United States v. Brad Eugene Branch, Kevin Whitecliff, Jaime Castillo, Renos Lenny Avraam, Paul Fatta and Graeme Leonard Craddock

‘put on investigation “was federal Johnson’s charges were the state because

hold’ not serious, of the some but also because more prosecution to the federal essential The district the state.” hands of in the was prose- federal that “the further found grievance or knowledge of the no had cutors to the return reprimand prior findings are Those indictment.” superseding any presump- clearly erroneous. Absent any evi- absent vindictiveness and tion of such, prove that the cannot Johnson dence of used as a tool prosecution Government’s district court Consequently, the state. refusing to dismiss Johnson’s err did not superseding indictment.

CONCLUSION reasons, judgment of foregoing For the court is AFFIRMED. the district America, STATES UNITED Plaintiff-Appellee, Whitecliff, BRANCH, Eugene Kevin Brad Avraam, Castillo, Lenny Renos Jaime Crad and Graeme Leonard Fatta Paul Defendants-Appellants. dock,

No. 94-50437. Appeals, Court of United States Fifth Circuit.

Aug. Denying Rehearing and Order Rehearing En Banc Suggestion for 25, 1996. Sept.

703

707

709 Rosen, Houston, TX,

Steven Rocket for defendant-appellant, Whitecliff. Stephen Halbrook, Fairfax, VA, P. for de- fendant-appellant, Castillo. Carroll, Leon,

John F. Amberson and Car- roll, Antonio, TX, San for defendant-appel- lant, Avraam. DeGeurin, Foreman,

Mike J. DeGeurin Nugent, Houston, TX, for defendant- appellant, Fatta.

George Rentz, Waco, Stanley TX, for de- fendant-appellant, Craddock. DUHÉ,

Before HIGGINBOTHAM and Judges, *, Circuit and SCHWARZER Judge. District HIGGINBOTHAM, PATRICK E. Circuit Judge: appeal

This is an of six defendants convict- ed of federal crimes for their role tragic dramatic and events at Mount Carmel Waco, during early outside Texas months firelight of 1993. A erupted when federal agents Alcohol, Tobacco, from Bureau of attempted Firearms to execute a search arrest on February warrant Four and three residents of the com- pound lost their lives. Each defendant now challenges conviction and his sentence.

I. 65-year-old Branch Davidians are originally

sect affiliated with the Seventh Day urges Church. Their faith Adventist study emphasis life of Bible on an immi- nent, confrontation apocalyptic between the Davidians group’s “beast”. The leader, Howell, instructed Vernon members Joseph Wyderko, Charles United States to arm preparation themselves in for the Justice, Department Division, Criminal changed final battle. Howell name DC, Washington, LeRoy Jahn, Morgan W. David preached Koresh 1990 and “if Jahn, Ray Office of the United States Attor- you God, you can’t kill can’t for die for God.” Antonio, ney, TX, plaintiff-appellee. San for He told his that the “beast” followers includ- Waco, TX, Ferguson, and, Gale Richard specifically, de- ed the U.S. Government fendant-appellant Branch. ATF.

* nia, Judge sitting designation. District of the Northern District of Califor- agents returned compound. The stockpiled from the Davidians other Koresh and agents gunbattle, four ensuing fire. In They fortified

weapons and ammunition. Twenty- Davidians were killed. and three Carmel, budding a Mount compound called four Davidians were agents ATF and two and an under- barrier high concrete two-foot wounded. studies” used “Bible Koresh ground bunker. of fire- in the use residents to instruct the compound, then surrounded The FBI Mount short, turned the Davidians In arms. and, and days, law enforcement fortress. into a small Carmel During the were at a stand-off. Davidians stand-off, Davidians left approximately 30 Davidians ATF discovered The custody. On compound and were taken into including fully auto- weapons, amassed had 19, to end the agents attempted FBI April grenades. On hand machineguns and matic gas, flooding compound with by stand-off 25, 1998, agents an ATF obtained February Around did not leave. the Davidians but and a war- for Koresh search warrant arrest compound noon, on Davidians set the compound. the Mount Carmel rant for remaining 84 occu- Seventy-five of the fire. perished the blaze. pants to execute the search The ATF decided 1993, 28, February on and arrest warrant 3,1993, a grand a returned August On learn, but, of sur- to the element as it was against superseding 10-count indictment A.M., an lost. Around 8:00 prise had been The surviving Davidians. twelve Rodriguez, agent, Roberto undercover ATF appeal are: to this counts relevant spoke compound and the Davidian visited 19, February or before 1: From on Count conversation, During Ko- Koresh. 1993, to mur- April conspiracy returned, a he phone call. When resh took a employees en- officers and der federal Rodriguez, told “Rob- visibly Koresh shaken performance of their official gaged in the will ert, AFT or National neither the Guard § 1117. in violation of 18 U.S.C. duties once, they’ll They got me get me. ever February or about 2: On Count again.” Koresh walked get me then never abetting of four aiding and the murder and looked toward over to the windows Alcohol, Bureau of Tobacco agents of the ATF the undercover farmhouse used (ATF) agents were while said & Firearms said, Rodriguez and agents. He turned performance of their official engaged in the has Robert. The time “They’re coming, 1111(a), §§ duties, in violation of 18 U.S.C. compound around left the Rodriguez come.” § 2. 18 U.S.C. ATF Koresh A.M. and advised the 9:00 28, 1993, February 3: On or about Count forty-five the raid least had learned of during carrying using or firearm pro- ATF decided to earlier. The minutes violence, wit, to a crime relation and search warrants. ceed with the arrest in violation of 18 U.S.C. Count 924(c)(1). § decision continue When ATF’s women, men, made, approximately 115 19,1993, April know- 7: or about Count On children, age to 70 ranging in from 6 months firearm, ing possession unlawful ATF Mount The years, resided at Carmel. grenade, in violation explosive namely agents, trans- for ATF who were plan called 5861(d). § 26of U.S.C. trailers, compound in two ported to the cattle February From on or Count 9: about compound, quickly and encircle unload conspiracy to February 1992 to helicopters conducted while National Guard possess ma- unlawfully manufacture and diversionary rear of the Mount raid § U.S.C. ehineguns violation compound. Carmel 922(o). and U.S.C. helicop- quickly awry. February February plan went 1992 to Count 10: agents 19, 1993, abetting in unlaw- aiding until did not arrive after ATF ters in violation possession, machineguns begun unloading from the cattle trailers. ful had 922(o). §§ unloaded, gunfire erupted of 18 U.S.C. As the

7H charges upheld The Government dismissed the other constitutionality circuits had Davidians, 922(o). against Kathryn § Hale, one of the twelve See United States v. 978 Schroeder, (8th pursuant bargain. plea Cir.1992), to a After F.2d 1016 507 months, jury lasting nearly trial two the U.S. 113 S.Ct. 123 L.Ed.2d 174 jury (1993); acquitted Evans, four of the Davidians on all United States v. 928 F.2d 858 (9th Cir.1991). they charged. counts on which The We de novo review the dis jury acquitted also all ruling. eleven the Davidians trict court’s alleged conspiracy on Count which to 922(o) § 18 prohibits, subject U.S.C. to However, agents. jury murder federal two, exceptions here, narrow not relevant Davidians, Avraam, found seven Renos any person transferring possessing from or Branch, Castillo, Brad Jaime Graeme Crad- machinegun. requirement There is no that dock, Riddle, Livingstone Fagan, Ruth and machinegun have been interstate com- Whiteeliff, guilty using Kevin on Count 3 for Subsequent merce. to the district court’s carrying during a firearm a crime of vio- ruling, Kirk, we held United v. States 70 jury acquitted lence. The all eleven of the (5th Cir.1995), 922(o) F.3d 791 § that did not aiding defendants on Count for and abet- Congress’ power exceed under the Com- ting the murder of federal but con- panel merce Clause. That decision has been Avraam, Branch, Castillo, Fagan, victed vacated, and currently pending the case is Whiteeliff on the lesser-ineluded offense of (5th before the en banc court. 78 F.3d 160 aiding abetting voluntary manslaugh- Cir.1996). agents. Finally, jury ter of federal con- The en banc court’s resolution of this issue victed Craddock on Count 7 for unlawful govern validity will the ultimate of Fatta’s possession grenade of a hand and convicted convictions on pre- Counts and 10. Under Paul Fatta on conspiring Counts and 10 for Kirk binding panel, caselaw now we possess maehineguns to manufacture and reject will, must this contention. We howev- aiding abetting posses- for the unlawful er, pending hold the mandate decision in maehineguns, respectively. sion of Kirk. The district court sentenced defen- prison ranging dants to terms from 15 to 40 III. years, along with fines and restitution. Six jury The district court instructed the us, eight Davidians are now before to convict the defendants of murder under appealing both their convictions and sen- beyond Count it had find a reasonable They tences. have raised a host of conten- doubt that “the Defendant under consider- tions. first constitutionality We address the ation did not act in self-defense or defense of of Fatta’s firearms convictions. We then explained another.” The court self-defense arguments concerning turn to the another, and the defense of and then turned instructions and the district court’s conduct voluntary to the lesser-ineluded offense of sufficiency the trial. We then address the manslaughter. Finally, of the evidence. we review the sen- imposed by Avraam, Branch, Castillo, tences the district court. and Whiteeliff

argue that self-defense is also a defense to voluntary manslaughter. II. The Davidians re- quested an instruction to that effect and ob- conspir convicted Fatta of jected charge at the to its conference omis- ing unlawfully possess manufacture and sion. (Count 9) maehineguns aiding and abet ting possession maehineguns the unlawful A. (Count 10), both violation of 18 U.S.C. 922(o). trial,

§ On the eve of Fatta moved We review the district court’s re to dismiss the indictment on give proposed both counts. fusal to instruction 922(o) argued Congress’ He exceeded abuse of discretion. United States Cor powers rea-Ventura, under the Commerce Clause. The Cir. 1993). disagreed, noting general district court proposition several “As a a defendant 978, 112 S.Ct. L.Ed.2d any recog- 504 U.S. instruction to an is entitled (1992); Stanley, there which exists defense for nized (5th Cir.1985) (same). jury to find in his 1234-35 a reasonable sufficient for States, the evidence be sufficient requirement favor,” v. United Mathews juror 883, 886, is not limited 99 L.Ed.2d a reasonable 58, 63, persuade entrapment of discre- but ex solely an abuse defense of presume and we ‘refuse[s] for which the defendant court to all defenses “where the district tends tion theory there is production. for of See on a defense which burden charge bears initial (5th which, Liu, 449, if be- evidentiary foundation 960 F.2d 454 an States v. United legally Cir.) denied, 957, jury, (duress), be sufficient 113 by would 506 U.S. cert. lieved ” (quot- (1992). Id. innocent.’ 418, 121 the accused A district to render L.Ed.2d 341 S.Ct. 442, Rubio, F.2d 446 834 ing give v. for United States refuse to an instruction court cannot however, (5th Cir.1987)). may, The court in rec there is sufficient evidence which that requested give juror to instructor harbor a rea refuse ord for a reasonable in evidence. foundation act lacks sufficient defendant did not that the sonable doubt 1049, Tannehill, F.3d defense, v. 49 States district is not United in but the court self — U.S.-, denied, (5th Cir.), jury cert. on a put 1057 the case to the required “to (1995). 167, 133 L.Ed.2d109 ‘essentially indulges 116 en S.Ct. and even basis that States v. courages speculations.’” United cognizant that record review the We (5th Cir.1982) (affirm Collins, 431 690 F.2d in the de of evidence” the “merest scintilla ing give lesser-included offense refusal jury in does not warrant favor fendant’s denied, 1046, instruction), 460 103 cert. U.S. regarding an defense affirmative struction (1983). 1447,75 L.Ed.2d 801 S.Ct. initial bur bears the for which the defendant Jackson, v. production. States den of United in dissent measures evidence Cir.1984). (9th 1466, Under 1468 726 F.2d standard, misled record an incorrect Mathews, sufficient there must be “evidence States, in Perez v. by our United statements jury defen [the to find in for a reasonable (5th Cir.1961), and v. F.2d Strauss 297 12 insisted that favor.” We have dant’s] (5th Cir.1967), States, 376 F.2d 416 United ques a factual sufficient to raise evidence be jury must instruct the that the district jury. States tion a reasonable See United for “any which there is founda on a for defense (5th Cir.1995); Lucien, 366, 374-77 v. 61 F.3d “any in The measure of tion the evidence.” Jones, 1041, 1053 v. 839 F.2d United States allegiance. See commanded evidence” never (5th denied, 1024, Cir.), 108 486 cert. U.S. Andrew, 915, 666 F.2d 922- States v. United 1999, 100L.Ed.2d 230 S.Ct. (not (5th Cir.1982) (quorum) nn. 11 24 & issue). To the ing split on the intracircuit no Our decisions leave doubt chary contrary, of panels of this court were standing particular piece evidence while See literally applying Perez and Strauss. may support inferences warrant alone Fischel, 686 F.2d 1086 States v. United instruction, may evapo those inferences Cir.1982) (5th (refusing split); 2 to resolve n. reviewing record. For the entire rate after Leon, n. 5 v. 539 United States Ivey, F.2d in v. 949 example, United States Cir.1982) (same). (5th If the matter rested denied, (5th Cir.1991), cert. 768-69 would, there, justified perhaps, be the dissent (1992), 64, 121 819, 113 U.S. S.Ct. L.Ed.2d Mathews, how exploiting this dissonance. court’s refusal the district we affirmed Indeed, ever, in United the matter. resolved entrap jury on defense instruct (5th Cir.), Stowell, F.2d 188 States support explained that We evidence ment. denied, 1269, 117 S.Ct. 503 U.S. by other ing entrapment was overwhelmed denied, (1992), and cert. L.Ed.2d 497 was no need in the record and there evidence 292, 121 L.Ed.2d 217 Id.; see jury regarding it. instruct explained: we Pruneda-Gonzalez, 953 also Cir.) occasions Although we have on several (holding evidence after Mathews observed burden before and entrapment was insufficient to shift charge a de- must government), cert. the court persuasion theory jury.” 99-100, fense when there is evidence to so declares to the Id. at it, support language admittedly in- 292; S.Ct. at see also Andersen v. United complete. implies shorthand that a Its States, 1, 510-11, 496-98 n. support mere scintilla of evidence of a 1, 696-97, 692 n. 42 L.Ed. 1116 theory requires giving defense of an (1898) (holding that evidence did not warrant theory instruction on that at the defen- instruction, lesser-included offense despite course, any request. dant’s Of the fact that the defendant testified that he theory support of a defensive must be suf- life). killed the deceased out of fear ficient for a reasonable to rule in theory. favor of the defendant on that Decisions century rendered in the since This is what we meant when we stated dispelled any regarding Stevenson doubt may this ease that a court decide as a meaning case’s quantum and the of evidence matter law that the evidence ... fails to obliging the court to jury. instruct the De- question jury. raise a factual for the spite any uncertainty in our decisions before (citations omitted). Similarly, it, Id. at 189 ground. Mathews no broke new The Su- Perez, Judge Posner in United v. States 86 preme rejected Court had argu- earlier (7th 735, Cir.1996), F.3d interpreted 736 evidence, any scintilla, ment that even a war- rejecting “any Mathews as the notion that jury a ranted instruction on an affirmative evidence,” no matter how weak or insuffi- defense lesser-included In offense. Keeble cient, entitled the defendant to an instruction States, 205, 208, v. United 412 U.S. 93 S.Ct. surprisingly, on an affirmative defense. Not 1993, 1995, (1973), 36 L.Ed.2d 844 the Court all reiterating but one of the decisions explained jury that a court must instruct a on “any evidence” standard of Perez and a only lesser-included offense “if the evidence prior Strauss came to Mathews. And Unit- permit jury rationally would a to find him Kim, (5th 189, ed v. States 884 F.2d 193 guilty of acquit the lesser offense and him of Cir.1989), decision in circuit to greater.” See also Schmuck v. United Mathews, cite either Perez or Strauss after States, 705, 8, 1443, 489 U.S. 716 n. 109 S.Ct. question did not involve the whether there (1989) 1451 n. (reiterating L.Ed.2d 734 was sufficient evidence to warrant the re- standard); Alabama, Keeble Beck v. quested jury instruction. 625, 635, 100 2382, 2388, S.Ct. L.Ed.2d 65 392 upon The dissent relies dicta from the (1980) (same); York, Patterson v. New 432 century-old decision of Stevenson v. United 197, 18, 2319, 231 U.S. & n. 97 S.Ct. 2338 & States, 313, 839, 162 16 U.S. S.Ct. 40 L.Ed. (1977) (Powell, J., n. 53 L.Ed.2d 281 (1896), 980 but that reliance is mistaken. dissenting) (noting that an issue such as self- Stevenson, which addressed the evidence defense will not jury be submitted to the trigger jury needed to regard- instruction jus- where the defendant’s evidence does not ing offense, a lesser-included did not em- issue). tify regarding a reasonable doubt proposition brace the that even a scintilla of Mathews followed this consistent line. jury evidence warrants a instruction. To the contrary, expressly Stevenson noted that short, it enough is not that an item “[tjhere might be cases where the uncontra- of evidence unweighed viewed alone and dicted evidence was so clear and overwhelm- against supports all the evidence an inference ing” justify refusing jury to instruct the that a in defendant acted self defense. See the lesser-included offense. Id. at 16 Harrison, v. United States 55 F.3d Indeed, S.Ct. at 842. in the Court Stevenson (5th Cir.) (holding that if in evidence viewed approval referred with to its earlier decision isolation warranted lesser-included offense States, Sparf in v. U.S. if instruction but not viewed in context of the L.Ed. 343 in which the — record), -, entire U.S. explained Court that even if there is “some (1995). 116 S.Ct. 133 L.Ed.2d 225 bearing upon particular evidence issue in a cause, critical not, law, single distinction is that a item of meagre but it is so as in justify in evidence can be party produc- a verdict favor of the overwhelmed other evi it, ing in duty court is the line of when it dence the record. Id. not err and did instruction nor defense academic is neither The distinction true, general It is as a gave. it appellate instruction the character it defines

