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.
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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
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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
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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.
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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. . . .
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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
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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
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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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