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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 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. 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 page 11 |