prissy; trial, and the related reflecting our that self-defense proposition, criminal review ap- defenses tendency criminal are affirmative of another defense to curb effort sporting voluntary manslaughter.1 search lawyer’s murder and peals to become to both role at ac- However, principles a central must plays general for “error.” these has room trial, duty the threshold to accede law- but a citizen’s commodate have would low as the dissent special protec- so power never been and the government ful is a vast there play; not word discharging This is it. official officials tion due federal require- concept Feola, between difference v. duties. See United scintilla. evidence of sufficient ment 1255, 1261, 671, 679, 43 L.Ed.2d 541 in their large difference equally is an There avengers citizen do need “We is central This difference application. to unlawful respond are authorized who snapshots of dissent, rely upon leading it to by gunning down offend- conduct police placed image lose their when Johnson, ing United States officers.” record, dynamic of the entire screen on the Cir.1976). (5th Other, non- they United States must we think be. Cf. Id. remedies are available. violent Browner, 554-55 Cir. 1989). lengthy after Few verdicts reached explore the law self- We need not appellate role. such trials could survive in confrontations between citizens defense can, short, application, rule a scintilla In to answer the officers and law enforcement of a trial and the review a criminal turn ex in case. As we will question asked lawyers. sporting contest for into a conviction juror not doubt that could plain, a reasonable Harrison, (noting that at 168 55 F.3d targets were their fed Cf. the defendants knew in- to warrant be sufficient must re Equally, the defendants agents. eral “merely serve lest the instruction struction a agents’ lawful force with sponded to the the mer- to invoke a for defendant device as gunfire. the ex deadly barrage of Given jury”). prerogative cy-dispensing large- traordinary amount of automatic inference becomes the contended-for When rained gunfire the defendants caliber absurdity light all the facts adduced in agents, they were federal upon persons knew trial, in province no we invade at pleas that for law offers no shelter probative value. refusing pretend to it has “respon only force that was used defendant 64-106, Sparf, 156 U.S. at See legal claim to excessive force.” sive 278-95. leg. simply has no factual role of the diminishes the None of this allowed self-defense the district That court beginning has country jury. This from nothing charges is about which the minder history jury. That rich prized the role of the complain. cor- can Whether the defendants judges trial have recognized that has also not, in- That we not decide. rect or need Id. Of responsibilities too. roles right no regarding murder seeds struction course, contends dissent our able brother voluntary plea of a similar self-defense In results. our of these none untoward for error, sym- not manslaughter. Our issue is however, view, lie these behind realities metry. that evidence reflected our insistence are scintilla, it sufficient a be more than be sum, require did not In the evidence that the defen- doubt to create a reasonable instruction. Of proposed self-defense defense. did not act self dants course, may have feared the defendants erupted, but that gunfire once fear their life hold the district We instruction. self-defense does not warrant a give proposed self- obligated was 2489, nied, S.Ct. 96 L.Ed.2d 107 defense on which Self-defense is an affirmative (1987). defendant has If and if the met produc bears the initial burden the defendant Alvarez, production, bears the Government his burden of tion. United States negate denied, self- persuasion and must (11th Cir.), burden of 474 U.S. n. 12 cert. beyond doubt. Id. a defense reasonable and cert. de- 88 L.Ed.2d 235 S.Ct. must Lay There be sufficient evidence from which “Search Warrant! Down!” As Balleste- juror infer, might approached at mini- reasonable ros the doorway, Koresh “made 1) mum, either that some defendants did not kind of smirk” and then closed the identity, agents’ know the ATF see door. Ballesteros testified that “there was (9th Morton, my no States v. 999 F.2d 437-38 doubt mind that [Koresh] knew who 2) Cir.1993), agents’ ATF we were and use of what we were there for.” Oth- force, agents er also perspective they viewed from the of a rea- testified that heard “Police”, scene, Warrant,” shouts of “Search objectively sonable officer at the was agents” they “Federal unreasonable under the exited the cattle circumstances. See trailers approached compound. Span, United States v. Cir.1992), though Even juror reasonable could 122 L.Ed.2d 676 That doubt that the Davidians repeated heard the evidence was not adduced trial. “police” cries of warrant”, and “search juror reasonable could not overlook the visi-

B. ble agents’ indicators of the identity. The point Davidians out that neither the cattle The record belies the defendants’ nor helicopters trailers government had they contention that did not know the identi markings However, on them. most of the ty agents of the ATF compound outside the agents, ATF including the first February 28th. long addition to their approach compound, wore “full raid preparation officers, for the arrival of law gear.” gear military-style This included hel- Koresh and the defendants specific had black, mets and Sig- bullet-resistant vests. knowledge well in advance that the raid of nificantly, the vests large, gold had a ATF February coming. 28th morning On the badge and the words “ATF” and “Police” raid, Koresh told the ATF’s undercov in bright yellow, inscribed inch-high letters agent, Rodriguez, er briefly Roberto who on their fronts. “ATF” and “Police” were morning, visited the Davidians that that “nei also emblazoned on the back of the vests in ther the ATF or get National Guard will ever large, yellow letters visible at a distance. They got me. they’ll get me once and never agents Some wore “baseball” hats with a again.” said, me repeatedly “They’re Koresh large yellow badge on the front. These coming, They’re Robert. coming.” Several markings plainly were visible the broad Davidians overheard Koresh’s remarks. daylight morning that anyone and informed Other impend residents also learned of the who looked that these were federal law en- ing Craddock, ATF raid. for example, forcement garb officials. This was not the of learned that David Jones had heard that unidentified assailants. The notion that this seventy-five agents ATF had arrived at the army some alien and unidentified is be- airport might and that there be a raid. yond pale. the Even if every we assume that not defen- point testimony defendants to the dant had been specific forewarned this Schroeder, Kathryn present Davidian raid, the beyond record demonstrates doubt compound during the the raid who later testi- by that agents the time the arrived at the fied on behalf of the Government. She testi- compound, agents’ defendants knew the iden- fied that she did not see markings the ATF tity as federal law enforcement officers. on agents the uniforms nor did she hear the Special Ballesteros, ATF Agent Roland who purpose identity they announce their or agents was one of the approach first the approached the residence. compound front of the began, after the raid testified that as he ran toward however, the front door agents, Schroeder’s view of the compound, he saw David Koresh was high, obstructed four-and-a-half foot standing in open doorway. the front Bal- wooden fence in front of her first-floor win- yelled loudly Lay contrast, lesteros “Police! down!” dow. In the Davidians in the front and “Search foyer Warrant!” to Koresh several and on the second floor—the location responded by times. Koresh asking gunfire “What’s from which most of the came—had going on?” and again yelled Ballesteros an unobstructed approaching view of the second, of who fired 28; regardless ary that acknowledged that agents. ATF Schroeder indiscriminately the into first, the ATF fired approaching individuals that she assumed of women endangering the lives compound, officials. government compound third, force children; and, that excessive taught that long Indeed, had Koresh ATF of the raid the nature inherent in Fi- was come. “beast” —would Government —the record does in the The evidence tes- conducted. Sehroeder’s importantly, nally and most any these claims. support not suggest that timony does not defendants identity pur- agents’ did not know Davidian, partic- did not who one pose. That battle, under remained who gun in the ipate permit not does The evidence it, and who did duration for the her bed Davidians but that the inference reasonable assumed, says identity she confirm the not Agent morning. that the first shots fired armed knowledge of those nothing about they that the first shots agent testified after even battle. Not in the participating from the com February 28 came heard knew deny that the Davidians Schroeder will testimony of the to the pound. In addition identity. See United agents’ newspa for the local agents, reporters Cir.1984) ATF (9th Jackson, F.2d station who witnessed per and television they testimony that (noting that witnesses’ shots were that the first gunfight testified that warning police “is not no heard fired, compound. themselves”). from identify the officers did in the Viewing record as whole evidence, the defen- response defendants, we light most favorable evidence. pieces three point dants that a reasonable persuaded are not First, statement point to a the Davidians doubt a reasonable could harbor the Texas by Agent Ballesteros to given ATF approaching knew defendants February raid. shortly Rangers after the contrary, the evi- identity. To the agents’ statement, reported that Ballesteros In that cases other record fits well with in the dence he heard first shots that assumed he give self-defense affirming the refusal shooting “dog the ATF team” came from identity instruction. official knowledge of dogs. guard Davidians’ Streit, See, States v. e.g., United however, trial, Ballesteros testified At Cir.) (noting con- that “record assumption. longer his earlier no he believed indicating the men ample evidence tains origi- Rather, first shots testified that the he as FBI clearly themselves identified Moreover, the compound. from nated official of their was aware and that Streit the foundation contradicted evidence trial 962, denied, status”), cert. 506 U.S. “dog assumption. team” his earlier The for Alvarez, (1992); L.Ed.2d it compound, in dogs the never shot “agents (noting that n. 15 F.2d at 844-45 & assigned do. loudly an- converged on the motel who identity”); see presence and nounced their Second, point to the testi- the defendants Ochoa, also United Zimmermann, but his testi- mony of Jack Cir.1976) (5th (rejecting 1282 & nn. first. light on who fired mony sheds no know the that he did not claim defendant’s Zimmermann, attorney one of the where, here, the evi- identity like agents’ Davidians, April on compound visited agents that the in record indicated dence ATF raid. month after more than a identity wore offi- their had announced bul- that he Zimmermann testified observed visible). jackets insignia with cial raid walls of the in front door and let holes had opinion, holes compound. In his C. coming outside shots from by been caused However, ac- Zimmermann compound. the contention also belies The record fired who knowledged he could tell The force. ATF used excessive agents most, testimony First, indicates first. At arguments: three raise defendants exchanged. gunfire was first on Febru- fired the shots that the ATF Third, rely the defendants on a statement conspicuous. have been telling signature Its gave that defendant Castillo to the Texas was absent as demonstrated photographs Rangers compound gunbattle after he exited the on of the at the front of the com- statement, April Rather, In that pound. Ballesteros, Castillo de- who was hit af- scribed the door, scene the front door of the ter Koresh closed the took in cover compound February ATF dog pen 28 as the door, next to the front where he agents remained, unloaded from the pinned down, cattle trailers and for the duration of approached According the residence. gunbattle. words, In other accept Castillo, ajar Koresh held the front door events, Castillo’s unsworn recollection of said, minute, “Wait a juror there’s women and reasonable would have had to believe gun- children here.” Castillo claimed either that Ballesteros shot at Koresh at the immediately erupted through fire the door front door or that agent some other ATF outside, injuring from the Koresh. through fired Ballesteros to the front door. Neither version works. Castillo’s unsworn statement, self-serving, post-arrest This recollection is no more than a scintilla of however, is not sufficient to warrant the re- that, evidence when light viewed in quested It against instruction.2 stands alone testimony and this six-week-long the uniform overwhelming testimony trial, support does not the contested-for in- agents numerous and members of the media ference. and, significantly, against undisputed physical every agent facts. That ATF did, Castillo, if Even it the sole de member the media who testified under capable fendant claiming the inferential disputed facts, oath at trial this version of the statement,3 post-arrest benefit of his would which Castillo post- related an unsworn be not entitled to the self-defense instruction statement, perhaps powerful arrest as a necessary matter of law. It is a precon enough, but we do not rest there. dition to the claim of self-defense that the

Castillo’s unsworn observation cannot be defendants be free from fault in prompting squared undisputed facts. ATF the ATF’s use of force. Wallace v. United agents States, they approached testified that as 466, 472, 162 U.S. 16 S.Ct. 861- residence, they gunfire coming heard (1896); from 40 L.Ed. 1089 see also Melchior compound. Agent the front of the Jago, Cir.1983) Balleste- ros was one of agents (noting the first out of law, that under Ohio “it is a neces stopped cattle sary trailer that front right condition of the to claim self de compound. who followed Bal- fense that the accused killer be without large fault”), lesteros out of the trailer came under gunfire.

caliber and automatic As Balleste- 80 L.Ed.2d 542 cannot “One assigned position ros ran to his provoke at the front fight rely and then on a claim of door, standing he saw foyer Koresh in the provocation self-defense when that results in holding counterattack, one of open. the double front doors previously unless he has According statement, post-arrest to Castillo’s fray withdrawn from the and communicated Koresh States, announced that there were women this withdrawal.” Harris v. United (D.C.Cir.1966) compound; and children in the curiam); after that 364 (per F.2d 701 see announcement, gunfire through Andersen, 508, came also 170 U.S. 18 S.Ct. at and, “believed,” door he Koresh was hit. At (noting 696 that self-defense is unavailable time, Ballesteros was either at or near “brings difficulty where accused on the for the front carrying deceased, door. Ballesteros was purpose killing of or viola shotgun ready loaded with oo-buckshot at the part tion of law on his is the reason of his fired, position. If shotgun attack”); expectation blast would of an Addington v. report post-arrest 2. The written of Castillo's 3. There is no evidence that the other defendants trial; rather, statement was not introduced at claiming present error were at the front door or Santos, Ranger, Gerardo de los a Texas testified knowledge. otherwise shared in Castillo's regarding post-arrest Castillo’s statement. We Ranger testimony, review de los Santos' not the report. written 718 jury convicted had also 187-88, where 184, instruction States, 17 S.Ct. 165 U.S. United robbery attempted of (1897) (same); of the the defendants 289-90, 679

288, 41 L.Ed. explained that the The court States, the deceased. v. United Gourko (1894) (same); themselves arose “need to defend defendants’ 806, 809, 680 38 L.Ed. 14 S.Ct. States, aggression.” 241 Id. own armed out of their United Rowe v. States, curiam) (same). 294 Judge Laney F. Similarly, in v. United (D.C.Cir.1966) (per (D.C.Cir.1923), court affirmed explained 413 Robinson Spottswood (D.C.Cir. Peterson, manslaughter 1222 of defendant F.2d 483 conviction denied, 94 S.Ct. riot but then left 1973), successfully U.S. a race fled cert. who (1973): rioters. The of the haven search 38 L.Ed.2d his safe defendant] explained [the that “when accepted that one cannot long been It has in the gun stepped out by adjusted a self- his and claim of self-defense support a right areaway, every of reason to believe that necessity to kill. The he had generated provoke trouble. granted to his would presence there self-defense homicidal those, difficulty; adjusting it is his revolv- in the his conduct thinkWe from fault free at- slayers areaway incite the fatal such as who into was going denied er tack, quarrel plea or other- encourage any right the fatal to invoke the deprive him of for occasion promote the necessitous Id. at 414. wise self-defense.” the deceased taking life. The fact using Castillo convicted blow, shot or fired the first the first struck during a crime of violence. carrying a firearm gesture not menacing does the first made conspira- was predicate crime of violence if in fact the claim legalize self-defense agents. This included cy murder federal provoker. the actual was claimant weapons pre- military-type stockpiling omitted) (footnotes (emphasis Id. fight the “beast”. More- paring for the added). description over, according own to Castillo’s statement, precisely the line in his he post-arrest events need define of the We upon learning of the conduct from unlawful lawful donned battle dress separating conduct He retrieved impending hold Castillo’s ATF as- provocation to raid. of the line. to the front door. We impermissible side rifle and raced on the sault falls engaging in unlawful that Castillo’s retrieval an Although agree persuaded are we gunbat- officials for a preparation enforcement rifle and his requiring law conduct assault not, itself, conspiracy tle, occurring constitute investigate part does all agents act rea that the neces- unlawful federal provocation, “an affirmative murder affray part of guilty an fore him of as its sonably sarily calculated to found produce 924(c)(1)weapons injurious consequences is the 18 boding or fatal verdict on U.S.C. renounced, which, any nullifies claim of self- charge, deprived aggression unless Castillo conspiracy to mur- Id. at of a right homicidal self-defense.” A member defense. omitted). combat, (footnotes agents, dresses der federal who rifle, proceeds to an assault retrieves persuaded that Castillo are not We government agents to confront front door instruction entitled to self-defense warrant, is not entitled to executing a lawful as he related if even the events occurred self-defense when the the benefit of claim In Unit post-arrest statement. them his with the oc- hoped-for confrontation (2d Thomas, Cir.), ed States curs. — U.S.-, denied, cert. — denied, may claim the benefit (1994), Nor Castillo cert. L.Ed.2d 431 of self-defense. Some “imperfect” version -, 130 L.Ed.2d 614 — played a role U.S.-, a defendant who contend that that led to a (1995), creating the in confrontation and cert. S.Ct. L.Ed.2d — altogeth- escape culpability may not -, homicide U.S. may his crime nevertheless reduce er but Circuit held L.Ed.2d 1095 the Second manslaughter. See murder to W. from convicted of who had been that defendants Scott, A Substantive Criminal & LaFave to self-defense murder were entitled 7.11(a) (1986); Wallace, timony Law see also supported is by physical the facts. 472-73, 16 helicopters unarmed, 862. We need not The and the doors debate, enter this academic however. The closed, on the aircraft were thereby prevent- judge trial it by giving avoided the self- ing agents inside firing from on the com- instruction to charge. defense the murder pound. Thomas acknowledged herself that manslaughter; Castillo was convicted of his she did not if know the bullet that shattered fault, least, failure be free from at the her window came from helicopter. the negates plea of charge self-defense to the Regardless, there was no evidence that manslaughter. any of the either came under defendants short, evidence, In pieces these indiscriminate, unprovoked fire or knew that even when considered in together light taking if, such fire was place. Even for defendants, most favorable to the do not example, the helicopters National Guard did support agents inference that fired fire, the contended-for inference that the four Moreover, the first shot. even evidence that in by acted letting self-defense defendants agents the ATF fired the first shot would not volley loose a upon of fire the ATF agents on have been sufficient itself to warrant the the other large compound side of the un- is agents self-defense instruction. The ATF tenable. policy testified that ATF training direct upon dissent’s focus the testimony of only they ed if agents fire saw an individu Kathryn Marjorie Schroeder and Thomas threatening al agent’s or someone else’s forgets that among neither is those convicted Initiating life. gunfire in those circum voluntary manslaughter of federal stances would not be unreasonable. Al agents. That may Schroeder or Thomas though the defendants contend that the ATF been, charged, have if entitled to the self- policy did not follow its own but fired indis defense instruction does not mean that the criminately into compound, argu four voluntary defendants convicted of man- proves point: ment evidence that slaughter are question so entitled. The ATF fired first without evidence that such whether there is sufficient evidence from fire was indiscriminate or otherwise exces juror which a reasonable could infer that one sive not warrant does a self-defense instruc defendants, of the four not an uncharged tion. present resident in somewhere the com- pound, acted response to excessive force. There are no defenses. vicarious point

The Davidians out that several agents ATF firing through testified that Our refusal to attribute Schroeder’s and walls and into windows in which there was no experiences Thomas’ knowledge to all discernable threat would be unreasonable be compound highlights residents of the danger cause to innocents and the fundamental majority difference between the possibility this, Seizing escalation. and the approach dissent their point Kathryn Davidians Schroeder’s testi agree evidence. We that “each defendant is gunfire mony through came the window entitled to individual consideration of the beginning her room at the of the raid. charges against him and his defenses.” See addition, the Davidians par and Whiteeliff-in post case, think, at 747. It is also we highlight Marjorie ticular Thomas’ video de knowledge of one resident cannot position in gunshot which she that a stated simply imputed be all who are at the shattered the window her loft on the third compound. testify need not Defendants re- floor as she helicopters approach watched the garding knowledge, their own but there must compound beginning at the of the raid. reasonably be sufficient infer testimony support

This will not an infer- responding the defendants of and were knew ence that the ATF Here, used excessive to excessive force. there was none. pilots helicopters force. all testi- Neither Thomas nor Schroeder testified that fied that no shots were they fired from the heli- told defendants about the copters. Significantly, unchallenged they Indeed, gunfire tes- witnessed. Schroeder trial arresters on put their and then room, relating her arrest never her in

remained deci- of their tactical the reasonableness gunfight to others. for during the experience any defendant that sions. is there Nor knowledge in have had that could otherwise not court did that the district conclude We compound, particu- multi-building large,

this jury on self- refusing in to instruct the err gunbattle that the raging during the larly with re- of another and the defense defense provoked. actions own defendants charge. manslaughter voluntary gard to the 3. IV. argue that ex

