.

       Butler complied with the robbers’ demand that he unlock the door and turn off
the bank’s alarm. He also surreptitiously entered a distress code that alerted the
police. Butler and the robbers entered the bank and proceeded to the vault area.
Butler told the robbers he could not open the vault’s time-lock, so the three waited in
a nearby customer privacy room until another employee who could open the vault
arrived. At one point, the man with the pistol said, “I ought to cap you.” The other
man, later identified as Zackery, assured Butler he would not be hurt. The robber with
the gun fled when he saw a police officer outside the building. He has never been
identified. Zackery fled shortly thereafter. He was pursued and arrested. No firearm
was ever recovered.

       The trial evidence consisted of a brief stipulation of facts, an inconclusive
security video, and Butler’s testimony. The district court1 found beyond a reasonable
doubt that the object brandished by the other robber was a firearm. The court further
found that Zackery did not possess the firearm and did not commit any overt act “to
aid Robber No. 1 in the possession of the gun.” However, the court found that “it was
reasonably foreseeable to Mr. Zackery that a participant in the robbery would possess


      1
        The Honorable Ortrie D. Smith, United States District Judge for the Western
District of Missouri.

                                         -2-
a weapon . . . based upon the complex planning that went into the commission of the
robbery.” Therefore, Zackery was guilty of the substantive § 924(c) offense based
upon a Pinkerton theory of liability, namely, it was reasonably foreseeable to Zackery
that his accomplice would use a firearm in furtherance of their conspiracy to commit
a violent crime, attempted bank robbery. Acknowledging that we have never squarely
decided the issue, the district court construed our decision in United States v. Thirion,
813 F.2d 146 (8th Cir. 1987), as signaling that, “just as criminal liability based on
aiding and abetting does not need to be specified in the indictment, criminal liability
based on Pinkerton does not have to be specified in the indictment.” Zackery
challenges that ruling on appeal.

                                           II.

       In Pinkerton v. United States, 328 U.S. 640 (1946), the Supreme Court resolved
a conflict in the circuits over the proof required to convict a conspirator of a
substantive offense such as a violation of 18 U.S.C. § 924(c). The issue was whether,
in addition to proving that the offense was committed in furtherance of the conspiracy,
the government must also present “evidence of direct participation in the commission
of the substantive offense or other evidence from which participation might fairly be
inferred.” Id. at 646. The Court held that direct participation need not be proved so
long as the substantive offense was in furtherance of the conspiracy and a necessary
or natural consequence of the unlawful agreement. Thus, under Pinkerton, a
defendant may be convicted of violating § 924(c) with proof beyond a reasonable
doubt “that a conspiracy existed, that the defendant was a member of it, that a
conspirator used a firearm to [commit a violent crime such as bank robbery], and that
the defendant could reasonably have foreseen that a firearm would be used [to commit
that crime] as a necessary or natural consequence of the conspiracy.” United States
v. Lucas, 932 F.2d 1210, 1220 (8th Cir.) (quotations omitted), cert. denied, 502 U.S.
869 (1991).



                                          -3-
      In Pinkerton, the defendants were charged with a conspiracy offense as well as
numerous substantive offenses committed in furtherance of the conspiracy. Here, no
conspiracy was charged. Zackery argues a separate conspiracy offense must be
charged in the indictment before a conspirator may be convicted of the substantive
offense under the Pinkerton theory of liability. Two circuits have held that a
conspiracy need not be charged. United States v. Lopez, 271 F.3d 472, 480 (3rd Cir.
2001), cert. denied, 535 U.S. 908 (2002); United States v. Chairez, 33 F.3d 823, 827
(7th Cir. 1994); accord United States v. Jackson, 627 F.2d 1198, 1216-17 & n.36
(D.C. Cir. 1980). One has expressly disagreed. United States v. Nakai, 413 F.3d
1019, 1023 (9th Cir.), cert. denied, 126 S. Ct. 593 (2005). We have never had the
question squarely presented -- in all our decisions affirming substantive offense
convictions under a Pinkerton theory, the indictments charged a separate conspiracy
offense. See, e.g., United States v. Hayes, 391 F.3d 958, 963 (8th Cir. 2004). Zackery
urges us to follow the Ninth Circuit in Nakai and reverse his § 924(c) conviction
because he was not charged with a conspiracy offense.

