Waco Memorandum Opinion and Order

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

WACO DIVISION

{filed MARCH 9, 1994, initialed by clerk}

UNITED STATES OF AMERICA :

:

v. : Criminal No. W-93-CR-046

:

BRAD EUGENE BRANCH (2), :

KEVIN WHITECLIFF (3), :

JAIME CASTILLO (5), :

LIVINGSTONE FAGAN (6), :

GRAEME LEONARD CRADDOCK (10), :

RENOS AVRAAM (11), and :

RUTH OTTMAN RIDDLE (12), :

Defendants. :

MEMORANDUM OPINION AND ORDER

Came on to be considered the Motion for the United States to Reinstate Jury's Guilty Verdicts on Count Three of the Indictment, Brad Branch's Response, Ruth Riddle's Response, and Graeme Craddock's Response. The remaining Defendants have adopted the aforementioned Responses.

I. Procedural Development

On Saturday, February 26, 1994, the jury in this case returned its verdicts, finding all Defendants not guilty on Count One of the Indictment -- Conspiracy to Murder Federal Officers, but finding seven (7) of the Defendants, Brad Eugene Branch, Kevin Whitecliff, Jaime Castillo, Livingstone Fagan, Graeme Leonard Craddock, Renos Avraam, and Ruth Ottman Riddle, guilty of Count Three -- Carrying a Firearm During or in Relation to a Crime of Violence. With regard to Count Three, the Court instructed the jury as follows:

For you to find a Defendant guilty of this crime, you must be convinced that the government has proved each of the following beyond a reasonable doubt:

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_First_: That the Defendant under consideration committed

the crime alleged in Count One of the Indictment. I instruct

you that Conspiracy to Murder Federal Officers and

Employees of the United States is a crime of violence; and

_Second_: That the Defendant under consideration knowingly

used or carried a firearm during and in relation to the

Defendant's commission of the crime alleged in Count One of

the Indictment.

The Court, noting that these verdicts were inconsistent, called

a bench conference. During the bench conference, the Court

concluded that these verdicts were inconsistent, but the Court

refused to send the jury back to reconcile the verdicts, or to

instruct a not guilty verdict on Count Three. The verdict was

then published as answered by the jury. After the jury was

discharged, the following colloquy took place:

MR. KEARNEY: Also, Judge, I don't know, is there going to

be some further action as to the finding on Count Three?

THE COURT: I'll enter a written order.

MR. KEARNEY: Okay. I'm not sure what that -- I'm not sure

what the Order is -- I misunderstood, I guess, of what the

Court was going to do. May I approach the bench.

THE COURT: You don't need to. The guilty finding as to Count

Three will have to be set aside, because of the necessity, the

jury could not find the defendant guilty of that offense

without first having found that defendant [guilty] of the

conspiracy offense alleged in Count One, and the jury found

all defendants not guilty of that offense. So, that portion of

the verdict simply cannot stand, there seemed to be no point

in asking the jury to retire and reconsider it, because the

only decision they would have made was to change that finding

to not guilty. So, the Court will set that finding aside.

The Court did not intend to set the verdict on Count Three aside

at that time. Rather, the Court always spoke prospectively,

noting that it "will" set the verdict aside in a written order.

Before the Court was able to rule on that issue in a written

order, however, the Government filed the present motion,

unequivocally demonstrating the error of this Court's prior

reasoning.

page 2
II. DISCUSSION OF APPLICABLE LEGAL AUTHORITY

As early as 1932, the United States Supreme Court held that a

defendant could not capitalize on apparent inconsistent verdicts

by contrasting his conviction in one count with his acquittal on

another. Dunn v. United States, 284 U.S. 390 (1932). Justice

Holmes, writing the opinion of the Court, succinctly held:

Consistency in the verdict is not necessary. Each count in

an indictment is regarded as if it was a separate indictment.