Finally, the Davidians nature of the inherent in force was cessive A. defendants, According to the ATF the raid. deliberations, agents to the seventy days well-armed

sending over After several all of the acquitting search warrant and execute a its verdict jury Koresh returned arrest mur- housing conspiring and children women for for a residence Davidians on Count jury Av- disagree. convicted We The agents. excessive. federal der Craddock, Branch, Castillo, and Whi- raam, and arrest war of search The execution carrying a using or 3 for on Count tecliff degree of necessarily involves some rants the crime during and relation firearm Graham, force. Believing that the two 1. charged in Count Strait, ATF 1871-72; at 899. The inconsistent, court district the verdicts were had Davidians that the had cause believe attorneys to the bench before summoned the weaponry, includ large supply of a amassed verdict. The Government announcing the ri fully assault automatic ing grenades more sending jury the back suggested knowledge and the this light fles. perceived incon- resolve deliberations to endanger methods would that other concern attorneys opposed sistency. defense The center, ATF of the of residents the lives to ren- suggestion and asked the entry” “dynamic raid was concluded that Ap- guilty not on Count a verdict of der the search and to execute proper method defense, Judge agreeing with the parently sup will not This evidence arrest warrants. anyway [the “I don’t see stated that Smith force. of unreasonable port an inference except their mistake jury] can correct agents pos- evidence that Nor there guilty Three.” finding of not Count firepower un- amount sessed an excessive conference Judge ended the bench Smith All of the circumstances. der jury’s ruling. ver- announcing a without pistols and a limited carried 9 millimeter asked Judge Smith dict was announced. seventy-plus Of the supply ammunition. jury. No anyone poll desired whether raid, only six agents participating Judge dis- Smith attorney responded. rifles AR-15 semiautomatic agents carried jury. charged the pene- shooting rounds could capable of left, Judge an- jury Smith fully had weapons After trate a wall. None written order to issue automatic, nounced his intention fire in two- though some could 3: out, on Count Indeed, setting guilty verdict aside bore events round bursts. much, little, too too not possessed ATF Three will finding as to Count guilty firepower. because, necessity, aside, to be have set guilty not find a jury Defendant firelight could may not Surely, a initiate citizen having found without first of that offense police too ground that the sent solely on the Conspiracy guilty that Defendant him. The many officers to arrest well-armed One, alleged Count offense be entitled suggestion a defendant would of that guilty found all Defendants by pointing to simply claim self-defense So, portion of the verdict twenty offense. to send police’s tactical decision to be seemed There simply cannot stand. lightly- of two heavily-armed officers instead asking to retire reject point no We is untenable. armed ones it, only decision because forcibly reconsider resist individuals to invitation for

721 change they neys made was that inquired publication could have after the of the finding guilty, so the will set going to not Court verdict the Court “what to do” on finding that jury’s aside. Count 3. The became verdict final it open when was announced in court and the later, days the moved to Two Government given opportunity poll defendants the jury’s verdict on 3. The reinstate the Count White, jury. the United 972 States v. argued jury’s that the decision Government (5th 590, Cir.1992), denied, 595 cert. 507 U.S. acquit predicate on the defendants the 1007, 113 1651, S.Ct. 123 272 L.Ed.2d require charged offense in Count 1 did denied, 1007, and cert. 507 U.S. 113 S.Ct. acquittal compound charged in on the offense (1993). L.Ed.2d 272 responded, arguing Count 3. The Davidians jury’s of that verdict would reinstatement Even were we to construe the com jeopardy process violate their double and due at the bench as a ments conference formal rights. rejected Davi- The district setting ruling jury’s aside the verdict on jury’s arguments dians’ and reinstated the 3, judgment Count it would a not be of 9, guilty verdict on Count 3 on March 1994. acquittal. acquitted only “[A] defendant is Judge acknowledged that there was Smith ruling judge, when ‘the of the whatever its inconsistency jury’s necessary no in the ver- label, actually represents [in a resolution dicts on Counts 1 3. See United States favor], not, defendant’s correct or of some or Munoz-Fabela, 908, 896 F.2d 911 all of the factual of the elements offense Cir.) ” (noting “it is that the fact Scott, charged.’ United States v. 437 U.S. offense, conviction, a and not that is needed 82, 97, 2187, 2197, S.Ct. 57 98 L.Ed.2d 65 required predicate” to establish under (1978) (quoting United v. Martin Lin 924(e)), denied, 824, § 111 cert. 498 U.S. Co., 564, 571, Supply en 430 U.S. 97 S.Ct. 76, (1990); 112 S.Ct. L.Ed.2d 49 1349, 1355, (1977)). 51 L.Ed.2d 642 That the (5th Cir.) Ruiz, 905, States v. 986 F.2d 911 district court rendered a decision favor of (holding acquittal predicate on offense prior publication defendants to the 924(c)), does not bar conviction under cert. jury’s verdict does not bar the Government denied, 114 510 U.S. S.Ct. seeking decision, from to overturn that either (1993); L.Ed.2d 107 see also United States at appeal, the district court or on unless the 57, 67-69, S.Ct. Powell rests on a decision determination that (1984). 478-79, appeal, 83 L.Ed.2d 461 On legally evidence Government’s insufficient accept appear most of the Davidians Scott, to sustain conviction. U.S. at Rather, much.4 reurge Davidians their 2197, 2198. jeopardy process due arguments. double Judge The record is clear that Smith Regarding jeopardy, double the Da- at the did not direct comments bench vidians claim that district court’s com sufficiency to the conference ments at the side-bar conference constituted Rather, on 3. he Count shared counsel pre-verdict judgment acquittal Count regarding validity misapprehension defendants, According of a reversal jury verdicts. The record estab inconsistent pre-verdict judgment acquittal constitutes misapprehension, solely it is lishes that jeopardy. disagree. double We moment, in that understandable tension-filled any court did not announce district regarding sufficiency doubt and not ruling formal the side-bar be- conference Judge Smith to of the evidence led set jury’s receiving fore To the verdict. jury’s aside the verdict. contrary, he ended bench conference post-verdict without comment ordered the clerk to district court’s verdict, gives jury’s including jury’s read the verdict decision to set aside the verdict Fifth on Count 3. one of attor- no comfort. The Amend- Even the defense defendants Way separately 4. Avraam and Castillo contend that road v. Brotherhood Co. Maintenance of (5th Cir.1992), Employees, we our should revisit decisions in Munoz-Fabela progeny. We and its sions, are bound those deci- Burlington See Rail- however. Northern L.Ed.2d 173 matter, pushing ap practical to continue government from not bar ment does judgments acquittal. of its it has a final verdict risks work when pealing post-verdict (5th 929, Boyd, F.2d v. v. 566 932 other difficulties. See United States United States (5th Cir.1993) Virgin Straach, 232, Cir.1978); the Islands 987 F.2d 242-43 Government of (3d Christensen, instructing 673 F.2d 718-19 Cir. the (noting judge that “a errs 1982). the court’s own fortiori, jury jury A district if has further the to deliberate White, jury of verdict”); of final verdict reinstatement F.2d at reached a final 972 way, the guilt—or, (same). another district stated 594-95 to its earlier deci court’s decision reverse op- if were Even the Davidians “due” put jeop not twice defendants sion—does tion, deprive not them the district court did ardy. LaSpesa, F.2d States v. 956 conference, it.of At the bench the Govern- Cir.1992). (11th 1027, 1034 jury ment that the be sent recommended reinstating also that claim Davidians deliberating, back continue but defense to process. guilty denied them due the verdict adamantly suggestion. that opposed counsel they argue relied the The Davidians that on Judge’s at the bench conference comments separately contends that the Castillo agreed guilty he the suggesting that jury’s district court’s reinstatement the 3 to be set aside and verdict on Count had deprived on 3 Davi- guilty verdict Count the jury Judge not Smith to instruct the did ask opportunity poll jury. dians of the to the guilty directed of not on to render a verdict 31(d) Rule Rules Federal of Criminal or, alternatively, jury the to order to Count that, provides before Procedure the verdict to resolve the inconsis- resume deliberations recorded, polled the jury “the shall be at essence, In the con- tent verdicts. Davidians request any party upon the own or court’s they “sandbagged” by the tend that right A can waive to motion.” defendant court. district jury poll failing request to the court to Beldin, jury. poll United States v. the gen the Neither Constitution nor (5th Cir.), 469 U.S. principles require of federal criminal law eral court, 105 S.Ct. 83 L.Ed.2d 512 a district when confronted with incon verdicts, jury jury sistent to instruct the to right to The Davidians waived their guilty on all return a verdict not counts. jury polled by failing have the to make a Rivera, 339, 348, In Harris timely request. After the clerk read 465-66, (1981), 70 L.Ed.2d 530 S.Ct. verdict, jury’s Judge Smith asked whether rejected Supreme process chal Court a due anyone jury polled, be desired that the lenge to on an inconsistent a conviction based remarked, seeing response, “I take it no “Inconsistency in a verdict verdict. is not discharged jury. not.” He then That setting it aside.” sufficient reason Id. to misapprehended Davidians the need 345, 102 at 464. Harris estab S.Ct. What poll jury to on Count 3 due their mistak law, lished as a matter constitutional Unit Judge had en belief that Smith set aside Powell, 57, 65, ed States v. U.S. guilty verdict does not excuse their failure 476-77, 83 reaffirm L.Ed.2d Indeed, request poll. even after the as a criminal ed matter federal law. jury’s Government moved to reinstate the short, duty, under the district was no not verdict on Count the Davidians did otherwise, constitutional instruct specifically complain that reinstatement jury guilty not return verdict of jury right their would violate have the contrary, precluded Powell Count 3. To polled. option. Similarly, Finally, separately district court was not Craddock contends obligated jury reinstatement of the to return for further delib district court’s erations, jury’s his Sixth Amendment to resolve inconsistent verdicts. verdict violates mandate, certainly right attorney may points Powell to counsel because his participate in the bench conference accept the district court to inconsistent ver called to its verdict. dicts. 469 at 479. As a after the returned with The Sixth Amendment entitles there be evidence that the defendants or to the assistance of counsel at pose defendant their associates some judi- threat to the stages” all “critical of a criminal proceeding. process cial and that there was no evidence Day, Tucker v. Cir. of the defendants or individuals 1992). pre-verdict bench conference was associated with them was a threat stage trial, jury- not a critical of the Davidians’

however. The district court rendered no de Referring “anony regarding

cision the inconsistent verdicts at mous” misleading. is Anonymity long has contrary, the bench conference. To the the been an important jury sys element of our brief, bench conference was a “informational tem. randomly are Jurors summoned from at meeting” which the district court informal community the large to single decide the ly jury’s advised of counsel verdict and, done, case before them once to “incon prejudicial which no action was taken. Cf. spicuously fade back into community.” 86, People Hardy, 2 Cal.Rptr.2d v. Cal.4th 5 Scarfo, 1015, United States v. 850 F.2d 796, 864, 1023 781, 849, denied, 825 P.2d cert. 506 (3d Cir.), denied, 910, 109 cert. 488 U.S. S.Ct. 987, 498, U.S. 113 121 S.Ct. L.Ed.2d 435 263, (1988); 102 L.Ed.2d 251 see also 3 Wil (1992), denied, 1056, and cert. 113 Blackstone, liam Commentaries *378. 987, (1993); S.Ct. 122 L.Ed.2d 139 Roker v. “Anonymous jury” has come to mean some State, 220, 416 281, (1992). 262 Ga. S.E.2d 283 thing years, different recent signaling the jury’s After announced, verdict was district court’s decision to withhold certain opportunity Craddock’s counsel had the to biographical potential ju information about poll jury, to address the district court parties rors from said, involved. That we regarding verdicts, and, the inconsistent wary should painting be of with too broad a eventually, respond to to the Government’s “Anonymous” juries brush. include those jury’s motion to reinstate the verdict. We about whom more has been concealed than persuaded are not that the district court’s See, e.g., Ross, here. United States v. 33 failure call pre to Craddock’s counsel to the (11th 1507, Cir.1994) F.3d 1519 (withholding verdict bench conference violated Craddock’s names, addresses, places employment, right Sixth Amendment to counsel. spouses’ places names and of employment), short, the district court’s decision to — denied, U.S.-, cert. 115 S.Ct. jury’s guilty reinstate the verdict on Count 3 (1995). 132 jurors 812 L.Ed.2d The here was correct. “anonymous” except were not most literal The sense. district court ordered B. jurors’ names and addresses be withheld sponte court district sua ordered the parties. Otherwise, from the pro- the court anonymous jury. Whiteeliff, use of an along vided the defendants with a wealth of infor- Branch, objected Avraam and venire, mation including about the occupa- order, claiming court’s the use of an employers. tions and names of anonymous jury right violated their to a fair trial impartial jury. before an ap- Fatta The decision to withhold biographi proved anonymous jury. jurors cal about information from the appeal, argues

On parties Whiteeliff prosecution the use in a weighty, criminal is anonymous an hindered validity individual, the selection its turning on the fact- impartial jury jurors of an and led specific to believe circumstances each case. Decid posed that defendants some ing threat of harm to even the withhold name and address of them, thereby undermining presump- “requirefs] a member of the venire a trial tion of Pointing innocence. out that most court appraisal make sensitive upholding anonymous juries eases the use of surrounding climate prediction trial and a organized have involved crime or violent potential security as to the publicity prob or drug syndicates threatening disrupt may lems dining arise proceedings.” judicial process, that, argue Childress, Davidians v. States 702 — justify anonymous jury, (D.C.Cir.1995), denied, an it is -, “crucial” that cert. U.S.

724 anony- an court reasoned district Ac 768 L.Ed.2d 116 S.Ct. because appropriate jury was mous a district review such cordingly, we media at- of world-wide amount “enormous discretion. United abuse decision and the emo- by the case generated tention” 1420, 1426 Krout, F.3d surrounding it. charged atmosphere — tionally -, denied, U.S. Cir.1995), cert. anonymous trials merit an Not all celebrated (1996), and cert. L.Ed.2d 884 publicity militates prospect — jury, but “[t]he — -, 116 S.Ct. denied, U.S. expo- anonymity prevent in favor of L.Ed.2d-(1996). harass- jurors to intimidation sure of “ anonymous Wong, use of United States ment.” ‘[T]he — denied, Cir.1994), U.S. strong (2d cert. there when jury is constitutional (1995), -, L.Ed.2d protection jury needs 115 S.Ct. reason to believe — -, pre and cert. reasonable court takes district and the de 131 L.Ed.2d effects prejudicial minimize cautions to - -, 132 nied, 115 S.Ct. U.S. to ensure that and on the defendant — denied, (1995), cert. 820 L.Ed.2d Id. rights protected.’” are fundamental 190, 127 -, 133 L.Ed.2d 116 S.Ct. U.S. Wong, F.3d v. 40 States (quoting United 1427 236, Vario, 943 F.2d (1995); States United Cir.1994)) (internal (2d quotation 1347, 1376 1036, denied, Cir.1991), (2d U.S. 502 240 cert. omitted). listed some We have marks (1992). It is 882, L.Ed.2d 786 116 112 S.Ct. usual considerations: trial This just attention. the media orga- in (1) involvement the defendants’ court The district deep passions. aroused (2) partic- crime; the defendants’ nized disruptive effects of potentially the feared capacity to group with ipation in general on the trial public attention such (3) past at- defendants’ jurors; harm several jurors particular. That and the pro- judicial interfere with tempts to dur- regarding the case jurors received mail (4) that, if witnesses; potential cess or of concern confirmed the ing trial convicted, will suffer the defendants v. San- United States court. the district Cf. mon- substantial lengthy incarceration Cir.1996) (5th (reject- 562, chez, 565 74 F.3d and, (5) publici- extensive etary penalties; no anonymous jury where “there ing possibility that ty enhance that could jurors in ease would that the indication public and would become jurors’ names publici- subjected iype of extensive be and harass- to intimidation expose them might bring about intimidation ty that ment. harassment”). concerned court was also omitted). (citations might confuse mischief bent on persons Id. jurors high- jurors in a with the Davidian however, suggest, these did not We figures organized involving crime profile trial pain on must established aggregate be some the same same time in occurring at Rather, concerns com- are these of reversal. justified the dis- concerns These courthouse. Krout, cases, where monly such present anonymous to use an court’s decision trict anonymous an upheld use courts have jury- justify may also jury. circumstances Other Indeed, showing de- no while evidence there is Significantly, its use. in the and ad past or intends the names refusing in the fendant has release may jury jury prejudiced suffi- the defen tamper with the be future dresses by jury. anonymous jury, ability impartial it select an an to warrant cient dants’ an v. Ed necessary. the defendants States court furnished United no means (D.C.Cir.), 1080, questions cert. submitted mond, to 80 detailed 1091 swers 52 F.3d — jurors. No -, prospective denied, 133 court to 116 S.Ct. U.S. district — denied, that the information (1995), argues us cert. defendant L.Ed.2d 443 defi questionnaires was 443 from these -, 133 L.Ed.2d obtained 116 S.Ct. U.S. Childress, (uphold at 704 58 F.3d (1995). look to the See courts should cient. District conducted Ross, jury “court anonymous where ing “totality the circumstances.” jurors an gave searching dire and voir n. 26. F.3d questionnaire, scope extensive which because of the anonymous use of an jury. appellants challenge”). do not responded. addition, No one In Judge Smith instructed the presumption emphasize dire, alsoWe that at voir innocence both at voir dire the final proposed ques- asked the defendants’ charge. These cautionary instructions, tions and additional elicited information re- compare which favorably to those used in garding potential juror bias. Wong, See other cases in which the use anonymous of an (upholding anonymous F.3d at 1377 jury has upheld, been ensured that the de- where adequately “extensive” voir dire ex- fendants’ presumption of innocence was not bias). plored prospective juror short, compromised. See United Riggio, contention that anonymous the use of the Cir.1995) 340 & n. 23 jury hindered the ability Davidians’ to select (upholding anonymous use of jury where the impartial jury an sorely underestimates the district court “took steps effective to mini- ability of counsel to use the available “arsenal any prejudicial mize effects associated with of information” prospective juror. about each — anonymous an jury”), cert. denied U.S. Barnes, United States v. 604 F.2d -, 1366, 134 116 S.Ct. (1996); L.Ed.2d 531 (2d Cir.1979), denied, cert. Darden, States v. 70 F.3d 64 L.Ed.2d 260 — (8th Cir.1995) (same), denied, cert. Similarly, anonymous use -, 116 S.Ct. L.Ed.2d 569 jury did not — undermine the pre defendants’ U.S.-, sumption heart, of innocence. At the Davidi (1996); Edmond, 135 L.Ed.2d 1084 argument ans’ speculative rests on a infer 1093; Thomas, at ence that jurors were likely more 1359, (2d Cir.), denied, 1364-65 & n. 1 cert. guilty render a verdict because of belief their 819, 66, 474 U.S. 106 S.Ct. 88 L.Ed.2d 54 that the dangerous. defendants were Such (1985), denied, 819, 474 U.S. speculation Indeed, may unwarranted. it 67, (1985), 88 L.Ed.2d 54 and cert. juror “[a] be that who fears a defendant’s denied, 479 U.S. 107 S.Ct. might retaliation apt be more to return a (1986); Tutino, L.Ed.2d 34 United States v. guilty despite verdict such fears rather than (2d Cir.1989), F.2d cert. de because of Scarfo, them.” 1026. nied, 110 S.Ct. L.Ed.2d 1044 and cert. event, any the district court instructed 107 L.Ed.2d 1044 jury regarding the non-defendant-related anonymity need for and the presumption Moreover, We innocence. conclude that the dire, Judge at voir decision to not dis- explained jurors Smith close the names and anony- his decision to use an addresses jury mous did not public violate the because Davidians’ constitutional attention rights surrounding to fair trial impartial jury. case and before an the fear that the contrary, To would be confused with the in district court’s decision organized reflected being great crime care. case conducted at the same time Judge down the hall. Smith then C.