       In our view, the narrow question before us is all but answered by the Supreme
Court’s opinions in Pinkerton. The Court first rejected defendants’ principal
contention -- that “the substantive offenses were merged in the conspiracy” so that
only one punishment could be imposed -- because conspiracy is a separate offense that
in most cases may be separately punished. 328 U.S. at 643. The Court then turned
to the issue more relevant to this case, one conspirator’s contention that he could not
be convicted of the substantive offenses absent proof that he “participated directly”
in their commission, as the Third Circuit had held in United States v. Sall, 116 F.2d
745 (1940). The Court rejected this contention, explaining:

      A scheme to use the mails to defraud, which is joined in by more than
      one person, is a conspiracy. Yet all members are responsible, though
      only one did the mailing. The governing principle is the same when the
      substantive offense is committed by one of the conspirators in
      furtherance of the unlawful project. . . . The rule which holds responsible

                                         -4-
      one who counsels, procures, or commands another to commit a crime
      [plainly a reference to aiding and abetting liability now codified in 18
      U.S.C. § 2] is founded on the same principle. That principle is
      recognized in the law of conspiracy when the overt act of one partner in
      crime is attributable to all. An overt act is an essential ingredient of the
      crime of conspiracy . . . . If that can be supplied by the act of one
      conspirator, we fail to see why the same or other acts in furtherance of
      the conspiracy are likewise not attributable to the others for the purpose
      of holding them responsible for the substantive offense.

328 U.S. at 647 (citations omitted).

       Although a conspiracy offense was separately charged in Pinkerton, the
dissenting justices understood the decision as based upon evidentiary principles of
joint criminal liability, not on whether a conspiracy offense was pleaded. See 328
U.S. at 650 n.4 (Rutledge, J., dissenting). It is not hard to decipher the basis for this
understanding. Among the cases cited by the majority in the above-quoted passage
was our decision in Baker v. United States, 115 F.2d 533, 540 (8th Cir. 1940), cert.
denied, 312 U.S. 692 (1941), where we stated in upholding a defendant’s fraud
conviction: “The evidence conclusively shows that Statler was a party to the scheme
and even though a conspiracy is not charged, yet when such a scheme is clearly
participated in by more than one individual, it constitutes in and of itself a conspiracy”
(emphasis added). See also Cochran v. United States, 41 F.2d 193, 199-200 (8th Cir.
1930) (cited in Pinkerton, 328 U.S. at 647); Davis v. United States, 12 F.2d 253, 257
(5th Cir.), cert. denied, 271 U.S. 688 (1926).

       We construed Pinkerton in this same fashion in United States v. Thirion. A
conspiracy offense was charged in Thirion, but the defendant could not be convicted
of that offense under the terms of a foreign country’s extradition. In concluding that
the defendant could nonetheless be convicted of substantive offenses based upon a
Pinkerton theory of conspirator liability, we explained:


                                           -5-
      [A] jury may be instructed on the theory of aiding and abetting even
      though not charged in the indictment. The reason for this rule is that [the
      aiding and abetting statute] does not create a separate offense, it simply
      makes those who aid and abet in a crime punishable as principals. This
      reasoning is equally applicable to coconspirator liability. While
      Congress has recognized the conspiracy itself to be a separate crime, [18
      U.S.C.] § 371, coconspirator liability does not have its genesis in this
      statute, but rather in the common law. [Citing and quoting from the
      above-quoted passage in Pinkerton.]

813 F.2d at 151 (other citations and quotation omitted). As Pinkerton liability is an
issue of whether the evidence was sufficient to convict the defendant of a substantive
offense, whether the indictment charged a separate conspiracy offense is simply
irrelevant. Indeed, its absence reduces the risk of double punishment. This
conclusion is consistent with the many cases holding that evidence may be admitted
under the coconspirator exception to the hearsay rule “even in the absence of a
conspiracy charge so long as there is independent evidence of concert of action.”
United States v. Richardson, 477 F.2d 1280, 1282-83 (8th Cir.), cert. denied, 414 U.S.
843 (1973), and cases cited.

