From: [c h risw] at [bga.com] (chris walker) Newsgroups: talk.politics.guns Subject: Waco: Defense Response to Reinstatement of Verdict Date: 28 Jul 1994 17:49:52 -0500 * Origin: The Rock BBS--Religion, Debate, Literature. (1:387/31) Defense Response to Motion to Reinstate of Branch Davidian verdicts. > IN THE UNITED STATES DISTRICT COURT > FOR THE WESTERN DISTRICT OF TEXAS > WACO DIVISION > > {not filed} > >UNITED STATES OF AMERICA : > >v. : Criminal No. W-93-CR-046(12) > >RUTH OTTMAN RIDDLE (12) : > > > DEFENDANT'S RESPONSE TO GOVERNMENT'S > MOTION TO REINSTATE GUILTY VERDICTS > (WITH AUTHORITIES) > > TO WALTER S. SMITH, JR., UNITED STATES DISTRICT JUDGE: > > COMES NOW Defendant Ruth Ottman Riddle, by and through her >undersigned counsel, and files this response to the Motion for >the United States to Reinstate Jury's Guilty Verdicts on Count >Three of the Indictment. Defendant responds thusly: > > I. > > On February 26, 1994, the jury in this case found all eleven >defendants not guilty on Count One, conspiracy to murder federal >agents, and Count two, murder of federal agents. The jury found >seven defendants, including Ruth Riddle, guilty on Count three, >using or carrying a firearm during and in relation to the >commission of the conspiracy alleged in Count one. The jury >instructions as to Count three specifically required the jury >to find that a defendant had committed the crime of conspiracy >alleged in Count one before it could find a defendant guilty of >Count three. > > II. > > Concerned by the inconsistent verdicts in Counts one and three, >the Court asked counsel for the affected defendants to approach >the bench. a bench conference ensued, page 1 >which has been transcribed, and which Defendant will refer to >here as "TR." At the bench conference, the Government urged the >Court _not_ to accept the verdict in Count three, TR.-4; and >asked the Court to send the jury back to "resolve" the conflict. >TR.-5. The Court agreed with counsel for Defendant Brad Branch >that the jury could not change its verdict on Count one. _Id_. >The Court further opined that "I don't see anyway they can >correct their mistake except by a finding of not guilty on Count >three." TR.-6. > > Of equal significance, the Court realized that jeopardy had not >terminated since it had not yet accepted the verdict. TR.-6 (The >Court said jeopardy had not "attached" but obviously meant that >the defendants were still in jeopardy until there was a final >verdict). The transcript of the bench conference ends with Mr. >Johnston requesting that the jury be reinstructed as to Count >three and Mr. Jahn saying "Send them back." TR.-7 > > III. > > On February 28, 1994, the Government filed a motion requesting >relief it never asked for at trial _and in fact specifically >objected to_: namely, that the Court accept the verdict on Count >three. Defendant maintains that it is unnecessary and legally >improper to consider the merits of the Government's motion as far >as the propriety of accepting the inconsistent verdicts here. The >Government's motion should be rejected out-of-hand, for three >reasons. > > A. > > The first reason is self-evident from the record. Not only was >the Government "unable at [the time of the trial] to articulate a >legal rationale not to set the verdict in Count three aside," >Court's order of March 1, 1994, but the Government in fact did >not want the page 2 >verdict to be accepted. Instead, what the Government wanted was >for the jury to reconsider the conspiracy issue in Count one, >hoping, of course, for a guilty verdict on _both_ Count one and >Count three. Never did the Government say, as they now want to >say in an eleventh-hour attempt to save an unsuccessful >prosecution, that the Government must accept the verdict in Count >one, and the Defendant must accept it on Count three. > > Under Rule 51 of the Federal Rules of Criminal Procedure, >however, a party must "at the time the ruling or order of the >court is made or sought, make 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 therefor. . . ." The >United States of America is not above the law, and Rule 51 >applies just as equally to it as to a criminal defendant. In this >case, not only did the objection to the Court's action come one >and one-half _days_ after trial, _cf. United States v. Pool_, 660 >F.2d 547 (5th Cir. 1981)(Government objection to defense closing >argument timely when issue raised before and after, but not >during, argument), but the Government now asks for relief that >Mr. Jahn specifically refused that the time of trial. > > If, however, the shoe were on the other foot, and Defendants had >asked for the jury to reconsider its verdicts, and the jury had >then returned guilty verdicts on Counts one and three, would the >Defendants be heard thirty-six hours later to request that the >original verdicts be reinstated, since inconsistent verdicts are >not such a bad thing after all? Of course not. If a party wants a >certain type of relief, the party must ask for it in a timely >fashion, and cannot complain in hindsight, whether its original >failure was due