cautioned: Now, why doing 19, 1993, that’s we’re April this. But I On Rangers the Texas ar- need to make certain that’s not rested blazing not—that’s Castillo after he fled the com- going any negative to have impact your pound. in day, Later gave a Castillo minds Ranger towards Defendants. I no statement have Texas de los Gerardo any Santos, indication prepared whatsoever that report of these who a written Defendants or their families or friends interview. would be any juror threat to selected trial, During the the Government moved case, in this and I want to you fully be sure precluding for an order offering from Castillo understand that. exculpatory into statements

Judge Smith anyone asked whether report. had argued The Government that such “negative feelings” toward the defendants hearsay. were inadmissible statements An- trucks, CAS- seeing the cattle motion, After D. response to

ticipating Castillo’s hallway and into the went out 106 of TILLO argued that Rule also the Government He HOW- told re- Vernon HOWELL. did not saw Evidence Rules the Federal accompanied seen and what he had in- ELL if the Government admission quire their front door. CASTIL- in the HOWELL other, statements inculpatory troduced rifle. That AR-15 carrying an was Gov- LO granted the district report. The clothes wearing regular was HOWELL part. motion ernment’s unarmed. Ranger de called trial, the Government At they that when stated CASTILLO E. por- testify regarding certain los Santos door, opened HOWELL to the front got statement, par- post-arrest of Castillo’s tions out, minute. yelled ‘Wait door and on Feb- concerning the events ticularly those in here.” children women and There’s the ATF raid. day of ruary fired shots were all of sudden Then evi- introduced into report was actual HOW- he believes door where front examination During the direct dence. CASTIL- At this time was shot. ELL Santos, de- the district court los Ranger de round chamber a he stated tried LO fol- attempt to introduce the nied Castillo’s That rifle, jammed. it but in his underlined, exculpatory statements lowing foyer un- Perry was also JONES post- report of the Ranger’s in the contained men that CAS- other and several armed arrest interview: who he can’t remember states TILLO from following ascertained 7. The were, they armed if they nor knowledge reference his Castillo not. raid the initial reference participation failed, his rifle CASTILLO After F. ATF on 02-28-93: hallway and that he down ran states 02-28-93, in the Sunday, up That on picked A. where he into his room back hours, woke morning CASTILLO early handgun. CAS- Beretta own 9mm camouflage style got dressed up, out, continuing down ran then TILLO on the clothes, to work and went outside of the other end hallway the toward the bunk- built over the being slab concrete is into a went room compound, and be a tornado supposed to er that the west to the last on second located outside, going CASTIL- After facing shelter. front of compound side cold, and he it too that was LO stated compound. go bed. go in and to to back decided to enter was about As CASTILLO G. room, locat- into the room he looked said laid that after he stated B. CASTILLO directly Win- and observed across ed say down, that some- heard someone he laying awith the floor dead on ston” happen. CASTILLO thing going to was gunshot to the head. wound time got again. This got up and dressed black the room in a shirt and into black went he dressed H. CASTILLO SUMMERS, McBEAN, commented, “I pants. CASTILLO as identified also room. the ATF.” CASTILLO CASTILLO like HIPSMAN’S looked and shooting, during holding capable put a vest that he took cover was stated firing (8) an also magazines of a shot. CASTILLO eight ammunition never given 02-28- a round. before his room fired AR-15 that he was no one in stated know that he doesn’t 93. claims CASTILLO weapon inside. fired a who remember doesn’t C. CASTILLO while, after a CASTILLO That I. time, looked out he but stated exact hall- running down heard someone facing front area of his room window According to way yelling fire. cease (2) cattle compound saw two like CASTILLO, person sounded compound. driving up trucks BRANCH. Brad being room identified CASTILLO fire, the cease CASTILLO After facing front from J. room the third up picked area and to kitchen went door. entrance an AK-47 rifle that laying was on a personally he observed gre- one or two table. CASTILLO observed Adebowado nades at one time.

“DaBo” in the DAVIES kitchen area armed with an AR-15 rifle. CASTILLO 16. In reference to the ATF undercover looked out facing the kitchen door Agents that moved in across the com- pool and observed wounded ATF pound, they CASTILLO claims that Agent chapel on the roof. He then ob- they they knew because Agents, served four ATF men and were too old to be students drove approach black female to anoth- remove expensive vehicles. agent. er CASTILLO stated that he compound 17. CASTILLO’S duties never aimed agents. his rifle at these help were to construct the tornado shel- ter, play drums, study K. CASTILLO that he stated doesn’t the Bible. anything remember else after this date. review We the district court’s deci CASTILLO did during state that sion for abuse of discretion. United States v. assigned guard standoff he duty at Abroms, Cir.1991), chapel along with “DaBo.” CAS- 112 S.Ct. TILLO’S shift was from 6:00 P.M. (1992). L.Ed.2d provides: Rule 106 midnight 12:00 during days. these CAS- a writing When or recorded statement requested give TILLO was a written part or thereof is by party, introduced statement, but stated he would think party may require adverse the introduction about it. any that time of part other or other writing recorded ought statement which CASTILLO, According 8. giv- he was fairness be contemporane considered 02-28-93, en the prior AR-15 weeks ously it. (3) (4) along with three or four magazine clips Fed.R.Evid. This rule partially codifies ammunition. CASTILLO completeness.” common-law “rule of doesn’t gave remember who him the ri- fle. ^{[*] [*] [*] [*] [*] [*]} Beech Aircraft Its purpose Corp. 439, 451, is “to v. Rainey, 488 U.S. permit 102 L.Ed.2d 445 the contem poraneous introduction of recorded state 10. CASTILLO states that he heard place ments that writings context other Winstom, HIPSMAN, GENT, Peter which, alone, admitted into evidence viewed Perry JONES, Jaydean WENDEL may misleading.” be United States v. Ja had been killed. That WENDEL was mar, 1103, 1108(4th Cir.1977). 561 F.2d asleep in bed when she was shot. That ( The argues Government first that Rule 106 by helicop- GENT had killed been apply does not to post-arrest Castillo’s state- ters and JONES had been in shot Noting ment. that only the rule its terms legs and stomach. That the dead had applies writing statement”, “a to or recorded been taken to the bunker area because points Ranger Government out that de they to started smell bad. That he report los post-arrest Santos’ of Castillo’s participate didn’t in the removal or buri- statement was not into introduced evidence. al of the dead. Rather, Ranger Santos testified based on his 11. CASTILLO states that he never re- post-arrest own recollection of the interview. training by anybody, ceived firearms but advisory The committee’s note to Rule 106 weapons couple did shoot his of times distinguishes writings between and recorded past. in the That weapons he fired his statements, hand, on the one and conversa- couple hay times into bales tions, on the other. See Fed.R.Evid. 106 gym area and assumes the women advisory (noting committee’s note that rule also did this. conversations”). apply “does not to Other 12. states that CASTILLO was a there circuits held that have Rule 106 does not kept

lot of compound ammo apply testimony conversations, and regarding to 728 February on Haddad, 1252, gun battle F.3d 10 v. States

see United later. Castro, several hours declared Cir.1993); v. cease-fire was (7th States United 1258 denied, in the trial (2d Cir.), 484 of discretion find no abuse 571, cert. We F.2d 576 813 complete- regarding 137, judgment 94 calls 844, 108 98 L.Ed.2d court’s 611(a) im that they held Rule and context. though have ness similar conversations obligation an poses Haddad, writings. does for Rule 106 to what the district challenges next Castillo Castro, 1258; at 576. 813 F.2d 10 F.3d 7H: “CAS paragraph exclusion court’s as identified into the room went TILLO deciding that the Assuming but not SUMMERS, McBEAN, HIPSMAN’S statement the recorded government used cover dur he took stated room. CASTILLO under Rule brought it in a manner trial firing a shot. CAS shooting, never ing the that Rule 106, with the Government agree we fired a room no one his also stated TILLO require the admission not 106 does doesn’t he claims that round. CASTILLO post-arrest portions of Castillo’s excluded According weapon fired a inside.” know who have Although circuits different statement. im Castillo, statement corrects “fairness” standard 106’s Rule elaborated day, Li, gun that that he fired pression v. ways, compare United States different Cir.1995) Marin, by his earlier allegedly created impression 329 F.3d require his room and is the he returned common to all F.2d at statement handgun. relevant portion be 9mm Beretta up omitted own picked ment that his place explain, or “necessary qualify, excluded the statement court The district already introduced.” portion inculpatory context the statement self-serving into [sic] “a Pendas-Martinez, contradict, v. explain, qualify or not that does (11th Cir.1988); United States find no abuse statement.” We the rest of the (5th Cir.), cert. Crosby, 713 F.2d of discretion. denied, 104 S.Ct. 464 U.S. that Castillo Ranger Santos testified de los (1983). has failed Castillo L.Ed.2d 696 room, up picked his to his that he said went five, portions excluded how show hall handgun, and ran down the 9mm Beretta explain, qualify, statement post-arrest of his went cold fact that he to another room. portions about into context other place handgun picked up into his room testified. We Ranger de los Santos which We do unqualified unexplained. remains in turn. statement each excluded address exculpatory nature of the ex not doubt the district argues first Castillo statement, require but does cluded paragraph 7G of improperly excluded Rule 106. United States under its admission report: “As CASTIL Ranger Santos’ de los (8th Cir.), Smith, room, he looked said to enter LO was about directly across located into the room L.Ed.2d laying the floor dead Winston’ observed Accord wound to the head.” gunshot awith the district next contests Castillo why Castillo, explains ing this statement paragraph 10: court’s exclusion declared, later, been after the cease-fire had up an AK- picked kitchen and he went to the that that he Win- states heard CASTILLO state court excluded 47. district GENT, HIPSMAN, Perry stom, Peter in the any of issues to ment as irrelevant JONES, been Jaydean had WENDEL and trial. asleep in bed was killed. That WENDEL That had been shot. when she was GENT portion that the excluded we While think had helicopters JONES by it killed relevant, persuaded that are not we was That legs and shot in the stomach. place been necessary qualify, explain, or to was to the bunker been taken dead had regarding statement Castillo’s into context they to bad. started smell de- area because had been the cease-fire his actions after in the removal participate That he didn’t to portion referred The excluded clared. the dead. or burial of moments in the opening events occurred

729 Castillo, According explains Ranger this de testimony statement los Santos’ misled why guard chapel stood in the after required he Feb- the admission of para- ruary 28. The district court excluded that graph 17. hearsay statement “inadmissible that does short, the district court not did qualify explain subject

not matter of refusing abuse its discretion in to admit portion offered Government.” We portions these post-arrest of Castillo’s state find abuse of discretion. no pursuant ment to Rule 106. We acknowl Excluding Castillo’s statement about his edge danger inherent in the selective learning of the deaths of other Davidians did post-arrest admission of statements. United not mislead about Castillo’s admis- Walker, (7th 708, States v. 652 F.2d 713 guard sion he had chapel stood Cir.1981). Neither the Constitution nor Rule February area after 28. The excluded state- 106, however, requires the admission of the learning ment did not tie Castillo’s any portion entire statement once is admit deaths of the other Davidians his deci- ted in prosecution. a criminal See United guard sion to stand after the 28th. The (2d Mulligan, 775, States v. 573 F.2d specify statement does not when Castillo Cir.) (rejecting all-or-nothing approach), cert. Ranger’s learned the deaths. From the denied, U.S. S.Ct. 58 L.Ed.2d report, appears it that Castillo learned of the (1978). We do no violence to criminal began guard duty. deaths he after rights defendants’ by applying constitutional Rule 106 as written requiring that a challenges Castillo next the exclu defendant demonstrate with particularity the paragraph sion of the first sentence of 11: unfairness the selective admission his “CASTILLO states that he never received post-arrest statement. See Charles Alan training by anybody, firearms but did shoot Wright Jr., & Kenneth W. Graham Federal weapons couple his past.” of times in the Practice and Procedure: Evidence 5077 at Castillo, According to this statement was er This, 370. Castillo failed to do. excluded, roneously testimony regard while ing paragraph the remainder of and all

paragraph 12 V. was admitted. In its amended order, the district court ruled that the state Each Davidian contests the suffi ment hearsay was excludable as inadmissible ciency support of the evidence to his convic qualify or explain does the remain tion on the counts. various We review of paragraph der evidence in light the record in the most We do not reach merits of the district favorable the Government and all draw trial, ruling. Ranger court’s At los de Santos jury’s reasonable inferences in favor of the testify statement, did not about Castillo’s Ruggiero, verdict. United States 56 F.3d — paragraph (5th Cir.), denied, contained had he fired cert. U.S. weapons only couple -, into times bales 133 L.Ed.2d 317 — hay. Therefore, denied, prejudicial -, there was no and cert. 116 S.Ct. (1995). omission Rule 106 to correct. 133 L.Ed.2d 413 Our review limited to the determination of whether a Finally, challenges Castillo the ex reasonable trier of fact could find the evi paragraph clusion of 17: “CASTILLO’S dence guilt established the defendant’s be compound duties at the help con yond a reasonable doubt. United States v. shelter, drums, play struct the tornado Jaramillo, Cir.), 922-23 study Castillo, According Bible.” — U.S.-, statement impression counters the that Cas 131 L.Ed.2d 1013 We address the part tillo conspiracy of a murder convictions on each count in turn. agents. federal The district court excluded the statement as irrelevant and as inadmissi A hearsay clarify ble that explain does not any agree Avraam, Branch, other statement. We on both The convicted Cas- tillo, explain Castillo fails to aiding counts. how and Whitecliff of the abetting Rogans during gunbattle. When the agents in safe manslaughter of federal voluntary agents, at the had shot Signifi- whether he §§ 1112. asked 18 U.S.C. violation Avraam he had not. responded that suffi- Avraam not contest the do cantly, the Davidians ‘Well, added, I’m however, and establishing laughed, that the then ciency the evidence addition, told Avraam In by gunfire com- killed bad shot.” agents were ATF four Rather, gun folly the had a automatic compound. Rogans that he the ing from inside sufficiency compound. of the was at the challenge the while he Davidians and abetted aided of them that each had that he to Schroeder admitted Avraam of the defen- gravamen killing. that during gunbattle, weapon the fired Government that the argument dants’ Ro- tongue-and-cheek statement Avraam’s in the they participated prove that failed to lent credence “good shot” gans that he was who killed the those assisted gunbattle or Moreover, ATF testimony. numerous to this February 28. We dis- agents on ATF four they .50 caliber agents that heard testified agree. raid. There were during the gunfire prove must that by Government Davidians. owned caliber rifles two .50 1) the crimi with associated defendant two testimony each linked one Schroeder’s venture, 2) venture, in the participated evidence, nal a rea- this Based on to Avraam. 3) the venture to make action sought aided find that Avraam could sonable States, Nye Nissen United & voluntary manslaughter succeed. and abetted 766, 770, 613, 619, 93 L.Ed. agents. federal Menesses, (1949); States v. Brad Branch Cir.1992). (5th aid and “To F.2d pres Davidians who All three perpetrator to assist simply means abet February compound on ent at the requisite crimi sharing the of a crime while par Branch trial witnessed who testified at Jaramillo, 42 F.3d at 923. We nal intent.” morning. gunbattle ticipating cautioned, however, pres “mere have room Hollingsworth was near her Victorine insufficient to alone are ence and association compound when second floor on the abetting.” aiding and a conviction sustain gunbattle, Early into the gunfire erupted. Martiarena, United States armed on the second floor she saw Branch Cir.1992). 366-67 Hollingsworth, he According to rifle. with a room, At firing in each. Renos Avraam ran from room Branch, inwas who point, she overheard one regarding witnesses testified Two compound facing the front of the a room Kathryn February 28. activity on Avraam’s exclaim, were, “He ATF where Davidian, Schroeder, on behalf testified got I nearly got me one.” plea bargain. part of a the Government raid, spoke ATF she after the days Several Hollings- Marjorie Thomas confirmed regarding his on Febru actions with Avraam Branch with a Thomas saw account. worth’s weapon he had fired his ary said that 28. He moving room to floor from gun on the second that when also morning. She testified guarded gunbattle, Thomas room. After the to the Davidians ammunition she distributed Branch, Whitecliff, and an- chapel with raid, told Avraam standing guard after point, At one she overheard other Davidian. rifle with ammu a .50 caliber her that had he some- others that he shot Branch tell the had the rear of the gymnasium near nition in the raid. during the ATF on the one outside rifle, but did not see compound. She Schroeder, addition, remained Kathryn who had that Avraam confirmed another Davidian front of first floor room on the in her gun. gunbattle, testified during the compound running “yelling, Branch she heard Bradley Rogans, Avraam’s cellmate Based on hallways, very hyper.” arrest, around County jail testified Coryell after his evidence, find jury could a reasonable regarding the Avraam spoke that he gun- actively participated February 28. that Branch Carmel on events at Mount February behind a battle Rogans that he had hid Avraam told Jaime Castillo According Griffin, lo. Castillo watched agents briefly the and weapon aimed his incriminating The most evidence they her while rescuing Agent were King. against Castillo came from Castillo himself. According statement, post-arrest to his own Finally, during subsequent the stand-off very early Castillo morning awoke in the on FBI, with the Schroeder asked Castillo about February got 28. He in camouflage dressed weapon his need ammunition. Cas- clothing begin and went outside to working tillo her AK-47, informed that he had an underground on the bunker the Davidians along with ammunition for it. Schroeder constructing. morning cold air ammunition, offered more but Castillo re- prompted him to return to bed. Sometime fused, stating, ‘Well, more, I don’t want I later, say something he heard someone was don’t want more than got.” what I’ve going happen morning. that gotHe out of evidence, Based on this a reasonable but, time, again bed got this dressed in black could find that actively Castillo participated clothing. put holding eight He on a vest gunbattle in the February on 28. His actions magazines of ammunition and retrieved his were not passive of a those witness rath- but AR-15 Looking rifle. out assault window er evince an firefight. active role of his room on compound, the front of the he reasonably could infer the intent re- saw two cattle trailers approaching the com pel agents deadly ATF with force from pound. joined He Koresh and others at the dress, his attempt his to chamber a round at gunfire front door. erupted After through door, the front flight his immediate to his door, attempted he to chamber a round room to weapon. Moreover, retrieve another rifle, jammed. in his but it He returned to despite the absence of direct evidence that he room, his retrieved a 9mm pistol Beretta he weapon fired morning, the jury could purchased himself, had and went down the reasonably find that he did shoot at the ATF hall to another room on facing the first floor agents. agents Numerous ATF testified re- compound. front garding large gunfire volume of coming According statement, to his after from the compound, rooms the front of the declared, cease-fire was Castillo went to the and Castillo admitted he was in a room kitchen area toward the rear of the com- front, at the gun, armed with a during the pound. grabbed He lying AK-47 on the gunbattle. proceeded kitchen table to the rear door Kevin Whitecliff compound. He observed two wounded agents, ATF one on the roof and one on the Kathryn that, Schroeder testified after the ground. addition, In agents he saw four gunbattle, Whitecliff told her that he had searching agents. for the wounded helicopters fired at the approaching from the addition, north. guard Whitecliff stood Other witnesses supple- corroborated and chapel Marjorie Thomas after the mented Castillo’s account of his actions dur- gunbattle. time, During that ing gunbattle. over- Marjorie Thomas Thomas wit- heard Whitecliff claim that he had nessed shot some- gun Castillo with a on the second compound during one outside the compound floor of the ATF during gunfight. evidence, Thomas, raid. on According Based he reasonable looked around jury could actively conclude that Kathryn that, then left. Whitecliff Schroeder testified participated gunbattle February on gunbattle, after Castillo informed her Indeed, appeal, Whitecliff he had been at concedes that the front door with shooting he helicopters towards Koresh had but returned to his room. the north. Special Agent Griffin, Bernadette one of agents