[citation omitted] If separate indictments had been presented

against the defendant for possession and for maintenance of a

nuisance, and had been separately tried, the same evidence

being offered in support of each, an acquittal on one could

not be pleaded as res judicata on the other. Where the

offenses are separately charged in the counts of a single

indictment the same rule must hold. As was said in Steckler

v. United States, 7 F.2d 59, 60 (2d Cir. 1925):

The most that can be said in such cases is that the

verdict shows that either in the acquittal or the

conviction the jury did not speak their real

conclusions, but that does not show that they were

not convinced of the defendant's guilt. We interpret

the acquittal as no more than their assumption of a

power which they had no right to exercise, but to

which they were disposed through lenity.

That the verdict may have been the result of a compromise, or

of a mistake on the part of the jury, is possible. But

verdicts cannot be upset by speculation or inquiry into such

matters.

Dunn at 394.

The Supreme Court has since reaffirmed this principle, in a case

very similar to that currently before the Court. United States v.

Powell, 469 U.S. 57 (1984). In Powell, the defendant was indicted

on a number of counts for violations of the federal narcotics

laws. Count 1 charged her with conspiracy to possess cocaine with

intent to distribute it. The "overt acts" listed in support of

this conspiracy included tapped telephone conversations

indicating that the defendant was helping her husband and son

distribute drugs and collect

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money for drugs sold. Count 9 charged the defendant with

possession of cocaine with intent to distribute it. Counts 3-6

charged the defendant with the compound offenses of using the

telephone in "committing and in causing and facilitating" the

alleged conspiracy and possession. The jury acquitted the

defendant on Counts 1, 6 and 9, but convicted her of Counts

3-5. The defendant appealed. Powell at 474.



The Ninth Circuit reversed the defendant's conviction, finding

an exception to Dunn where a defendant is convicted of a compound

offense, and yet acquitted of the predicate offense. The Ninth

Circuit explained that an acquittal on the predicate felonies,

conspiracy and possession, necessarily indicated that there was

insufficient evidence to support the telephone facilitation

convictions. This mandated an acquittal on the telephone

facilitation convictions as well. Id. at 474-75 (citing, 708 F.2d

455 (9th Cir. 1983)).

The Supreme Court reversed, noting that much of Justice Holmes

reasoning in Dunn still held true in 1984. The Court stated

several rationales why an inconsistent verdict such as the one

in the present case should not be disturbed:

First, . . . inconsistent verdicts-even verdicts that

acquit on a predicate offense while convicting on the

compound offense--should not necessarily be interpreted as

a windfall to the Government at the defendant's expense. It

is equally possible that the jury, convinced of guilt,

properly reached its conclusion on the compound offense, and

then through the mistake, compromise, or lenity, arrived at

an inconsistent conclusion on the [predicate] offense. But

in such situations the Government has no recourse if it

wishes to correct or otherwise upsetting such an acquittal

by the Constitution's Double Jeopardy Clause. [citations

omitted]

Inconsistent verdicts therefore present a situation where

`error,' in the sense that the jury has not followed the

court's instructions, most certainly has occurred, but

it is unclear whose ox has been gored. Given this

uncertainty, and the fact that the Government is precluded

from challenging the acquittal, it is hardly satisfactory

to allow the defendant to receive a new trial on the

page 4

conviction as a matter of course. . . . [T]he possibility

that the inconsistent verdicts may favor the criminal

defendant as well as the Government militates against

review of such convictions at the defendant's behest. This

possibility is a premise of Dunn's alternative rationale--

that such inconsistencies often are a product of jury

lenity. Thus, Dunn has been explained by both courts and

commentators as a recognition of the jury's historic

function, in criminal trials, as a check against the

arbitrary and oppressive exercises of power by the

Executive Branch. [citations omitted]

The burden of the exercise of lenity falls only on the

Government, and it has been suggested that such an

alternative should be available for the difficult cases

where the jury wishes to avoid an all or nothing verdict.

