Is a conspirator liable for the criminal acts of his co-conspirators?

Under the rule first enunciated in Pinkerton v. United States, 328 U.S. 640 (1946), each conspirator is liable for the criminal acts of his co-conspirators as long as the following conditions are met: (1) the substantive offense was committed in furtherance of the conspiracy; (2) the offense fell within the scope of the unlawful project; and (3) the offense could reasonably have been foreseen as a necessary or natural consequence of the unlawful agreement.

Id. at 1475-76.

In United States v. Gaudin, 28 F.3d 943 (9th Cir.1994) (en banc), aff'd 63 U.S.L.W. 4611, we held that failing to submit an element of a crime to the jury is "fundamental structural error." Id. at 951. "It would not be faithful to the Sixth Amendment for the judge to decide the factual component of the element necessary to constitute the crime." Id. at 949. We then limited the scope of the inquiry on appeal. "When proof of an element has been completely removed from the jury's determination, there can be no inquiry into what evidence the jury considered to establish that element because the jury was precluded from considering whether the element existed at all." Id. at 951.