        Zackery argues that his conviction under the Pinkerton theory of liability
impermissibly lessened the government’s burden of proof of an aiding and abetting
offense -- from whether he knowingly aided commission of the offense to whether the
offense was reasonably foreseeable and in furtherance of the conspiracy. See Nakai,
413 F.3d at 1023. We disagree. Zackery was charged with violating 18 U.S.C.
§ 924(c). Aiding and abetting, not itself an offense, was simply one way to prove him
guilty of that charge. As the Supreme Court made clear in Nye & Nissen v. United
States, 336 U.S. 613, 618-20 (1949), aiding and abetting and Pinkerton are alternative
theories by which the government may prove joint criminal liability for a substantive
offense. That the standards of proof are different is irrelevant. Thus, it is well settled
that, “[e]ven in the absence of evidence supporting an aiding and abetting conviction,
persons indicted as aiders and abettors may be convicted pursuant to a Pinkerton

                                           -6-
instruction.” United States v. Comeaux, 955 F.2d 586, 591 (8th Cir.) (citations and
quotation omitted), cert. denied, 506 U.S. 845 (1992).

      Zackery further argues that, because conspiracy is a separate crime, “[t]o be
convicted under conspirator liability, one must be charged as a conspirator.”
However, Zackery was not convicted of conspiring to violate 18 U.S.C. § 924(c). He
was convicted of the substantive offense charged in the indictment based upon the
Pinkerton theory of conspirator liability. See Thomas v. United States, 748 A.2d 931,
935-36 (D.C. 2000), cert. denied, 534 U.S. 917 (2001).

       Finally, Zackery argues that the indictment did not “minimally inform him that
he could be convicted under a conspiracy liability theory.” We disagree. Count Two
alleged that Zackery violated 18 U.S.C. § 924(c) when he and another person
brandished a handgun during and in furtherance of an attempted bank robbery. That
allegation “was enough to alert the defense to the prospect of a Pinkerton theory.”
United States v. Edmond, 924 F.2d 261, 269 (D.C. Cir.), cert. denied, 502 U.S. 838
(1991); see Thirion, 813 F.3d at 151-52; Fed. R. Crim. P. 7(c)(1). An indictment need
not plead the government’s theory of liability.

                                         III.

       Alternatively, Zackery argues that the evidence was insufficient to convict him
under the Pinkerton theory of liability because the government failed to prove that the
object brandished by the other robber was a firearm. When reviewing the sufficiency
of the evidence after a bench trial, we view the evidence in the light most favorable
to the verdict and uphold the verdict if a reasonable factfinder could find the offense
proved beyond a reasonable doubt. United States v. Crawford, 115 F.3d 1397, 1407
(8th Cir.), cert. denied, 522 U.S. 934 (1997).




                                         -7-
       In explaining this finding, the district court first noted that the robbery was
carefully planned -- Zackery and his accomplice wore ski masks and dark clothing,
were lying in wait at the bank early in the morning when Butler arrived, and told
Butler they knew where he lived. “It makes no sense to attempt to rob a bank after
having gone through that type of planning” without employing a weapon to compel
bank employees to comply. The court further noted that Butler, though not positive,
was “steadfast in his view and his belief that he was accosted with . . . a gun.” Finally,
the court noted that, during the encounter, the robber with the object threatened to
“cap” Butler, a threat consistent with using a firearm. This evidence was sufficient
to permit a rational factfinder -- the district court -- to find that the object brandished
by Zackery’s accomplice was in fact a firearm. See United States v. Dobbs, 449 F.3d
904, 910-11 (8th Cir. 2006), cert. denied, 127 S. Ct. 1312 (2007); United States v.
Kirvan, 997 F.2d 963, 966-67 (1st Cir. 1993). Accordingly, the evidence was
sufficient to convict Zackery of violating 18 U.S.C. § 924(c) under the Pinkerton
theory of conspirator liability.

      The judgment of the district court is affirmed.

SHEPHERD, Circuit Judge, dissenting.

       I dissent from the court’s holding that the theory of vicarious coconspirator
criminal liability announced in Pinkerton is applicable even where, as here, the
defendant is not found guilty of a separately charged conspiracy. Because I believe
that the Pinkerton theory of liability is inapplicable in this case, I would not reach the
issue of the sufficiency of the evidence to convict under Pinkerton.