[citation omitted] . . .

Second, respondent's argument that an acquittal on a

predicate offense necessitates a finding of insufficient

evidence on a compound felony count simply misunderstands

the nature of the inconsistent verdict problem. Whether

presented as an insufficient evidence argument, or as an

argument that the acquittal on the predicate offense should

collaterally estop the Government on the compound offense,

the argument necessarily assumes that the acquittal on the

predicate offense was proper-- the one the jury `really

meant.' This, of course, is not necessarily correct; all

we know is that the verdicts are inconsistent. The

Government could just as easily--and erroneously--argue that

since the jury convicted on the compound offense the

evidence on the predicate offense must have been sufficient.

. . .

The problem is not altered when the trial judge instructs

the jury that it must find the defendant guilty of the

predicate offense to convict on the compound offense.

Although such an instruction might indicate that the

counts are no longer independent, if inconsistent verdicts

are nevertheless reached those verdicts still are likely

to be the result of mistake, or lenity, and therefore are

subject to the Dunn rationale. . . .

Id. at 476-79.

The United States Court of Appeals for the District of Columbia

applied this same principle in affirming a conviction under the

statute in question here -- 18 U.S.C. {ASCII character 21,

paragraph symbol, deleted} 924(c)(1). United States v Laing,

889 F.2d 281 (D.C. Cir. 1989), cert. denied, 494 U.S. 1069

(1990). In that case, the defendant was acquitted on the

predicate drug offense, possession of cocaine with intent to

distribute it, but convicted of the gun violation. The circuit

court, citing

page 5

Powell, noted that such inconsistent verdicts are insulated from

appellate review.

The Fifth Circuit has also held that conviction of the predicate

offense is unnecessary to sustain a conviction under {ASCII

character 21, paragraph symbol, deleted} 924(c)(1). In United

States v. Thomas, 12 F.3d 1350 (5th Cir. 1994), a case

originating in this Court, Roy Lee Hodgkiss was acquitted 1 of

Conspiracy to Possess a Controlled Substance With Intent to

Distribute It, in violation of 21 U.S.C. {2 ASCII character 21's,

paragraph symbol, deleted} 846 and 841(a)(1), but convicted of

using or carrying a firearm, namely a machine gun, in relation

to a drug trafficking offense. Hodgkiss contended on appeal that

this Court erred in denying his post-trial motion for judgment of

acquittal on the machine gun count, which defined the predicate

drug trafficking crime required by {ASCII character 21, paragraph

symbol, deleted} 924(c)(1) to be the conspiracy of which he

was acquitted. The Fifth Circuit held:

Hodgkiss misinterprets the requirements of {ASCII character

21, paragraph symbol, deleted} 924(c). `There is no statutory

requirement that the government secure an underlying drug

trafficking conviction as a predicate for invoking {ASCII

character 21, paragraph symbol, deleted} 924(c)(1).' United

States v. Munoz-Fabella, 896 F.2d 908, 909 (5th Cir.), cert.

denied, 498 U.S. 824 (1993). Instead, `it is only the fact

of the offense, and not a conviction, that is needed to

establish the required predicate.' Id, at 911; see also

United States v. Ruiz, 989 F.2d 905, 911 (5th Cir.)

(acquittal on the predicate count does not preclude a

conviction under {ASCII character 21, paragraph symbol,

deleted} 924(c) if a reasonable jury could have found

the defendant guilty of the predicate act), cert. denied,

114 S.Ct. 145 (1993).

Thomas at 1362.