the four sent to agent Finally, rescue ATF response to this show- King at compound, the rear of the ing confirmed participation gunbattle, their in the presence at Castillo’s the rear the com- argue defendants the Government did pound during the cease-fire. prove actually She saw an who killed the at the compound individual rear door of the that each one them assisted those individu- gun, with a who she later group identified Castil- als or small According of individuals. 732 convictions Davidians’ the To sustain in the Davidians, participation mere to the 924(c)(1), § the Government 18 U.S.C. under them to convict insufficient is

gunbattle itself car or defendant “used prove that the must voluntary man- abetting the aiding and of carrying the use or that firearm” and ried a during the killed agents slaughter federal of of to” a “crime relation “during and in was line, empha- Along Whitecliff gunbattle. States, U.S. 508 v. United Smith violence.” helicopters to the he shot toward that sizes 2053, 2050, 124 227-28, 223, 113 S.Ct. four compound, while north of Harris, (1993); v. States 138 United L.Ed.2d the other killed on side agents were ATF denied, (5th Cir.), 1275, cert. 1279 25 F.3d persuaded. are not compound. We - 458, -, 130 115 S.Ct. U.S. aiding and for prosecution (1994). In a contend The Davidians 366 L.Ed.2d not crime, need the Government three abetting a evidence is insufficient that there group turn, of individ person or identify specific a in each element address We elements. v. Cam States principal. United uals as the last. beginning with Cir.1982); (1st 1006, Hen 1013 pa, F.2d 679 (5th 971, States, 975 327 F.2d v. United 1. drix Cir.1964). contrary, the Government To the crime of violence predicate The offense that substantive show “the need conspiracy to in the indictment charged and that the by someone committed had been of 18 in agents violation federal murder Campa, him.” aided abetted defendant 1. The charged in Count § 1117 as U.S.C. v. 1013; States see also United F.2d 679 elements: conspiracy contains three crime Cir.1994) (“All (10th 99, Yost, 24 F.3d 104 pursue an 1) agreed people or more two based on 18 a conviction required that is 2) defen individual objective; unlawful defendant] finding [the § 2 is a that U.S.C. conspira join voluntarily agreed to dant crime.”) committing the in aided someone 3) more of the members one or cy; and original). The Government (emphasis overt act performed an conspiracy prove fired who to be able claimed never conspiracy. objectives of the further ATF the four that killed rounds specific (5th 317, Baker, F.3d 325 v. 61 States United identify the actual inability to agents. The Cir.1995). conspiracy object of the When the however, negate the evi does not gunmen, murder, second-degree Government compound in the proving someone dence individual additionally prove that must agents. killed afore kill with malice conspired to defendant Chagra, 807 F.2d States thought. United Moreover, defendant need denied, (5th Cir.1986), 401, cert. 484 398, 403 weapon abet murder a to aid and fire (1987); 106, 832, 108 98 L.Ed.2d v. Villarre manslaughter. States United Cf. Harrelson, 754 F.2d Cir.) (5th (holding that al, denied, 1172-73, reh’g murder), abetted subduing aided and victim denied, Cir.), 106 S.Ct. 474 U.S. cert. denied, 113 S.Ct. 506 U.S. and cert. L.Ed.2d 241 (1992). difficulty in no findWe L.Ed.2d 267 88 L.Ed.2d gun- actively participating holding that gunman kills federal battle which that, if a con- argue even Davidians The killing. can aid and abet officer existed, federal spiracy to murder Count affirm the convictions We showing that is insufficient there Ac- joined voluntarily conspiracy. each Davidians, they each cording B. inner circle from Koresh’s excluded Branch, Avraam, Cas- jury convicted plans. We nothing murderous of his knew Craddock, using or tillo, and Whitecliff persuaded. are not during and in relation firearm carrying a acquitted the defen That the of violence crime the commission conspiracy to crime of 924(c)(1). predicate dants 18 U.S.C. violation of charged in Count agents as federal murder on this acquitted Fatta count. negate jury’s guilty did not verdict on The defendants’ conduct on day more offense, Count 3. “[I]t is the fact of the than suffices to demonstrate both the exis- conviction, and not a that is need to establish conspiracy tence of the and their member- Munoz-Fabela, required predicate.” 896 ship in it. Ruiz, (hold 910-11; 986 F.2d at 911 Shortly raid, before the ATF undercover ing acquittal predicate offense does agent Rodriguez Roberto visited the com- 924(c)). not bar conviction under 18 U.S.C. pound spoke and During Koresh. their replete The record is with evidence conversation, Koresh was informed that he conspiracy of a agents to murder federal and phone had a call left and the room. When each individual defendant’s membership in returned, Koresh “literally he was shaking.” studies,” conspiracy. In “Bible Koresh Rodriguez, “Robert, Koresh told neither the taught that there would be a battle between ATF or National Guard get will ever me. the “beast” Davidians. There was They got they’ll me once and get never me no doubt that the “beast” was the ATF and again.” Koresh looked out the front win- Indeed, FBI. residents watched a film enti dows repeatedly exclaimed, “They’re “Breaking tled the Law in the Name of the coming, Robert. The time has come.” Story,” Law: The ATF por an unfavorable left, Rodriguez After the evidence shows trayal of the ATF. Koresh also told the Koresh the other began Davidians strong prevent women become so as to preparing for the ATF raid. dur- Sometime Army raping from them. ing morning, Kathryn both Sehroeder the record also shows how Hollingsworth and Victorine learned that all expected Koresh respond the residents to if go women were to chapel. When approached compound. the “beast” Ko- there, they got they noticed that no men resh instructed the Davidians to kill the “en- present. Koresh later came into the emy”, an instruction driven home Ko- chapel and told get the women to back to you resh’s that “if admonition can’t kill for their rooms and According “watch”. God, you Indeed, can’t die for God.” final Sehroeder, Koresh was wearing mag- a black salvation and deliverance to Heaven —or carrying azine vest and an AK-47. Other “translation” as the Davidians it— called men compound at the were also dressed in through could occur either immediate deliv- clothing black weapons, and carried and Ka- ery through to Heaven or death in battle. thryn Sehroeder testified that the Davidians Koresh and began the Davidians preparing prior loaded ammunition to the raid. final battle. The Davidians fortified Contrary to the arguments, defendants’ compound, building underground shel- supports jute’s the evidence conclusion Koresh, ter. along with Paul Fatta and Mike that each conspiracy, was a member of this Sehroeder, purchased large amounts of that each was a Message.” “Member of the weapons and incorpo- ammunition. Koresh Koresh’s “Bible studies” integral were an rated apocalyptic message. firearms into his part conspiracy. Kathryn As both Weapons passed were often out at Bible Sehroeder and Hollingsworth Victorine testi- studies, while Koresh instructed the Davidi- fied, all expected adult Davidians were ans their use and maintenance. Residents usually attend these studies and did. Holl- practiced shooting, at aiming times a tar- ingsworth usually confirmed that Craddock get head. The sewed women vests and black attended Koresh’s studies. pants capable holding multiple ammunition magazines for all of the men. At Passover The actions of each defendant on the Spring Koresh announced that it morning ATF sig- raid and thereafter Passover, would be the last that the end was membership nal in this conspiracy. To re- short, coming. there was a climate of peat: actively Each defendant participated in aggression both fear and at Mount Carmel gunbattle. Branch roamed the second prior February floor, firing in each room. Whitecliff shot at least,

At conspiracy to murder the helicopters. attempted Castillo to shoot agents federal February matured on Koresh; 28. while he at the front door with FN-FAL chapel with an guard ATF four over the wateh kept armed he later guard stood M-1A, Castillo Although respectively. no King. rescuing Agent first floor. on the in his room an AK-47 during gunbattle, with fire one saw Avraam AR-15, kept Craddock, had an that he who afterwards told Schroeder Avraam Kathryn bedroom vigil in Schroeder’s armed so. had done above guard Avraam stood first floor. on the Craddock, shows also The evidence As rifle. a .50 caliber chapel with gym abetting the aiding and acquitted who was Thomas, Marjorie Kathryn Schroeder agents, of federal voluntary manslaughter testified, the guard, also stood of whom both murder conspiracy to of the was a member open if the to fire instructed Davidians were fleeing the after April On agents. the compound. to the attempted enter FBI post- gave a Craddock compound, blazing generator an electrical maintained Craddock day, and, testified the next arrest statement working in order. telephone kept the line and post-arrest jury. Craddock’s grand a before testimony his belie grand statement free to leave were compound residents claim of innocence. The Davidians any time. at Mount Carmel remain, against the guard to stand to chose almost Carmel at Mount arrived Craddock to deadly force FBI, and, necessary, use to if received raid. He ATF the year full before repel the FBI. and, the weeks before training, two firearms and an AR- pistol raid, he was issued ATF argue that evidence The defendants February his room. kept On he in which present at Mount they that shows ATF impending the learned Craddock of the resi with some associated Carmel and meeting with Ko- Rodriguez He saw raid. Espinoza- United States there. See dents say, “They’re Koresh and overheard Cir.1988) resh Seanez, 538-89 FBI or BATF or the coming. Whether conspiracy conviction based (reversing coming.” Hipsman whatever, Peter they are pres conspirators and with mere association raid later of an ATF the likelihood confirmed climate). juror a reasonable in But ence foul David telling that Craddock morning, that picture, not entirely different see could an compound and the had been outside Jones wrong caught “in the individuals innocent agents ATF approximately that had heard time,” wrong partici active but place, at the Tellingly, airport. Waco at the had arrived willing to defend camp, in armed pants raid, ATF impending learning of the after deadly with and to die camp force with retrieved his room and to returned Craddock was salvation the firm belief eternal clothing in got dressed black He his AR-15. reward. their divine Later, he ammunition vest. his and donned argues that was separately there Craddock get to ammunition the kitchen went to to conspired he evidence that insufficient When he loaded. handgun, which 9mm afore- agents malice with murder federal things, Craddock why these he did asked empha- particular, Craddock thought. expected think I was responded, “I did what day of the a shot the not fire that he did sizes self- spite of Craddock’s Even of me.” therefore, and, cannot have had ATF raid at the that he did shoot serving claim accepting this Even state. requisite mental morning, a reasonable ATF assertion, disagree we self-serving factual a member find he could draws legal Craddock conclusion with the agents. federal conspiracy murder from it. have found jury could also A reasonable “an aforethought means Malice long after conspiracy continued that this killing, wilfully take intent, cease-fire, at time of After the February 28 raid. an intent wilful being, human life of com- plan to developed a exit Davidians (cid:127) disregard callous and ly to act in wanton in the agents, die pound, fire life; ‘malice but to human consequences did the Davidians Although the ensuing battle. necessarily imply aforethought’ does not remaining resi- that plan, not execute will, hatred individual spite or towards FBI for ill engaged a standoff dents Harrelson, n. 5 F.2d at 189 stood killed.” fifty days. Branch Whitecliff over Blackmar, 924(c)(1)

(quoting 2 E. Devitt & C. Federal reached conduct that the “use” (1977)). Jury Practice and prong at-, Instructions did not. Id. 116 S.Ct. at 509. The evidence shows that Craddock attended Supreme Like the Bailey, Court we studies, preached Bible which Koresh need not address whether the evidence suf- enemy; the need to kill the that Craddock fices to establish that the defendants “car- participated received several firearms ried” a firearm during conspiracy.- that, training; upon learning firearms evidence is overwhelming that each of the impending February ATF raid on he five defendants “used” a firearm as the Su- changed clothing weapons; and retrieved his preme Court has defined the term. The that, raid, after the he chose to remain in evidence demonstrates that Branch and Whi- stand-off, compound during despite tecliff weapons fired their By on the 28th. possibility of further bloodshed. Cf. admission, his own attempted Castillo Chagra, (rejecting non-gun- 807 F.2d at 404 and, chamber a round at the front door after insufficiency man’s challenge cease-fire, weapon brandished a while the murder). conspiracy conviction for ATF injured rescued one of agents. its Sim- evidence, Based on this a reasonable ilarly, according statements, to his own Crad- conspiracy could find that a to murder feder- rifle, dock retrieved his AR-15 assault loaded agents al existed and that each of the five ammunition handgun, into his and awaited voluntarily joined defendants conspiracy that instructions. Finally, Avraam admitted to requisite with the mental state. that he had weapon fired a Schroeder February 28. 2. There was also evidence that after the persuaded We are also that sufficient evi- raid, ATF all of the defendants stood watch supports using dence the conviction for- or compound the with loaded firearms. In carrying during conspiracy. a firearm the In particular, Special Agent FBI Toulouse wit- — States, Bailey U.S.-,-, v. United nessed a .50 caliber protruding rifle from a 501, 509, 133 L.Ed.2d 472 compound hole wall of the near the rear. 924(e)(1) Supreme § the Court reversed the reportedly Avraam guard stood in that area gun defendants, convictions of two one of with one of the Davidians’ two .50 caliber kept whom had an undisclosed firearm in a evidence, rifles. Based on this a reasonable footlocker in a bedroom closet and the other jury could find that the defendants used a of whom had concealed an undisclosed fire- during conspiracy. firearm the arm in the trunk of his car. The Court explained required that “use” more than 3. possession” “mere of a firearm the defen- at-, Rather, dant. Id. Lastly, S.Ct. at 506. the defendants claim that the the Government must employ- show “active evidence is insufficient to show that each ment” of the firearm. Id. “during used a firearm and in relation” to the conspiracy to agents. murder federal In employment” require The “active particular, argues Branch that the evidence overly taxing ment is not an one. The Court only indicates that he used his firearm in gave examples several of conduct constitut disagree. self-defense. We ing employment,” them, among “active “brandishing, displaying, bartering, striking question There is no that each defendant with, obviously, firing and most attempt or “dining” conspiracy. used his firearm the ing fire, at-, Smith, to firearm.” Id. 116 S.Ct. See at S.Ct. at 2058. at storing 508. While the Court any question held that a Nor is there that each used his nearby weapon potential concealed for conspiracy. use firearm “in relation” to the Smith, employment,” did not constitute “active Supreme explained it the Court that 924(c)(1)’s § noted that “an offender’s requirement reference to a fire- that the firearm be possession satisfy arm in his could used “in predicate relation to” the offense 924(c)(1).” Finally, § Id. the Court held out ensures that the firearm must have “some possibility “carry” prong that the purpose respect predi- or effect to” the conspira more of members of the offense, “facilitate or have the one or that it

cate act facilitating” cy performed Id. at an overt to further that crime. potential (alterations omitted). Baker, objectives conspiracy. 61 F.3d at 2059 S.Ct. Similarly, is vol presence or whether crime negatively, the firearm’s Stated untary possession ma- manslaughter of accident “cannot be result involvement chineguns, prove Id. Government must or coincidence.” 1) with the crimi each defendant associated during and after The use of firearms 2) venture, venture, participated nal accidental; part February was not it 3) sought by to venture action make the conspiracy murder feder- parcel sen, Nye & Nis U.S. at succeed. 924(c)(1) con- agents. affirmed al We have 770; Menesses, 962 F.2d at 427. relationship victions where the between been predicate offense has firearm evi argues Fatta there is no than

far more attenuated here. See showing voluntarily that he knew of or Wilson, dence Cir.1989). join agreed conspiracy manufacture maehineguns. According possess to Fat- Finally, argument Whitecliffs ta, lawfully the evidence shows that he not show that he used his the evidence does firearms, ammunition, purchased and acces conspir in relation during firearm Davidians, emphasizes He sories. other acy to the federal “at murder he, purchased parts and tools misapprehends scope of the front door” converting fully weapons semiautomatic conspiracy. conspiracy murder feder Finally, argues that automatic ones. Fatta agents al not end with the death of did there is no evidence that he assisted Koresh Rather, February there four 28. maehineguns. possessing beginning prior to Febru was evidence that continuing ary 28 and for almost two months jury’s supports The at trial evidence raid, conspired the ATF the defendants after began verdict on both counts. After Koresh agent attempted kill who to to federal upcoming preaching about the confrontation approach compound. Firing at the Na “beast”, traveling Fatta began Paul with helicopters approaching the tional Guard gun purchasing weapons. and to shows standing guard during compound and pur- Firearm records indicated that Fatta ensuing contribu stand-off was Whitecliffs large of chased a number firearms and relat- conspiracy. to that tion years prior accessories in the two to the ed sum, among pur- persuaded In are that the evi- ATF raid. Included Fatta’s we supports the convictions for chases were AK-47 and .308 dence Davidians’ semiautomatic 924(c)(1). rifles, § violating magazines, affirm convic- FN-FAL We caliber assault of tions on Count 3. and cases ammunition. In December 1991, Fatta Indiana traveled Koresh to C. guns. purchase trip, On that and Koresh $25,000 together bought approximately Fatta conspiring The convicted Fatta of worth of firearms. unlawfully possess manufacture and machine- guns aiding abetting of and the unlawful The evidence also demonstrates that maehineguns, possession of in violation both engaged Davidians were conversion 922(o). § both of 18 U.S.C. We address fully semiautomatic firearms automatic jointly. counts Kathryn firearms. Schroeder testified object conspiracy fully guns com- automatic were made at the