       The Pinkerton doctrine “exists to punish conspirators for crimes committed by
a coconspirator that are not the object of the conspiracy itself but are foreseeable and
in furtherance of the conspiracy.” United States v. Christian, 942 F.2d 363, 367 (6th
Cir. 1991). Pursuant to Pinkerton, “a conspirator [can] be held guilty of the

                                           -8-
substantive offense even though he did no more than join the conspiracy, provided
that the substantive offense was committed in furtherance of the conspiracy and as a
part of it.” Nye & Nissen v. United States, 336 U.S. 613, 618 (1949). The theory
“broadens a defendant’s liability beyond the aiding and abetting charge implicit in any
indictment.” United States v. Nakai, 413 F.3d 1019, 1023 (9th Cir.), cert. denied, 126
S.Ct. 593 (2005); see also United States v. Clark, 980 F.2d 1143, 1146 (8th Cir. 1992)
(“Aiding and abetting is an alternative charge in every count, whether implicit or
explicit.”).

        Although I agree that we have never directly addressed the question, in a recent
case, we indicated that absent a conspiracy charge and conviction, Pinkerton liability
is inapplicable. See United States v. Hayes, 391 F.3d 958, 963 (8th Cir. 2004) (“In
light of the conspiracy charge against Hayes, the District Court was warranted in
giving [a Pinkerton coconspirator] instruction . . . .”); see also United States v.
Richmond, 700 F.2d 1183, 1191 (8th Cir. 1983) (“In accordance with well established
conspiracy law, the trial court instructed the jury that if they found a defendant guilty
of a conspiracy they could also find that defendant guilty of a substantive crime which
was committed by his coconspirators pursuant to the conspiracy at the time the
defendant was a member of the conspiracy.”). Furthermore, as acknowledged by the
majority, in our long line of cases affirming convictions obtained under the Pinkerton
theory, all of the indictments involved contained a separate conspiracy charge. See
United States v. Pierce, 479 F.3d 546, 549-50 (8th Cir. 2007) (Pinkerton instruction
given where defendants were charged with conspiracy against the United States, filing
false tax returns, mail fraud and wire fraud); United States v. Mathison, 157 F.3d 541,
551 (8th Cir. 1998) (Defendants convicted of conspiracy and substantive offenses;
evidence was sufficient to prove beyond a reasonable doubt the defendant’s
participation in conspiracy and, “[a]s a result of this involvement, he was also properly
convicted on related mail fraud and money-laundering charges.”); United States v.
Davis, 154 F.3d 772, 782 (8th Cir. 1998) (jury instruction approved as pursuant to
Pinkerton, requiring conviction of defendant on conspiracy count in order to consider

                                          -9-
substantive counts under coconspirator theory); United States v. Comeaux, 955 F.2d
586, 591 (8th Cir. 1992) (application of Pinkerton upheld where defendant was
charged with conspiracy to possess with intent to distribute heroin and cocaine, and
use of a firearm in connection with a drug trafficking offense); United States v. Lucas,
932 F.2d 1210, 1220 (8th Cir. 1991) (Jury instruction approved which instructed that
defendant could be held “vicariously liable only if [the jury] found that a conspiracy
existed, that the defendant was a member of it, that a conspirator used a firearm to
assault . . . , and that the defendant could ‘reasonably have foreseen’ that a firearm
would be used to assault someone ‘as a necessary or natural consequence of the
conspiracy.’”) (citation omitted); United States v. Johnson, 906 F.2d 1285, 1289 (8th
Cir. 1990) (Consistent with Pinkerton, “[t]he district court instructed the jury that if
it found a defendant guilty of the conspiracy, it could find the defendant guilty of the
substantive offense charged . . . .”); United States v. Golter, 880 F.2d 91, 92 (8th Cir.
1989) (defendant convicted of conspiracy to distribute cocaine and of possession of
a firearm during and in relation to a drug trafficking offense); United States v.
Lombardo, 859 F.2d 1328, 1329 (8th Cir. 1988) (holding that appellants cannot be
guilty of Travel Act violations absent conviction for conspiracy of which those
violations were part); United States v. DeLuna, 763 F.2d 897, 918 (8th Cir. 1985)
(overruled on other grounds) (approving a jury instruction because it correctly
reflected the substance of the Pinkerton case that: “a defendant found guilty of a
conspiracy may also be found guilty of substantive offenses committed by a co-
conspirator or co-conspirators, in furtherance of the conspiracy, at the time that
defendant was a member of the conspiracy, even though that defendant did not
participate in the substantive offenses or have any knowledge of them.”) (citing
Pinkerton, 328 U.S. at 645-48).