III. APPLICATION

Under the facts of this case, the jury's verdict in Count Three

should clearly stand. It is quite possible that the jury,

convinced of the defendant's guilt, properly reached its

conclusion on Count Three, and then through mistake, compromise,

or lenity, arrived at an

--------------------

1 Although the jury found Hodgkiss guilty of the conspiracy,

this Court entered a judgment of acquittal on that count because

the jury also found Hodgkiss guilty of engaging in a continuing

criminal enterprise, of which conspiracy is a lesser included

offense. Thomas at 1362 n.17.

page 6



inconsistent conclusion on Count One. As stated in Powell, the

jury's historic function, in criminal trials, is to constitute a

check against the arbitrary and oppressive exercises of power by

the Executive Branch. The Defendants in this case certainly

played upon the jury's role as such a check. They should not now

be heard to complain that the jury failed to go far enough in

reaching its compromise. This Court is bound under the law to

carry out the jury's mandate and to enforce its verdict.

The Defendants, recognizing the solid legal authority cited above

and its clear application to the facts of this case, attempt to

divert the Court's attention to peripheral matters and equitable

arguments. Because Branch and Riddle raise identical arguments,

their mutual position will only be discussed in reference to

Riddle's Response.

Ruth Riddle argues that the Government's Motion should be

"rejected out-of-hand" for three reasons. Riddle's Response at 2.

First, she argues that "not only was the Government unable to

articulate a legal rationale not to set the verdict in Count

Three aside, but the Government in fact did not want the verdict

to be accepted." Id. at 2-3. Riddle argues that the Government

failed to comply with the requirements of Rule 51 of the Federal

Rules of Criminal Procedure, and has therefore waived its right

to relief.2 Riddle states that the Government's action "smacks

of vindictiveness" and demonstrates that the Government "still

does not understand that it is not above the law." Id. at 4.

--------------------

2 Rule 51, in pertinent part, provides:

Exceptions to rulings or orders of the court are unnecessary

and for all purposes for which an exception has heretofore

been necessary it is sufficient that a party, at the time the

ruling or order of the court is made or sought, makes known

to the court the action which that party desires the court to

take or that party's objection to the action of the court and

the grounds therefore. . . .

page 7



The Court is of the opinion that Riddle's first rationale lacks

merit. The Government never expressly conceded the point. Mr.

Jahn felt that the jury should be sent back for further

deliberations. This was clearly inappropriate because the jury

could not have changed their not guilty verdicts on Count One for

such would have violated the Defendant's Double Jeopardy rights.

He did not, however, feel that a not guilty verdict should be

instructed as to Count Three. Mr. Johnston was unsure in his

remarks to the Court. The fact that the Government was unable to

articulate the precise legal rationale set forth in Dunn and

Powell is irrelevant. The Government clearly opposed setting the

verdicts in Count Three aside. Additionally, the Court never

expressly set the verdicts aside, instead noting that a written

order would be entered. This permitted further briefing by the

parties.

Riddle's second contention is that the Court's actions amounted

to a pre-verdict judgment of acquittal, and reinstatement of the

verdict is barred by the Double Jeopardy Clause. Riddle agrees

that a post-judgment verdict of acquittal does not bar appellate

review on Double Jeopardy grounds. Riddle believes that the

record in this case, however, establishes that the Court had

decided to set the verdicts on Count Three aside before they

were final and before jeopardy had terminated. Riddle further

argues that the transcript is not complete and omits portions of

the bench conference.



This Court disagrees and expressly makes a finding of fact that

the transcript accurately reflects the bench conference. This

Court never expressly set aside the verdicts in Count Three.

Rather, the Court consistently spoke prospectively in terms of a

future written order. The Court was unsure of the law in this

area, and certainly welcomes the post-verdict briefs on this

issue. Although the rationale set forth in Dunn and Powell might

page 8

appear counter-intuitive, it is the law nonetheless, and this

Court is bound to follow it. Additionally, even after the bench

conference, the verdict was published by the Clerk of Court in

precisely the same manner as returned by the jury, i.e., the

seven defendants named above were found guilty of Count Three.

When Mr. Kearney further inquired of the Court, the undersigned

stated that a written order would be issued, and that "the guilty

finding as to Count Three will have to be set aside." Clearly,

the Court did not set these verdicts aside prior to their

publication.