Whether pound is murder unlawful and that the about it. or the manufacture residents knew Schroeder, possession maehineguns, According to the Government Koresh announced 1) prove study going must three two a Bible that “we’re to take a the same elements: agreed pursue goes into a people gun or more the unlaw rat-tat-tat make it 2) objective; Indeed, goes ful vol numer- gun the individual defendant rata-tat-tat.” 3) untarily agreed join fully weapons conspiracy; ous automatic were recovered April from the ruins of Mount Carmel after may prove Government Fatta’s knowledge through either direct or circum Staples States, stantial evidence. v. United suppliers Invoices from firearm confirmed 600,-n. 11, 114 S.Ct. testimony. Schroeder’s The Davidians had (1994) n. 128 L.Ed.2d (noting parts ordered and tools used in manufactur- knowledge machinegun’s status as such ing fully weapons. automatic These items “can be inferred from circumstantial evi shipped Mag Bag, garage were to the dence”). There was abundant circumstantial compound located short distance from the knowledge Fatta’s that machine- by buying used for Davidians guns being were pos manufactured and selling of particular, firearms. conversion sessed Koresh and the other kits, Davidians. along with videotapes books and on how See United Tylkowski States v. weapons fully to convert semiautomatic into (7th Cir.1993). machineguns, shipped automatic Mag Bag. Nor must prove Government The evidence left no doubt as to Fatta’s Fatta illegal. knew his conduct to be Cheek involvement in the Davidians’ automatic States, 192, 198-99, v. United weapons operations. fully Two of the auto- 604, 609, (1991); 112 L.Ed.2d 617 Sta- weapons matic recovered from the ruins of —ples, U.S. at-n. 114 S.Ct. at 1805 purchased by Mount Carmel been Fatta had J., (Ginsburg, n. 3 concurring judg- in the weapons semiautomatic and later convert- ment). Fatta’s reliance on is mis- Ratzlaf personal ed. Fatta’s checks were discovered placed. prosecution was a under 31 Ratzlaf in the machine room where the Davidians 5322(a) structuring U.S.C. a financial machineguns manufactured and silencers. purpose transaction for the evading cur- Moreover, the evidence demonstrated Fat- rency reporting requirements. There, Mag Bag. ta’s involvement with the Fatta Supreme Congress Court found that in that procured a Texas Tax Permit in Sales/Use particular depart statute had chosen to from February Mag Bag. appli- 1992 for the general ignorance rule that law permit cation for the listed Fatta as the charge. at-, no defense to a criminal Id. and, Mag Bag, contrary owner of the to 114 S.Ct. at 663. argument Fatta offers no suggestion Mag Fatta’s Bag was text, statutory based on legislative history, or simply an repair shop, automotive it indicat- suggesting Congress case law has acted “gun ed that and firearm accessories” were 922(o). § in a similar regard fashion with to “primary product” Mag Bag. sold Farrell, Nor could he. See United States v. purchase Numerous firearm invoices and re- (8th Cir.1995) 893 (holding that lated documentation also confirmed Fatta’s 922(o) § require knowledge does not of law fact, Mag Bag. association with the In — denied, it), or intent to violate cert. U.S. among the found in items a search of the -, (1996). 116 S.Ct. 134 L.Ed.2d 228

Mag Bag phone was a bill addressed to the Mag Bag listing Fatta as the account name. sum, In jury a reasonable could find that evidence, Based on a reasonable willingly joined conspiracy Fatta a to manu- could find voluntarily joined that Fatta possess machineguns. facture and In addi- conspiracy possess to manufacture and ma- tion, could find that he aided and chineguns. possessing machineguns. abetted Koresh response, that, so,

In argues Fatta even knowledge there is no direct VI. weapons that the machineguns. Even brazenly, more Avraam, Fatta claims that the Govern- The district court sentenced prove Branch, Castillo, ment must that he knew his conduct and Whitecliff to the statu- illegal, relying tory 10-years on imprisonment maximum of on Ratzlaf States, 30-years imprisonment Count and to (1994). disagree L.Ed.2d 615 We with both Count such to terms be served consecu- arguments. tively; 10-years imprisonment Craddock to a “firearm”. each used had found 10-years imprisonment on to 3 and on Count Davidians, determina- According to the served consecu- to be terms such Count one of used the defendant tion whether prison sen- to consecutive

tively; and Fatta enumerated firearms aggravating years 9 and 10 years for Count of 5 tences 924(c)(1) jury, not the court § lies with addition, the district In for Count 10. Consequently, the Davidians sentencing. pay to restitu- Davidians all of the ordered on that count their sentence to vacate ask us million. of over tion $1.1 impose only to instructions and remand with challenge the defendants’ address firstWe Count 3. 6-year prison sentence on a using for or on Count their sentences validity district court’s a during and relation carrying firearm a 924(c)(l)’s § ma- upon whether action to the de- turns then turn We crime of violence. separate, inde chinegun provision creates sentencing We claims. individual fendants’ or is a sentence-enhance offense pendent or- with the restitution our conclude review first question is one of This provision. ment der. and the Da- The United impression. law, waging a war rely on the case vidians A. principles. begin with first dicta. We 924(e)(1) § defines both 18 U.S.C. 924(c)(1)’s provi machinegun Whether pro- It applicable sentence. crime and the independent federal offense sion “creates vides: provi- merely a sentence-enhancement or is Whoever, during and in relation legislative intent.” Unit is a matter sion drug trafficking crime of violence crime Jackson, 891 F.2d ed States firearm, shall, in ..., uses or carries Cir.1989) curiam), (per provided for punishment addition L.Ed.2d trafficking drug of violence or crime such cases, four suggested that we have prior for crime, imprisonment be sentenced 1) illuminating: the stat- whether factors are a short- if firearm is years, and five upon punishment conviction predicates ute rifle, shotgun, or barreled short-barreled 2) section; whether the stat- under another impris- weapon, to semiautomatic assault under an- multiplies penalty received ute years, and if the firearm for ten onment 3) section; pro- the statute other whether device, or is machinegun, or a destructive hearing; sentencing for the guidelines vides firearm a firearm silencer or equipped with 4) is titled the statute whether thirty years. muffler, imprisonment factors, provision. Id. These sentencing however, complement do substitute defendants had of the five Finding that each statutory interpre- traditional tools of for our criminally responsible for some- used or were legisla- tation, namely, text and during statute’s machinegun a one who had used Davis, 801 history. See United Av- tive States sentenced district court conspiracy, the (5th Cir.1986) 754, (enumerating 755 Branch, Castillo, to 30- F.2d raam, and Whitecliff that statute’s text explaining four but Although district factors years imprisonment. intent”). congressional guide to subject “primary is was also found that court Craddock sentence, departed it down- 30-year 924(c)(1) a crime whose defines Section statutory mandatory term ward from the of an- upon the commission turns existence only 10-years impris- sentenced Craddock requires another The statute other crime. has 3. The United States onment on Count drug or a “crime of violence offense —either sentence cross-appealed Craddock’s not though, as we have made trafficking crime”— this count. charged clear, not be or need the defendant re- predicate offense. The of that that the district convicted Davidians claim 924(c)(1) predi- § lationship between for us- their improperly enhanced sentences drug trafficking of violence or out cate crime machinegun. point The Davidians ing a discuss- here. Decisions crime not at issue allege did the did not nor that the indictment therefore, are, help- relationship machinegun. ing that a jury find that had used each Munoz-Fabela, F.2d at 896 910 Rather, ful. See alleged and the the indictment

739 924(e) § (holding provides independent tory penalties”, requiring or mandatory “stiff liability predicate machinegun. for criminal from sentences” for use of a basis See 132 of- (statement Cong.Rec. key McClure); 9603 fense). relationship is the between of Sen. (statement Cong.Rec. 132 3809 prohibiting carrying Rep. the use or of a firearm of (statement Hughes), (the 4512 Rep. Hughes), of during predicate such offense firearm (statement clause) Rep. Hughes), 6837 6843 30-year mandating a sentence (statement Volkmer), (state- Rep. (the 6850 machinegun when firearm is ma- Moore), (statement Rep. ment of clause). 6856 ehinegun Wirth), (statement Rep. Gallo), Rep. 6857 924(c)(1) § The text of forecloses neither (statement Gallo). Rep. Representa- competing readings of these two of the stat- Hughes tive provision described the as “cre- legislative history statutory ute. The ating mandatory a new extra prison term for structure, however, persuade us that the ma- carrying machinegun.” Cong.Rec. 924(c)(1) chinegun § clause of is a sentence- Noticeably H1646. absent from both the provision. enhancement Report House and the floor debates was 1968, The Gun Control Act of Pub.L. No. suggesting discussion the creation of a new 102, 90-618, (1968), § 82 Stat. 1213 created offense. 924(c), § provided which part: relevant Subsequent mandatory acts increased the Whoever— prison using carrying term for or a machine- (1) any felony uses a firearm to commit gun subjected carry criminals who use or may prosecuted which be in a court of types destructive devices or other of firearms States, the United or penalties. to the enhanced Anti-Drug See (2) unlawfully during carries firearm 1988, 100-690, Abuse Act of Pub.L.No. any felony may the commission of which 6460, 4181, § (1988); 102 Stat. Crime prosecuted be in a court of the United 1990, 101-647, Control Act of Pub.L.No. States, 1101, (1990). § 104 Stat. At no imprison- shall be sentenced to a term of point Congress did indicate that it intended year ment for not less than one nor more new, separate to create a offense for those years. than 10 weapons. H.Rep.No. Cong., See 101st 2d Congress merged reprinted later Sess. 107 the two clauses into in 1990 U.S.C.C.A.N. today (describing the text we know but did not distin- amend guish intending ment to section as among types of “to increase the firearms. The Com- mandatory penalties prehensive using additional Crime Control Act of for Pub. 98-473, carrying weapons during § L.No. certain a crime of 98 Stat. drug felony”); violence or a Cong.Rec. (Judiciary analy- S17360 Committee section 1986, Congress enacted the Firearms sis) (describing amendment to in- section as Act, 99-308, Owners’ Protection Pub.L.No. creasing “mandatory penalty” using (1986), adding 100 Stat. machinegun). machinegun Congress clause to the statute. appended machinegun clause to the rely fire- suggestion The defendants on our clause, arm rather than Correa-Ventura, create a new section. United (5th 1070, 924(c) Cir.1993), § 1087 n. 35 that Report The accompanying House the 1986 may require jury agree type on which explained Act provision that the a “add[ed] weapon of “in was used order for the court to mandatory new prison using term ... for or appropriate penalty.” assess the Correa- carrying machinegun during a and in relation held, however, jury Ventura that need to a crime of violence” and referred to the agree actually not on which firearm was used “[ejnhanced provision penalty as the for ma by the defendant where all of the firearms gun 495, H.Rep.No. chine use crime.” See weapons. from were the same class of The Cong., (1986), reprinted 99th 2d 28 Sess. suggestion was dicta. 1327, 1354. 1986 U.S.C.CA.N. Floor debates addition, requiring also referred to provision support suggestion, as a In for for the “mandatory prison term”, providing opinion “manda- we cited the Circuit’s Sixth 740 expressly re- (6th The court at 714.5 Id. tion.” Sims, 1235-36 v.

States reading validity of that fused consider denied, U.S. Cir.1992), cert. 924(c). (refusing to n. 9 § id. at 715 (1993), See cert. of 122 L.Ed.2d jury’s or court’s role it is whether 123 consider denied, 113 S.Ct. defendant). by weapon used of 507 find nature L.Ed.2d Melvin, here has the Government 179 Unlike 123 L.Ed.2d 999, 113 S.Ct. 924(c). § interpretation of that Sims, also contested (1993). the Davidians upon which Rather, issue here. rely, not address did legislative and its structure The statute’s that, Government where held Sims Congress did not that history persuade us 924(c) counts, one § separate charges two new, by separate offense a to create intend enhancing weap for an and one a “firearm” 924(e). § clause to machinegun adding the court machinegun, the district on, as a such charge in the in- need not The Government 924(c) counts section consolidate those “must of its jury part find as must the nor dictment will be convicted that no defendant so or firearm used type of particular verdict the one gun count relative one than more by the defendant. carried Sims Id. at trafficking 1235. drug offense.” that, argue Davidians next The must the Government not hold that did so, for the there is insufficient even using an enhanced charge the defendant of by preponderance Martinez, to find a district United States See also firearm. or them used each one of Cir.1993). that the evidence That the Govern during and in relation machinegun the in carried separate counts in include can ment agents. federal conspiracy to murder not type of firearm does for each dictment either “[e]ach that court found The district our statute. answer possession of the or constructive had actual reliance on United the Davidians’ Nor is and hand fully weapons automatic numerous (1st Cir.1994), Melvin, F.3d 710 Compound before present in the grenades jury Melvin The convicted well-placed. through day the 51 February 1993 and “firearm”, to a he was sentenced using siege.” 924(c). § The specified in five-year as term 924(c) posses- than “mere requires more arguing given that appealed, Government Bailey by the defendant. a firearm sion” of machineguns among the other prevalence — U.S.-,-,-, States, v. United firearms, ma- finding that defendants used 501, 506, L.Ed.2d 472 inescapable” “implicit and chineguns was must show “active The Government The jury’s Id. at 714. verdict. from Id. dis- employment” of the firearm. holding “[o]ur disagreed, that First Circuit Bailey benefit however, did not have the circumstances, trict court is not in these task had actu- only that each defendant argu- and found whether the evidence determine possession of an enhanced government’s inter- al constructive support the could ment meet finding verdict, weapon. This does it jury’s but whether pretation by Bailey. statutory requirement read inevitably to such a construction.” must lead it, the Circuit facts First On the before Id. explained, there is evidence have As we possi- it not exclude the could concluded machine- be it could found from which defen- jury had convicted the bility that the weapons enhancing other guns and finding they possessed on a based dants conspir- or more members used one machineguns. Id. only firearm and not February firelight 28. acy in the district to do required so was not findings then re- only those Melvin, court entered conceded Government Bailey court must the district quired. With “only if the 30-year available term is findings its re- look and enter gun or si- take another a machine specifically identifies employment.” Should the “active garding supporting convic- as the firearm lencer specific is- decisions did address those Although had conceded the the Government 5. Sims point, cited the First Martinez Circuit sue. above, proposition. As support for this noted for district court find on remand that creating members a substantial bodily risk of serious conspiracy actively employed injury.” machine- argues Branch that there is insuffi- guns, reimpose 30-year it is free to sen- cient evidence that agents’ he knew the offi- tence. vacate the defendants’ identity. We sentences cial claims jury’s Castillo that the resentencing (con- on Count 3 and remand for acquittal on of the Davidians on Count 1 that count. spiracy to agents) murder federal precludes enhancing his for sentence assault on a law that, remand, We note on the district court enforcement officer. should consider whether the defendants ac- tively employed weapon during rela- beyond We think it cavil that the Davidi- conspiracy tion to the to murder federal agents’ ans identity knew the February on agents. 28,1993. We do not argu- address Castillo’s

ment object since he did not to the official B. victim enhancement sentencing either at the hearing objections or in his written to the Branch, Castillo, Craddock, and Fatta Report. Pre-Sentence See United States v. objections raise numerous to the district Chapman, Cir.1993) (hold- 7 F.3d application court’s of Sentencing Guide- ing defendant “waived error based on application lines. We review the of the sen- this issue as he failed to raise it either tencing guidelines de findings novo and its objections written pre-sentence report fact for clear error. United States v. Palm- orally or sentencing hearing”), cert. er, (5th Cir.1994). We — -, address the on sentence each count in turn. L.Ed.2d 839 Castillo contests the 2-level en Avraam, justice. district hancement for sentenced obstruction of Sec Branch, Castillo, tion provides and Whitecliff to 3C1.1 the statu- for a 2-level enhance tory 10-years maximum ment “if imprisonment willfully the defendant obstructed or aiding abetting impeded, attempted Count or voluntary to obstruct impede, or manslaughter agents. justice federal Branch administration of during the in vestigation, prosecution, Castillo application contest the sentencing the Sen- or tencing Guidelines on Count 2. instant offense.” Castillo claims that finding district court’s that he obstructed the began district court with the base days execution of the search warrant for 51 § offense of 25 from level U.S.S.G. 2A1.3 and supported by is not sufficient evidence. added the 3-level enhancement for official 3A1.2(b) pursuant statement, § victim In post-arrest his own the 2-level Castillo justice enhancement for pursu- participating obstruction of admitted to gun- the initial ant to history ensuing 3C1.1. Given their battle and the criminal armed standoff. addition, categories, Kathryn Schroeder, Marjorie total yielded offense level guideline Thomas, ranges of Hollingsworth 108-135 months and 97- and Vietorine all con- months, respectively. However, guard firmed the stat- Castillo stood with a firearm utory 10-years during maximum impris- sentence of the stand-off. The district court’s guideline finding clearly onment ranges reduced the is not erroneous. to 108- months, 120 months and respectively. 97-120 challenges Castillo next the district Branch and Castillo both contest the court’s refusal to reduce his offense for ac ceptance 3-level enhancement for an responsibility. official victim. Section 3E1.1 3A1.2(b) Sentencing provides Section Guidelines a 2-level reduction “[i]f the defen provides for a “during clearly 3-level enhancement if dant acceptance demonstrates of re flight the course of the sponsibility offense or immediate for his offense.” An additional therefrom, knowing where, the defendant ... among or 1-level reduction is available having reasonable things, cause believe that a other the defendant “has assisted au person was a law enforcement or investigation prosecution corrections thorities in the officer, assaulted such officer in a timely provid- manner of his own misconduct ... began with Craddock’s court government The district the to

ing complete information § 2K2.1. of 18. level U.S.S.G. base offense of- the involvement in concerning his own of 50 or for the involvement It 6 levels added to is entitled that he claims Castillo fense.” 2K2.1(b)(l)(F), §to pursuant more firearms reduction, out that pointing full, 3-level of a destructive involvement 2 levels for the Rangers to Texas a statement provided he 2K2.1(b)(3), § and levels to pursuant device immediately his arrest. after with a firearm in connection possession for to this be found claim district court 2K2.1(b)(5). § felony pursuant to another pled not agree. Castillo “ludicrous”. We 2K2.1(e)(1)(A) § applied the then The court While charges against him. all guilty to in possession of a firearm cross-reference “automatically does not trial conviction offense, here, con another connection with section, the availability of this preclude” agents. Applica spiracy to murder federal cases contemplate that those Guidelines adjust yielded an tion of the cross-reference accepts responsibil- both defendant which the that, To offense level 43. ed base meaning of this section ity within for an official court added 3 levels district U.S.S.G. will be “rare”. goes to trial 3A1.2(b) § and 2 levels for to pursuant victim (n. 2); 3E1.1, United States § comment § justice pursuant to 3C1.1. obstruction of Cir.1993). (5th Broussard, 987 F.2d of 48 and a offense level yielded This a total claiming guilt, factual contested his Castillo See imprisonment. of life guideline sentence Moreover, in self-defense. he acted that § 5A. U.S.S.G. at sen- the district court addressed Castillo contests first Craddock stand proclaimed that “we still tencing and 2K2.1(c)(l)(A) § 2X1.1. cross-reference to expressed no re- He on our innocence.” 2K2.1(c)(1)(A) sentencing directs Section personal involvement regret for his morse or if “used § 2X1.1 the defendant apply court to agree agents. ATF in the deaths We or ammunition possessed firearm or this is one district court that not with the attempted or the commission connection with warranting the reduc- “rare” instances those offense, possessed or another commission Waloke, 962 F.2d States v. tion. See United with a firearm or ammunition or transferred Cir.1992) (8th § (rejecting 3E1.1 or knowledge that it be used or intent would self-de- defendant claimed reduction where of in connection another possessed Sanchez, fense); States v. Here, adopted the district court fense.” Cir.1990) (rejecting reduction finding Craddock Report’s that Pre-Sentence remorse). lack of to defendant’s due conspiracy that resulted in a “was involved argues district Finally, Branch agents.” of four federal the murder guideline upwards from the departed court 2X1.1, turn, the sentenc- directs Section exists insufficient evidence sentence and that apply guideline for the “sub- ing court to departure. The court justify the district words, offense,” object in other stantive sentencing upwards from the depart not did points appli- conspiracy. Craddock rather sentenced Branch guidelines but provides “‘[sub- which cation note 10-years imprison- statutoiy maximum offense,’ guideline, as used in stantive range. ment, guideline within the which was defendant means offense 2 for sentences on Count affirm the We conspir- soliciting, attempting, convicted of manslaugh- voluntary abetting the aiding and 2X1.1, comment ing U.S.S.G. to commit.” agents. ter of federal added). (n. 2) argues (emphasis Craddock conspiring 1 for acquittal of Count that his appli- agents bars 2. murder federal therefore cation of the cross-reference. sentenced Craddock The district court matter, jury acquit- that the 10-years imprison- general As statutory maximum conspiring to murder federal unreg- ted possession of Craddock 7 for ment Count preclude district device, to be does such term istered destructive hearing sentencing finding in a on from consecutively to that imposed served that offense. The sen- did commit Craddock Count