        One circuit has squarely held that a conspiracy must be charged in the
indictment in order for the Pinkerton theory of liability to apply, See United States v.
Nakai, 413 F.3d 1019, 1023 (9th Cir.), cert. denied, 126 S.Ct. 593 (2005) (holding that
it is error to use a Pinkerton instruction in a case in which the indictment does not

                                          -10-
charge conspiracy), while two circuits have implicitly adopted this position. See
United States v. Walker, 142 F.3d 103, 111-12 (2d Cir. 1998) (approving Pinkerton
instruction which instructs jury that it must find, beyond a reasonable doubt, that the
defendant is guilty of the charged conspiracy); United States v. Meester, 762 F.2d
867, 882 (11th Cir. 1985) (one convicted of conspiracy is chargeable as a member of
conspiracy for substantive acts committed by coconspirators).

        Although the majority identifies two circuits as holding that a conspiracy need
not be charged, a close examination of the Seventh Circuit case of United States v.
Chairez, 33 F.3d 823, 827 (7th Cir. 1994), reveals that it relies solely upon United
States v. Macey, 8 F.3d 462 (7th Cir. 1993), which involved a conviction for mail
fraud involving two coconspirators. Because mail fraud includes a scheme to defraud
as an element, it is not surprising that members of the scheme are criminally liable for
the foreseeable mail fraud committed by other members. See 18 U.S.C. § 1341;
United States v. Wormick, 709 F.2d 454, 461 (7th Cir. 1983) (“[C]onspiracy doctrines
apply to a multi-member mail fraud scheme even if the indictment does not charge
conspiracy.”); Pinkerton, 328 U.S. at 647 (“A scheme to use the mails to defraud,
which is joined in by more than one person, is a conspiracy.”). Further, in United
States v. Jackson, 627 F.2d 1198, 1216-17 & n.36 (D.C. Cir. 1980), the defendant was
in fact charged with and convicted of a separate conspiracy. Similarly, Baker v.
United States, 115 F.2d 533, 540 (8th Cir. 1940), and Cochran v. United States, 41
F.2d 193, 199-200 (8th Cir. 1930), cited by the majority, are also distinguishable
because those cases involve charges of mail fraud.

       In United States v. Thirion, 813 F.2d 146 (8th Cir. 1987), we held that the
district court properly gave the jury a vicarious coconspirator liability instruction
notwithstanding the fact that the court was prevented by the doctrine of specialty2

      2
        “Under the doctrine of specialty a defendant may be tried only for the offense
for which he was delivered up by the asylum country.” United States v. Thirion, 813
F.2d 146, 151 (8th Cir. 1987); see also Leighnor v. Turner, 884 F.2d 385, 389 (8th

                                         -11-
from submitting a separate conspiracy count, contained in the indictment, to the jury.
We further held that the defendant could be found guilty of the charged substantive
offenses under Pinkerton even though the defendant could not be convicted of the
charged conspiracy. Id. at 151-53. Although the conspiracy charge could not be
submitted to the jury, the district court instructed that, in order to find the defendant
guilty of a substantive count under the Pinkerton coconspirator theory, it had to find
the defendant to be a coconspirator “as charged” in the indictment. Id. at 152 n.6.
Significantly, we cited Thirion in support of our statement in Hayes that a Pinkerton
liability instruction was properly given by the district court “[i]n light of the
conspiracy charge.” See Hayes, 391 F.3d at 963.

      The nature of Pinkerton liability is further illustrated by our explanation in
Thirion that, like the theory of aiding and abetting, the jury may be instructed on the
Pinkerton theory of liability even though the theory is not charged in the indictment.
Thirion, 813 F.2d at 151. Although the Pinkerton theory need not be charged in the
indictment, Thirion supports the proposition that a separate conspiracy charge is a
prerequisite to the imposition of Pinkerton liability.