page 3 >to ignorance or trial strategy. The Government clearly waived its >right to the relief it now seeks, and to even consider the >Government's motion is an affront not only to Rule 51 but to Due >Process. Moreover, its action smacks of vindictiveness. > > B. > > Defendant also contends that reinstatement of the verdict is >barred by the Double Jeopardy Clause. It is settled that a >"judgment of acquittal, however erroneous, bars further >prosecution" on an offense. _Sanabria v. United States_, 437 U.S. >54,69 (1978)(Emphasis added). It is true, as the Government >maintains, that in the case of a _post-verdict_ judgment or >acquittal, Double Jeopardy is no bar to appellate review. > > In this case, however, the record 1 reflects that the Court had >decided to set aside the verdicts on Count three _before_ they >were final and before jeopardy had terminated. _See_ _United >States v. White_, 972 F.2d 590, 595 (5th Cir. 1992) (Verdict not >final until result announced in open court and opportunity for >jury to be polled). The Court's decision at the bench conference >is clear from its later remarks to counsel for Defendant Castillo >that "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 could have made was >to change that finding to not guilty." TR.-10 (Emphasis added). > >--------------------- >1 Defendant does not believe that the transcript completely >reflects what the Court said at the bench conference. Counsel for >Defendant Riddle, as well as counsel for other defendants, >recollect that the Court said it was setting aside the verdicts. >Pursuant to Rule 10(e) of the Federal Rules of Appellate >Procedure, Defendant requests a hearing in order for her counsel >to testify under oath as to what occurred at the bench >conference, so that the record may speak the truth. page 4 > In short, the Court's decision at the bench effectively amounted >to a judgment of acquittal _before_ there was any verdict. The >fact that the Court couched its decision in terms of "setting >aside the verdict" is not important. As the Supreme Court has >said, "we have emphasized that what constitutes an `acquittal' is >not to be controlled by the form of the judge's action. . . >Rather, we must determine whether the ruling of the judge, >_whatever its label_, actually represents a resolution, _correct >or not_, of some or all of the factual elements of the offense >charged." _United States v. Martin Linen Supply Co., 430 >U.S. 564, 571 (Emphasis added; footnote omitted). In agreeing >with defense counsel that the jury's verdict on Count one >necessarily meant that the "first element" of Count three has >not been satisfied, TR.-4, the Court resolved the question of >legal guilt before the verdict was final and before jeopardy >terminated; there is no verdict of guilty to reinstate, >and the Court's decision is not reviewable. > > C. > > Finally, principles of fairness implicit in the Due Process >Clause bar granting the Government's motion. To allow the >reinstatement sought by the Government would unfairly prejudice >Ruth Riddle and deny her her right to a fair trial because when >the Court set aside the "guilty" findings, the defendants no >longer had any reason to seek further deliberations of the jury >to obtain "not guilty" findings from the jury on Count three. >When the Court set aside the "guilty" findings, the defendants >were ipso facto precluded from asking the Court to order the >jury to renew deliberations, and thereby avoiding the result the >Government seeks by its motion to reinstate. It should be >remembered that at the time of the bench conference, the verdict >had not yet been published, and so the jury page 5 >could have been ordered to renew its deliberations. Had the Court >refused to set aside the "guilty" findings, Ruth Riddle would >have requested further deliberations by the jury. It is a denial >of her constitutional right to a fair trial to be placed in a >position whereby in relying on the Court's ruling, she is >precluded from taking the necessary remedial action (asking that >the jury resume deliberations) to avoid the result of a >subsequent objection to the Court's ruling by the Government. > > Submitted with due deference, > > [signed] > --------------------------- > JOSEPH A. TURNER > 1504 West Avenue > Austin, Texas 78701 > (512)474-4892 > (FAX)474-8252 > State Bar No. 20322500 > ATTORNEY FOR DEFENDANT > > > [signed] > --------------------------- > > TERRENCE W. KIRK > 1504 West Avenue > Austin, Texas 78701 > (512)474-4892 > (FAX)474-8252 > State Bar No. 11513500 > ATTORNEY FOR DEFENDANT page 6 > _CERTIFICATE OF SERVICE_ > > I hereby certify that a true and correct copy of the foregoing >Defendant's Response to Government's Motion to Reinstate Guilty >Verdicts (With Authorities) has been furnished by facsimile >and U.S. first class mail to Mr. W. Ray Jahn, Assistant United >States Attorney, 700 S. University Parks, Suite 770, P.O. Box >828, Waco, Texas, 76706, and by U.S. first class mail to all >defense counsel of record, on this the __4th_ day of March, >1994. > > [signed] > --------------------------- > > JOSEPH A. TURNER