743 “may rely underlying on tencing court facts Craddock next contests the 6-level en preponderance if acquitted possession an count stan hancement for of more than 50 weapons dard is satisfied.” See United States enhanced and the 4-level enhance (5th Cir.1991), F.2d 254 possessing 939 ment for a destructive device Allibhai 117 felony S.Ct. connection with another offense. (1992). (5). 2K2.1(b)(1), § explained L.Ed.2d 133 As we else doWe not address these where, “[although jury may have deter assuming contentions. Even without decid government proved ing mined that the had not these sup enhancements are not record, ported by all of the elements of the offense application [other] doubt, beyond a reasonable such a determi cross-reference impact obviated these necessarily preclude nation does not consid enhancements had on Craddock’s sentence. underlying eration of facts of the offense at Nor do we address Craddock’s last conten- sentencing long facts so as those meet the tion challenging 3-point enhancement for reliability standard.” United States v. Jua pursuant § an official victim 3A1.1. Even (5th Cir.1989). rez-Ortega, 866 F.2d particular enhancement, without that Crad- persuaded Nor are we guideline dock’s imprison- sentence is life § 2X1.1 cross-reference itself restricts the way, ment. Stated another the officialvictim ability district court’s to use the facts under enhancement had no effect on the calculation lying acquitted calculating count guideline of his sentence. on the In sentence convicted count. affirm We Craddock’s sentence on Count 7 Smith, States v. 997 F.2d Cir. possession unregistered for of an destructive 1993), Eighth rejected Circuit the identi device. argument cal Craddock advances before us. Smith, In the court wrote: reject that, argument

We Smith’s under amendment, prerequisite the 1991 for The district court sentenced Fatta to the applying section 2X1.1 himto is a convic- statutory 5-years imprisonment maximum on underlying [the tion for offense]. The conspiring Count 9 for to manufacture and commentary to the 1991 version of section addition, possess machineguns. In the court requires 2X1.1 use Guideline statutory sentenced Fatta to the maximum applicable to the substantive offense that 10-years imprisonment aiding for and abet- attempt- the defendant was “convicted” of ting possession machineguns, such ing, soliciting conspiring or to commit. consecutively. terms to be served (n. 2X1.1, 2) (1991). Section comment We conclude, however, that, when read con- sentence, To calculate Fatta’s the district text, commentary applies only if sec- counts, grouped yielding the two a base directly, tion 2X1.1 applied rather than offense level of 18. It added 6 levels for the as a cross-reference from 2K2.1. section pursuant involvement of 50 or more firearms provision The cross-reference contains no 2K2.1(b)(1)(F), §to 2 levels for the involve language requiring that the defendant be pursuant ment of a destructive device convicted of the other offense. 2K2.1(b)(3), § possession and 4 levels Fleming, See also United States v. knowledge, transfer of firearms with intent (8th Cir.1993). That or reason to Smith was believe it would be used in charged underlying felony pursuant offense connection with another 2K2.1(b)(5). acquitted § while of it ap Craddock makes no The district court then 2K2.1(c)(1)(A) Concepcion, plied § See United States cross-reference for difference. (2d Cir.1992), possession 387-88 cert. de of a firearm connection with nied, offense, here, conspiracy 126 another to mur short, agents. Application L.Ed.2d the district der federal of the cross- 2K2.1(c) yielded adjusted § in applying court did not err reference base offense guideline cross-reference for criminal conduct of which level of 43 and a sentence of life acquitted. imprisonment. § Craddock was See U.S.S.G. 5A. 2K2.1(c) rifles and assault lars worth of semiautomatic cross- contests the first Fatta First, ammunition bought con- He cases of handguns. he grounds. two

reference occasion, nearly and, 1 of the acquittal $300 on Count on at least one that his tends agents pre- armor-piercing federal rounds. murder of .50 caliber conspiracy to worth weapons of the cross-reference. recov- application fully automatic of the cludes Several insufficient Second, that there argues purchased is he Mt. Carmel had been ered from the con- a member of that he was evidence by think that both amount Fatta. We agents. spiracy to murder federal by acquired are type firearms Fatta and of They Ko- significant. are consistent with argument same The first prepare an armed for resh’s instruction for the same reason. and fails Craddock’s “beast”; not these are with the confrontation problematic. argument is more The second sportsmen or the of weekend the armaments on present not at Mount Carmel Fatta was These gun collector. efforts of an ardent the other February 28 or thereafter. Unlike war, by type quantity. weapons of and day of the activities on the whose defendants evidence, short, on this In based district demonstrated both ATF raid and thereafter reasonably by preponder- find court could membership in the of and their the existence that Fatta knew of and ance of the evidence agents, Fatta’s conspiracy to murder federal joined conspiracy to murder federal had solely conspiracy turns membership in that application of agents. district court’s February prior to upon his conduct 2K2.1(e) § cross-reference is errone- adopted court the PSR’s find- district ous. prepared in ad- Davidians had ings Fatta’s other do not address conten- We for a war with the U.S. Government vance prepara- challenging the 6-level enhancement tions “Paul Fatta assisted and that than thereby providing possession of more 50 enhanced by purchasing and tion Davidians 4-level enhancement for weapons for Koresh and other and the firearms knowing weapons possessing would be used destructive device connection these felony This against law enforcement officials.” offense. U.S.S.G. with another 2K2.1(b)(l), Craddock, clearly erroneous. these finding § is not As with had no effect on Fatta’s sen- enhancements the district need note that court We applied the after the district court tence by preponderance of the persuaded be 2K2.1(c) cross-reference. federal conspiracy that a to murder prior February 28. United existed Fatta’s sentences on Counts We affirm Mackay, conspiring to manufacture and 10 for Cir.1994) “may (holding that district abetting machineguns aiding possess findings underlying its on sentence base the respectively. machineguns, possession by proven record that have been facts in the evidence”). Kathryn of the preponderance C. began Paul Fatta Schroeder testified purchasing weapons going gun shows court ordered the defendants The district began preaching about Koresh $1,131,687.49 severally, jointly and pay, after confrontation with the “beast”. apocalyptic The court’s initial order re restitution. Indeed, pri- of the Fatta was one Davidians’ “solely paid quired the restitution be gun mary gun purchasers, and he traveled any proceeds received Defendant from the times, occa- on at one shows numerous least any which relates to the de from contract sion Koresh himself. they were crimes for which piction of the movie, book, newspaper, any convicted addition, knowledge Fatta had intimate or production or television magazine, radio pur- type weapons amount kind, any ex live entertainment Davidians. by Koresh and the other chased thoughts, opin the Defendants’ pression of Mag Bag, Fatta was the owner ions, regarding crime.” or emotions such shop through which much machine argue, and the Government The defendants flowed. Fatta purchases firearm Davidians’ concedes, a limitation would violate that such of thousands of dol- purchased himself tens predicate sufficed to See United States dence establish the of- the First Amendment. (5th Cir.1992) Jackson, conspiracy fense to murder federal offi- limit res cers. (holding that “district court cannot solely order to the income defen

titution I. THE FAILURE INSTRUCT ON TO speech their associated with dants earn SELF-DEFENSE denied, activities”), cert. 508 U.S. criminal L.Ed.2d 649 Governing A The Standard 930, 113 and cert. Considerable confusion exists in this circuit (1993); also L.Ed.2d 739 see Simon precise over the formulation of the standard Schuster, Inc. v. Members the New York & determining whether a defendant is enti- Bd., 105, 118, 112 Victims 502 U.S. St. Crime theory to an instruction on a tled defense. 501, 509, 116 L.Ed.2d 476 The S.Ct. recently This court held that “where the however, not, court did attach the district charge district court a a ‘refuse[s] on defense part judgments entered restriction theory evidentiary for which there is an foun- judg against affirm the the defendants. We which, by jury, dation and if believed ments as entered. legally would be sufficient to render the ac- innocent,’ presumes cused this court that the

VII. court lower has abused his discretion.” 2 Correa-Ventura, AFFIRM the convictions on We Counts United States v. 6 F.3d (5th upholding Cir.1993) law 1070, and 3. Bound court (quoting 1076 United 922(o), constitutionality (5th we Rubio, of 18 U.S.C. 442, States v. 834 F.2d 446 Cir. 1987)). 9 AFFIRM Fatta’s convictions on Counts applied But this court has three the sentences on and 10. We VACATE different standards for what constitutes “an findings Count 3 and REMAND for evidentiary requiring a foundation” self-de Finally, resentencing (1) on that count. we AF- “any regard fense instruction: evidence” remaining (2) the sentences on the insubstantial; FIRM less of how “substantial pending hold mandate scintilla”; counts. We evidence” defined as “more than Kirk, (3) decision United States v. 70 F.3d 791 for a “evidence sufficient reasonable (5th vacated, Cir.1995), opinion (the 78 F.3d 160 jury to find in favor” [the defendant’s] (5th Cir.1996). adopted from v. formulation Mathews United

States, 883, 485 U.S. 99 L.Ed.2d SCHWARZER, Judge, dissenting. (1988)). District 54 ap- opinion thorough “any court’s is and work- evidence” standard has been regret, I cases respect. plied