Moreover, even if the Court's actions could be interpreted as

setting aside Count Three pre-verdict, such actions did not amount

to a judgment of acquittal. The Court hereby makes a finding that

the evidence pertaining to Count Three was legally sufficient to

withstand a motion for judgment of acquittal under Rule 29, and

the Court did not intend its actions to indicate otherwise. The

Court's sole concern was with the inconsistency between the

jury's verdicts in Count One and Count Three.

Riddle's final argument is that "principles of fairness implicit

in the Due Process Clause bar granting the Government's motion."

Riddle's Response at 5. Particularly, she argues that the Court's

actions precluded defense counsel from seeking further

deliberations from the jury on Count Three. This argument clearly

lacks merit because under the applicable legal authority, Riddle

had no right to seek further jury deliberations. The jury

verdict, although inconsistent, was acceptable based on the

rationale articulate in Dunn and Powell. Therefore, the Court

fails to see any error, much less prejudice.

Although unstated, Riddle presumably feels that this action is

unfair because she was led to believe that she would be released,

and now she is being detained facing up to thirty

page 9

years incarceration. While the Court regrets its original

interpretation of the law, such should not lead to an annulment

of the jury's verdict. The jury found Defendants Branch,

Whitecliff, Castillo, Fagan, Craddock, Avraam, and Riddle guilty

of Count Three of the Indictment. For whatever reason, the same

jury acquitted these Defendants of Count One (which carried a

mandatory life sentence). The Defendants can no more complain

of the jury's lenity than can the Government.

Graeme Craddock raises two additional arguments in his Response.

He first argues that because his attorney, Stanley Rentz, was not

asked to approach the bench to discuss the inconsistent verdicts,

he was denied effective assistance of counsel. This argument

lacks merit. First, while it is true that the Court inadvertently

failed to ask Mr. Rentz to approach the bench, his client's

interests have been adequately protected by this very Response.

The Court did not set aside the verdicts in Count Three on

February 26, 1994, and has saved that issue for today. Therefore,

Craddock has had an opportunity for argument. Second, several

defense attorneys did approach the bench and were able to

articulate rationale for the entire defense.

Craddock next argues that as the only Defendant found not guilty

of the lesser included offense of voluntary manslaughter, the

jury's verdict on Count Three should not stand. As the above

discussion indicates, however, the propriety of the jury's

verdict on Count Three in no way hinges upon their finding of

voluntary manslaughter. The jury's verdicts should stand.





IV. CONCLUSION

The jury's finding of not guilty in Count One is certainly

inconsistent with its finding

page 10

of guilty in Count Three. For the reasons previously stated,

however, there is no reason to set these guilty findings aside

merely because the verdicts cannot rationally be reconciled. The

Defendants are given the benefit of their acquittals on Count

One, and it is neither irrational nor illogical to require them

to accept the burden of conviction on Count Three. This Court is

simply enforcing the mandate of a jury of the Defendants' peers,

in accordance with the Constitution of the United States, and

the well-reasoned opinions of the United States Supreme Court.

Accordingly, it is

ORDERED that the Motion for the United States to Reinstate

Jury's Guilty Verdicts on Count Three of the Indictment is

GRANTED. It is further

ORDERED that the jury verdicts in Count Three, never

expressly set aside by the Court, shall stand. It is further

ORDERED that Defendants Brad Eugene Branch, Kevin Whitecliff,

Jaime Castillo, Livingstone Fagan, Graeme Leonard Craddock,

Renos Avraam, and Ruth Ottman Riddle are guilty of Count Three

of the Indictment, Carrying a Firearm During or in Relation to

a Crime of Violence, and will be sentenced for this offense.

SIGNED this __9th__ day of March, 1994.

[signed]

___________________________

WALTER S. SMITH, JR.

UNITED STATES DISTRICT JUDGE

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