       Further, the Supreme Court has described Pinkerton as “narrow in its scope.”
Nye & Nissen, 336 U.S. at 620. The majority’s conclusion, that Pinkerton
coconspirator liability may arise under an indictment that charges only a substantive
offense without conviction of a separately charged conspiracy, in my view, broadens
the scope of the theory beyond that contemplated by the Supreme Court.

       I conclude that our long standing treatment of this issue remains persuasive,
particularly in view of the fact that both Pinkerton and Nye & Nissen involved



Cir. 1989) (“The rule of specialty is based on principles of international comity and
is designed to guarantee the surrendering nation that the extradited individual will not
be subject to indiscriminate prosecution by the receiving government.”).

                                          -12-
defendants who were charged with and convicted of conspiracy. See Pinkerton, 328
U.S. at 641; Nye & Nissen, 336 U.S. at 615-16.3

       While I agree that aiding and abetting liability is an alternative theory in every
indictment, coconspirator liability under Pinkerton is not. As instructed by the
Supreme Court, it is available under narrow circumstances. In my view, we should
reaffirm that in order for Pinkerton coconspirator liability to attach a defendant must
be charged with, and found guilty beyond a reasonable doubt of, conspiracy.

      The United States elected not to charge Zackery with conspiracy to commit
bank robbery. See Pinkerton, 328 U.S. at 642-43 (substantive offense and conspiracy


      3
         The requirement that a defendant be charged with and found guilty of
conspiracy in order for vicarious Pinkerton liability for a substantive offense to be
imposed is incorporated in the model jury instructions promulgated by several
sources. Committee on Pattern Jury Instructions District Judges Association Fifth
Circuit, Fifth Circuit Pattern Jury Instructions (Criminal Cases) § 2.22 (2001);
Committee on Pattern Criminal Jury Instructions District Judges Association Sixth
Circuit, Sixth Circuit Pattern Jury Instructions Criminal, § 3.10 (2005); Committee on
Model Criminal Jury Instructions Within the Ninth Circuit, Ninth Circuit Manual of
Model Criminal Jury Instructions, §§ 8.16 & 8.20 (2004); Criminal Pattern Jury
Instruction Committee of the United States Court of Appeals for the Tenth Circuit,
Tenth Circuit Criminal Pattern Jury Instructions, § 2.21 (2005); Committee on Pattern
Jury Instructions of the Judicial Council of the Eleventh Circuit, Eleventh Circuit
Pattern Jury Instructions Criminal, § 13.5 (2003); Kevin F. O’Malley, Jay E. Grenig,
Hon. William C. Lee, Federal Jury Practice and Instructions Criminal, § 31.10 (5th
ed. 2000). We have previously cited various model jury instructions in considering
the sufficiency of a criminal instruction. See United States v. Purkey, 428 F.3d 738,
754-55 (8th Cir. 2005), cert. denied, 127 S.Ct. 433 (2006). Although a Pinkerton
instruction has been frequently given by the district courts and considered by this
court, the Judicial Committee on Model Jury Instructions for the Eighth Circuit has
not promulgated a model Pinkerton instruction. See Judicial Committee on Model
Jury Instructions for the Eighth Circuit, Eighth Circuit Manual of Model Criminal
Jury Instructions (2003).

                                          -13-
to commit the substantive offense, with certain exceptions, are separate and distinct
offenses); Brinkley v. United States, 560 F.2d 871, 874 (8th Cir. 1977) (conspiracy
does not merge with the substantive offense of bank robbery). Instead, the United
States sought, unsuccessfully, to prove that Zackery aided and abetted his accomplice
in the possession of a firearm. The result of the government’s charging decision is
that it could not proceed under the Pinkerton theory. Although Zackery was informed
from a reading of the indictment that he could be found guilty of the firearms charge
as an aider and abettor, the indictment provided no notice that his guilt could be
premised upon his being found guilty of an uncharged conspiracy. Accordingly,
Zackery’s conviction of carrying a firearm in furtherance of a bank robbery should be
reversed.

      I therefore respectfully dissent.
                       ______________________________




                                        -14-