manlike and deserves this circuit since the seminal (5th States, however, 12 agree I am Perez v. 297 F.2d unable to three United (1) Cir.1961), States, points: v. 376 that the evidence was insufficient and Strauss United (5th Cir.1967). defendants to a in- F.2d 416 Courts have contin- to entitle self-defense (2) struction; apply “any prejudicial that it was not error ued to evidence” standard portion Supreme after the Court’s to exclude the of Castillo’s statement both before and Mathews, opinion explained qualified portion decision in on which the which (3) evidence; circuit have into that the evi- Other courts within the received relies.1 Parker, See, Garcia, 419, error.”); e.g., States v. 566 F.2d 1304 United States v. 452 F.2d ("The (5th Cir.) ("In (5th 1971), deciding case we must look at 422-23 Cir. test is whether defendant, support light in the most favorable to there is some evidence to theory.”); the defense the facts 160, Young, F.2d defendant is entitled to instructions United States v. 464 since (5th Cir.1972) (defendant theory "effectively relating which there is to a of defense for denied, evidence.”), deprived right presented any ... in foundation in the of his 'to have 956, 1589, theory relating 98 S.Ct. 55 L.Ed.2d 808 structions to a of defense for 435 U.S. 1336, Goss, (1978); in the evi United States v. which there is foundation that, Cir.1981) ("We (5th "); Taglione, often held if v. 546 F.2d have dence.' United States Strauss, stated, (5th 1977) any evidentiary support (citing whatsoever for a there is Cir. defense, presents theory legal and the trial court’s attention is "Where the evidence of defense defense, evidence, specifically the trial directed to that for which there is foundation in the by refusing judge thus charge commits reversible error refusal to on that defense is reversible 121 L.Ed.2d demanding “more 506 U.S. 113 S.Ct. applied slightly more explaining test. See Pierce v. United which the court reads as than a scintilla” (5th States, Cir.), cert. 414 F.2d 166-68 away “any test based on a evidence” Mathews, that “a defendant statement (1969); v. Groes L.Ed.2d 425 United States any recog- to an instruction as to entitled (5th Cir.1971). sel, But 440 F.2d for which there exists sufficient nized defense recognized that have the exis those courts in. to find evidence for reasonable “any two different tence of the standards — to me a thin favor.” But Mathews seems and “more than a scintilla” —have evidence” proposition.2 on which to lean that reed outcome-determining difference be found no ap- formulation of the standard Whatever Andrew, v. tween them. See United States here, however, plies defendants are entitled (5th 915, 922-24 nn. 10-11 Cir. 666 F.2d un- to an instruction on self-defense. Even Fischel, 1982); v. 686 F.2d United States standard, which is der the Mathews/Stowell (5th Cir.1982); 1082, 1086 n. 2 United States three, demanding of arguably the most Cir.1982). Leon, 679 F.2d 539 n. 5 be sufficient evidence there need Hill, also See United States jury permit to a to have a reasonable record (5th Cir.1980) (noting n. 3 the 1303-04 acting in self- doubt that defendants were not discrepancies semantic between these two because, defense, while the defen- this is so produced disparate have re formulations not cases). production bears the burden of on self- dant Finally, there is United sults defense, (5th Cir.) Stowell, 188, 189 government the retains the burden States v. 953 F.2d curiam), denied, 908, persuasion prove of to the absence of self- (per cert. 503 U.S. 112 denied, beyond a reasonable doubt. See L.Ed.2d 497 and cert. defense Mathews, charge jury.... proposed [the Because 40 L.Ed. 980 is instructive. See to defense, 63, defense] was an available we must de- at at 886-87. 485 U.S. 108 S.Ct. whether, construing termine the evidence most Stevenson involved a defendant who was defense, favorably underlying there was an charged tp with murder. The trial court refused support evidentiary [defen- foundation to give jury on the included instruction lesser claim], weak, regardless dant's of how inconsis- ap- manslaughter offense of and the defendant may [the defense] tent or dubious the evidence of pealed deciding this refusal. In whether the trial been.”); Washington, have United States v. 688 instruction, failing give by court erred to Cir.1982) ("Indeed, (5th F.2d 953 specifically embracing instruction Court stated: theory of the defense might appear The evidence to the court to be given though underly must be even the evidence killing 'weak,' ‘insufficient,’ simply overwhelming to show that the ing the defense be or ‘dubi murder, Rubio, 442, ”); manslaughter fact and not ous.’ United States v. 834 F.2d defense, (5th 1987) (" performed yet, any evidentiary 446 Cir. there is an act in self so '[I]f defense, legal support long whatsoever for a and the relevant to as there was some evidence specifically manslaughter, credibility trial court's attention is directed to the issue of defense, judge the trial commits reversible jury, evidence must be for the force of such ”) by refusing charge jury.’ (quoting error and cannot matter of law for the decision of be Goss, 1336, (5th States v. F.2d 1344 United 650 the court. Kim, 189, 1981)); Cir. United v. 884 F.2d States (5th Cir.1989) ("A criminal defendant enti is judge entirely may ... A be satisfied from jury theory tled to instructed of the have person the whole in the case that the evidence any defense for which there is evidence.”); foundation in the malice; doing killing by was actuated Cordova-Larios, United States any passion he was not in such as to lower the (5th 1990) ("A Cir. defendant is enti manslaugh- grade of the crime from murder to jury theory tled to instructed on a of the have malice; by any yet of ter reason of absence any defense for which there is evidence.”). foundation in the any fairly tending to bear if there be evidence upon manslaughter, prov- the issue of it is the juiy determine from all the ince of the directly did not address the evidentia- Mathews was, and evidence what the condition of mind ry standard under which instruction must say whether the crime was murder or man- given. quoted be statement was a link slaughter. reasoning, leading in the Court's chain of to a Stevenson, 15, 323, 162 U.S. at 16 S.Ct. 314 — holding that a defendant is entitled to raise in- added). (emphasis Stevenson illumi Mathews, consistent defenses. See 63, 485 U.S. Mathews, meaning making clear that nates the 108 S.Ct. at 886-87. But the case Mathews statement, so a defendant is entitled to a defense instruction support quoted cites in Steven- States, any long supported by as it is evidence. son v. United 162 U.S. 16 S.Ct. Alvarez, provoked shooting, 842- dants had that evi- 755 F.2d (11th Cir.) (setting might disqualify out the burden dence that defendant from n.& crimi claiming under federal a self-defense instruction. But a proof self-defense law), required defendant is not to take stand to nal (1985); v. deny aggressor. L.Ed.2d 235 United States his role as an Johnson, n. 4 233-34 Here, any there is no evidence thát Cir.1976). Fifth Pattern See also Circuit provoked shooting. individual defendants (Criminal Cases), Jury No. 2.51 Instructions conflicting While there is evidence as to (1990 ed.). following dis at 137-38 As the whether the first shot came from within the believe, shows, ample I there was cussion compound compound, or outside the no evi- permit to have had a any dence identifies of the individual defen- doubt that the defendants were reasonable firing dants as the first shot. In the absence acting self-defense. evidence, of such the defendants were enti- long to a tled self-defense instruction so Sufficiency the Evidence B. enough permit a there was evidence to rea- recognize necessary it At the outset jury to sonable have a reasonable doubt culpability of this case is about agents about whether the did not use exces- which defendants. The crime of individual sive force. aiding and each defendant was convicted— is, therefore, The “first shot” evidence manslaughter federal abetting significance. limited To the extent that evi- allegedly committed each de- —was dence is relevant to whether defendant group individually; it was not a fendant aggressor, was an the court’s of it treatment Contrary opinion’s general crime. goes beyond of its suffi- the determination to indi- approach, each defendant entitled ciency weigh- engages impermissible and charges against the vidual consideration of credibility.4 ing and evaluation of its Specifically, each is him and his defenses. rejects testimony opinion Ballesteros’ be- to individual determination of his entitled cause it was contradicted at trial and Castil- instruction. The court right to self-defense post-arrest “self-serving, lo’s statement acknowledges as much when it holds that by post-arrest” statement contradicted “over- not to an instruction be- Castillo is entitled whelming” testimony and media agents of reflecting of the evidence his conduct cause representatives by physical facts. The and battle,3 gun day on but the court the however, describes, por- opinion the evidence approach. otherwise forsakes this trays great complexity of and confu- a scene whether, treating issue is each The first Deciding shot first based on that sion. who individually, defendant there is evidence determi- requires a difficult factual evidence showing aggressor record that he was the the by of that should not be made a court nation gun of self-de- in the battle. The defense jury. appeals, left to a but should have been “not fense is available to one who is there Wayne of the matter is whether aggressor.” R. LaFave & Austin The heart See Scott, Jr., If evidence to raise a reasonable Criminal Law 53 was sufficient W. used exces- any these defen- doubt as to whether there were evidence that it, weigh judge refuse to sub- and the cannot 3. factual basis for the court's conclusion evidence, undisputed erroneously merely ex- because he thinks that omits the mit the issue Stevenson, court, merit.”). by the district that Castillo took See also cluded defense has little ("If during gun never fired a cover battle and there were 16 S.Ct. at 840 supra pp. shot. See 717-19. appreciable support in- [to some evidence weight sought], proper credibili- its struction Strauss, juiy,”); ty 376 F.2d at 419 were for the whether the 4. While the court must determine ("If judge the evi- evaluates or screens the trial produced requisite amount of evidence has been defense, proposed upon supporting dence may sought, support the instruction the court charge de- declines to on that such evaluation fense, weigh pass the evidence and on its credibili not jury Pierce, trial (“[O]nce he the defendant’s dilutes ty. See 414 F.2d at 166 there is removing jury's from the consider- justi the issue [sufficient evidence to raise the defense ation.”). consideration], fy it is the function of the its defendants, they opinion argues, that the been defendants contend sive force. The vicariously does not entitle these defendants agents fired indiscrimi- shows that instruction. to such an nately through and walls the windows originated. gunfire no rooms from which accept opinion’s It conten- is difficult by the amply supported This contention was testimony tion Schroeder Marjo- testimony Kathryn Schroeder and upon provides Thomas no basis which a (summarized margin),5 in the rie Thomas knew of and were could infer that defendants during present compound in the who were opinion responding to excessive force. The called at trial as gun that, battle and were suggests could claim before defendants rejects instruction, government The court witnesses. to a be entitled self-defense because it does not show this evidence Thomas or Schroeder had to tell them about gun they supra p. came under indiscrimi- fire witnessed. See defendants However, nate, fire unprovoked fire or knew that such 721-22. there is substantial evi- dence, taking supra p. opinion, 719-20. place. See recited elsewhere might during gun have That Schroeder and Thomas battle the defendants present had in the same area which Schroeder been entitled to a self-defense instruction witness, Schroeder, helicopters Kathryn government approaching. tes- saw three copters As the heli- 28, 1993, nearer, February morning drew heard a sound. Then tified that on the she window, watching began coming through the shat- she was in her room with her children bullets tering (Tr. 30-31.) no the blinds. Thomas ex- out the window. She testified that there were (R. 4455.) plained testimony in her that she saw the heli- firearms in her room at that time. shot, window, (Tr. 181), copter watching uni- and then heard a but While out the she saw first jump two cattle trucks and she did not know if the shot came from the formed men out of (Tr. 197.) running up pointed helicopter. hanging She saw a man start the walk with rifles mid-way, meaning way helicopter, all the from the but could not tell if he was held about testified, (R. 4460-63.) (Tr. 200.) just She armed. She that the first their shoulders. knew (R. (Tr. 181.) immediately, shots.” shot she heard came from outside. "Then almost I heard shots, 4462.) got gunfire coming she heard the she down Thomas testified that the into the When (R. 4463.) another five or room shattered the window and left a bullet hole "Within floor.. seconds,” estimate) (Tr. 145.) (R. 4463), (another ceiling. near the ten above window shot, (R. helicopter that when she saw the "about 15-20 seconds” after the initial She testified shots, 4603), coming thought they began and heard were all in shots into her room. Ac- she (Tr. 87-88.) cording testimony, danger being came killed. She and the to Schroeder's bullets walls, (R. 4602, through 4665-66), other women dived to the floor to avoid the her window and (Tr. 30-31.) top flying they from the the window to the bullets overhead. After floor, through up as well as the comer of the were on the someone called from the bottom wall, (R. 4464); guns; window and about a half second floor to hand over their three of window, (R. (Tr. through guns present. dozen shots came 4464); the the women in the room had room, however, 32.) testified, dogs and were shot in front of her Thomas that when the (R. 4665-66). looking the She testified that after women were out the window before the started, gunfire got gunfire they firing weapons onset of the she and her children were not (Tr. 197.) on the and she had her children lie sticking anything down floor out of the window. (R. 4464.) According under the beds. to her during person up When the called from the second floor testimony, Schroeder never fired a shot asking guns, women the the the retrieved time, (R. 4665-66), floor, bed, else fired this and no one guns from the and beside the bed. either, (R. 4602-03). from her room Schroeder They passed guns, along then with ammuni- vests, floor heard testified that after she was on the she tion down to the lower floor. Thomas 4465.) (R. gunfire going on and on. As the testified that she did not see who received the continued, gunfire (Tr. 33-34.) she was able to tell which guns. passing guns After coming floor, were and which bullets from outside ammunition to the lower the women re- (R. 4465.) coming Thereafter, were from inside. She mained in the loft. someone called (R. stayed feared for her life so she on the floor. for them to come down to the second floor 4602.) Eventually, Brad Branch came in and them in the because it was not safe for to be loft. gun they asked if had a man a in the they and/or At that time all went to the second floor no, they they room. When said he said had to many saw women and children where Thomas (R. 4466.) get out together, top because it was not safe there. on the floor close almost on of each Thomas, (Tr. 35.) they Similarly, Marjorie government a other. Thomas testified that re- also witness, that, ground during shooting. (by deposition) Bul- testified video mained on the 28th, they morning flying everywhere her room lets were feared for she went into that, looking during their lives. Thomas testified time, and saw her friends (Transcript out window. anyone deposition pp. she did not see on the floor near of redacted video (Tr. 116-19.) 28-29.) shooting agents. joined at the Thomas them at the window and her out offense; principal obviously while and that the latter not deter- were located and Thomas minative, person that shows that the in the enough to observe the defendants’ were close position regard- to evaluate the evidence their exclamations. See best activities and hear If the evidence showed ed it as sufficient to warrant such an instruc- supra pp. 733-35. general in tion. These defendants had a serious claim the same that the defendants that the ATF used excessive force. There- vicinity and Thomas while as Sehroeder fore, helicopters they were entitled to a self-defense involving and some well- battle raged compound, manslaughter in the in relation to the ATF instruction armed casualties, charge, give in and the trial court’s failure to ultimately resulting over 30 to raise an one reversible error. surely that evidence was sufficient was whether the defen- for the as to issue responding to the knew of and were dants II. A EXCLUSION OF PORTION OF through and into win- firing walls random CASTILLO’S STATEMENT and Thomas. observed Sehroeder dows Ranger De Los testified that Texas Santos Finally, agree, can all as the while we following Castillo made the statement about states, may that a citizen not initiate opinion day of the battle: ground firefight solely on the morning he That heard someone many officers to police sent too well-armed saying something going hap- him, day argue it is too late arrest bed, got put pen, so he out on his black amount of there are no limits on the clothing and an ammunition vest which may executing police use war- force the eight magazines, picked up his held in- protects Amendment rants. The Fourth He then looked out window AR-15. against “the use of excessive force dividuals approaching two cattle trailers saw by a officer even when that law enforcement compound. he saw them he exited When making a lawful arrest.” United officer foyer his room and went to the where he n. 3 Span, Howell, Jones, Perry and oth- saw Vernon Cir.1992) Connor, (citing Graham opened Howell the front door ers. Vernon 1865, 1870-72, 386, 394-96, 109 S.Ct. minute, there’s women and stated “Wait (1989)). “[Djetermining wheth L.Ed.2d 443 gunfire erupt- in here.” Then and children particular seizure is er force used to effect gunfire through the door. "When the ed the Fourth Amendment ‘reasonable’ under erupted, he tried to chamber a round balancing ‘the requires a careful nature AR-15, jammed. it He then ran down but quality of the intrusion on the individu- room, hallway, back to his where he against interests’ al’s Fourth Amendment got personal his own 9-millimeter Baretta countervailing governmental interests his room and went down pistol. He exited Graham, 490 U.S. at stake.” hallway other the toward the end “dy- a opinion The declares that 1871. room, compound second to the last to the entry” by agents with 9 namic armed compound. He facing the front of the pistols and AR-15 semiautomatic millimeter room, where there were three entered that accompanied by helicopters rifles and will not other Davidians. support an of unreasonable force. inference testimony, prosecutor the rationale, Following this sweeping it

But the court’s under clarify questions to asked De Los Santos if made no difference the would have the front of room entered faced the Castillo by personnel armored supported had been to be compound. The clear inference carriers, tanks, the by by suppression fire or or that, upon testimony is en- from this drawn from aircraft. room, in tering participated the Castillo conclusion, appeal presents no mere In battle, thereby aiding abetting the gun a “lawyer’s sporting search for error” or for agents. manslaughter of federal mercy- “device for defendant to invoke the eliciting from jury.” court barred Castillo dispensing prerogative of the See su- the testimony Los Santos about judge gave a self- from De pra p. 741. The trial following portion of statement: the Castillo’s in connection with defense instruction ing stocks and had no idea what to to sell the into the room identified Castillo went Summers, McBean, Hipsman’s None of these room. do with stock certificates.” during cover he took are related to the defendant’s Castillo stated statements shooting, firing a shot. Castillo also presence never at the time of on Hamilton Street round. and, therefore, in his room fired a stated no one co-defendant’s arrest his know who claims that he doesn’t Castillo qualify explain or could not be said to weapon inside. fired a portion admitted of the statement. The added). thing additional that could be said about the (emphasis supra p. 728 This See they exculpatory. statements was that portion of Castillo’s statement re- excluded Thus, fact that misleading while Smith stands for the potentially nature veals exculpatory of a statement does portions of his statement. nature admitted require under the not alone its admission completeness the rule of embodied Under analysis, does not Rule 106 fairness Smith portions a additional Fed.R.Evid. why speak to Castillo’s statement that he if defendant’s statement must be admitted cover in the room and did not fire his took they [in case]” are “relevant to the issues gun qualify that he does not the statement explain subject matter of “qualify picked up gun room and went into the opponent....” portion offered (the compound facing the front of the side Crosby, 713 F.2d United States gunfire from which much of the Davidian denied, Cir.), cert. came) and, therefore, (1983) should have been ad- (emphasis S.Ct. 78 L.Ed.2d added). mitted. Smith, Citing United States v. 794 F.2d Instead, highlights the error Smith (8th Cir.), admitting Castillo’s additional statements. 93 L.Ed.2d 370 Smith, In court the lower affirmed the defen- upholds portion the exclusion of this conviction, recognizing dant’s the trial testimony because it leaves Castillo’s court had allowed “Sutton to cross-examine “pick[ing] up handgun unqualified his ... government agent respect with Smith, unexplained.” supra p. See 728. to, portion [even the statement testified however, but, analogous is not to this case though] it to allow to cross- refused Sutton fact, reveals the weakness of the court’s rea respect portions ... examine to other soning here. statement]_” (em- Id. at 1335-36 [of Smith, police officer testified about added). placed phasis When de los Santos portion post-arrest of a small defendant’s facing armed in a room the front of Castillo present that he “was on Hamilton statement compound taking where the battle was the time of [his co-defendant’s] Street at place, surely Castillo was entitled to cross- ... arrest and observed the arrest [and] portion examine him about that of the state- bicycle.” he owned a red or maroon See by asking ment what else he said about his

Smithy That statement presence in that room. partial supporting admission served as opinion testimony also cites United States v. government of two witnesses who Haddad, (7th Cir.1993), placed vicinity Hamil- 10 F.3d 1252 which the defendant analogous supports to this ton at the time of his co-defendant’s case Street portion that the additional of arrest. Id. Additional statements the de- conclusion Cas- “(1) sought fendant to have admitted were: tillo’s statement should have been admitted. Haddad, police that had co-defen- officer testified that the [the defendant] [his met (2) earlier; dant] two months that five weeks defendant admitted that he knew there was court, marijuana before co-defen- under the bed. The trial [the defendant’s] [his arrest however, testimony if dant] [the asked he could dis- excluded that the defen- defendant] certificates; dant, time, pose of Anheuser-Busch stock at the same had denied knowl- (3) stocks; edge gun [the defendant] that never dealt of a that was found under the bed (4) boy’s marijuana. game’; that stocks some six inches from the The were “white (5) error, ruling saying: attempt- that he was not involved in court held the to be

751 denied, denied, 186, 474 766 F.2d cert. portion reh’g inculpatory The admission 241, 277, 908, 88 L.Ed.2d (i.e. location of 106 S.Ct. U.S. he knew that denied, 1034, 599, suggest, absent 106 S.Ct. 88 marijuana) might cert. 474 U.S. more, reversing also knew of the a conviction: L.Ed.2d 578 that the defendant should be ad- whole statement gun. The charged conspir- ... with was [Defendant] completeness and in the interest mitted murder; degree acy first first to commit inferences, context, misleading avoid to requires murder the criminal intent degree impartial a fair and help insure and to aforethought. and malice premeditation understanding of the evidence. gov- upon incumbent It was therefore (ultimately holding that the 10 F.3d at 1259 prove had that [defendant] to ernment the same prejudicial because error was criminal intent.... through another wit- was received States, Ingram v. 360 U.S. See also United ness). 672, 678, 3 L.Ed.2d 1503 79 S.Ct. inculpatory Here, too, receipt of the particular commit a substan- (“conspiracy to (that went Castillo the statement portion of without at least the offense cannot exist tive battle) required facing room armed into a necessary for the degree of criminal intent portion of the related receipt of the other itself.”), denied, reh’g offense substantive (that fired took cover and never he statement (1959); 42, 4 S.Ct. L.Ed.2d See, shot) misleading inferences. to avoid Beil, 1313, 1314-15 v. 577 F.2d United States (this court’s statement e.g., supra p. 731 (5th denied, Cir.), reh’g 585 F.2d 521 that he was in a room admitted “Castillo Cir.1978), denied, cert. 440 U.S. 99 S.Ct. gun front, gun, during the with a armed (1979). leading A text 59 L.Ed.2d 634 battle.”). point: elaborates the charged murder. Castillo stood outset, to note that there At it is useful testimony placed Castil- de los Santos’ When really required intents for the are two shot, fatal it might have fired a lo where he Every conspiracy in- conspiracy. crime preclude cross- to an abuse of discretion it must be estab- agreement, so volves an taken cover that he had examination to show parties intended to that the several lished a shot. and never fired an intent is “without agree. But such content,” thus it is also neces- moral EVIDENCE OF OF III. SUFFICIENCY objective par- sary to determine what 924(c)(1) § UNDER CONSPIRACY by agree- their to achieve ties intended Whitecliff, Castillo, Branch, Defendants purpose Only if is a common there ment. convicted under Avraam and Craddock objective covered the law attain an to 924(c)(1) and each was sentenced section liability. conspiracy is there “crime of violence” years. predicate Scott, Jr., & Austin W. Wayne R. LaFave conviction was based was on which this 6.4(e) (1986). Law Criminal Substantive officers. Be- to murder federal conspiracy defendants on jury acquitted the cause the is re- record “[t]he court states count, court must deter- conspiracy murder conspiracy of a plete with evidence was sufficient evidence there mine whether defen- agents and each individual federal joined con- of the defendants that each But conspiracy.” membership in that dant’s requisite intent. See United spiracy with the relating defendants as these the evidence Powell, 469 U.S. States February at most 28 reflects the events of (1984); 471, 478, L.Ed.2d 461 each, Branch Davidi- a member of the (5th Cir.), Ruiz, 905, sect, fashion in the in some participated is no evidence gun There battle. L.Ed.2d 107 kill feder- agreement into an them entered officers, any did so with much less that al killing of a human “the unlawful Murder is aforethought. malice premeditation aforethought.” 18 U.S.C. being malice were members That these defendants court said in United § 1111. As this Koresh, teachings (5th Cir.), by David whose Harrelson, led sect may inflammatory, 35), have been well and that late sug Procedure and Local Rule they present in compound during gestion Rehearing for En Banc is DENIED. ways in participants the battle and various in

it, support finding does that each of conspired

them to murder federal officers. Each defendant is entitled to individual justice by means of review of the evidence America, UNITED STATES requisite to determine whether the elements Plaintiff-Appellant, conspiracy of such a have been established as that, Failing to him. their conviction of the

predicate nothing offense rests on more than RIAZCO, Lugo Harold Raul a/k/a guilt by association. Serrano, Defendant-Appellee.

Accordingly, I would reverse the convic- No. 96-20120 tions and remand for a new trial. Summary Calendar. United States Appeals, Court of

ORDER ON REHEARING Fifth Circuit. Sept. Aug.

PER CURIAM: Lucien, We find that United States v. (5th Cir.1995), F.3d 366 does not control in presented this case. Lucien factually dif- ferent situation where instructional in error

predicate offense infected the conviction un- 924(c)(1). §

der 18 U.S.C. charge Lucien failed to allow the to consider possession, the lesser resulting offense predicate reversal of the count. If in Lucien predicate the found posses- offense had been drugs sion of distinguished as from distribu- tion, jury's view of the use of firearms premises might found on the quite have been Moreover, Lucien, different. govern- ment did not contest the reversal of the 924(c)(1) grounds conviction on the may inconsistent verdicts stand and there- effectively fore point. conceded that We de- cline to interpret Lucien changing universally held view that inconsistent ver- may Powell,

dicts stand. United States v. 83 L.Ed.2d 461 remaining contentions are also rejected. without merit and Judge are Schwarzer adheres to his dissent.

Treating suggestion rehearing for en petition banc panel as a for rehearing, it is petition panel ordered rehearing is DENIED. No panel member of the nor

Judge regular active service of this court having requested polled that the court be (Federal

rehearing en banc Appel Rules

Case Details

Case Name: United States v. Brad Eugene Branch, Kevin Whitecliff, Jaime Castillo, Renos Lenny Avraam, Paul Fatta and Graeme Leonard Craddock

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Sep 25, 1996

Citation: 91 F.3d 699

Docket Number: 94-50437

Court Abbreviation: 5th Cir.