From: [c h risw] at [bga.com] (chris walker)
Newsgroups: talk.politics.guns
Subject: Waco: Prosecution motion to reinstate verdicts
Date: 28 Jul 1994 17:51:14 -0500


Reinstatement of the Branch Davidian verdicts


>            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:
    
page 1

>     _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

page 3

>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.

>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

page 11