Opposition Brief — Castillo v. United States
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MAR 21 1997
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Nos. 96-989, 96-1028, 96-7227 and
-7265
it
Jn the Supreme Court of the Gnited States
OCTOBER TERM, 1996
JAIME CASTILLO, PETITIONER
Uv.
UNITED STATES OF AMERICA
KEVIN A. WHITECLIFF, PETITIONER
v.
UNITED STATES OF AMERICA
BRAD EUGENE BRANCH, RENOS LENNY AVRAAM,
AND GRAEME LEONARD CRADDOCK, PETITIONERS
Vv.
UNITED STATES OF AMERICA
PAUL GORDON F ATTA, PETITIONER
Us
UNITED STATES OF AMERICA
ON PETITIONS FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
WALTER DELLINGER
Acting Solicitor General
JOHN C. KEENEY
Acting Assistant Attorney
General
JOSEPH C, WYDERKO
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
QUESTIONS PRESENTED
1. Whether the court of appeals properly affirmed the
convictions of petitioners Castillo, Whitecliff, Branch,
Avraam, and Craddock for using or carrying a firearm
during and in relation to a crime of violence under 18
U.S.C. 924(c)(1), even though the jury acquitted petition-
ers of the predicate crime of conspiring to murder federal
officers.
2. Whether the type of firearm that is used or carried
by an offender during and in relation to the predicate
crime is a sentencing enhancement factor, rather than an
element of the offense, under 18 U.S.C. 924(c)(1).
3. Whether petitioners’ sentences under 18 U.S.C.
924(c)(1) may be enhanced based on their co-conspirators’
use, during the predicate crime, of firearms requiring an
enhanced sentence.
4. Whether petitioner Whitecliff was entitled to a jury
instruction that self-defense or the defense of others was a
defense to voluntary manslaughter.
5. Whether the Commerce Clause of the Constitution,
Article I, Section 8, Clause 3, empowered Congress to
enact 18 U.S.C. 922(0), which makes it a federal offense to
transfer or possess a machinegun.
(I)
TABLE OF CONTENTS
Page
STITT strait teeeli a aiccietaninetbghandegeeatielgeoes 2
ASAE AE RE RSA 2
ERE EAE IEC SE SII Ce a 2
STITT “citi delle tii nechcdicadidaiubabebbeecesestssbehtionbbertesvediness 17
I ih uitabirnsiegl 31
TABLE OF AUTHORITIES
Cases:
Bailey v. United States, 116 S. Ct. 501 (1995) ... 15, 21, 24
Deal v. United States, 508 U.S. 129 (1993) ............ 21
Graham v. Connor, 490 U.S. 386 (1989) ................ 29
Mathews v. United States, 485 U.S. 58 (1988) ..... 13, 26
McMillan v. Pennsylvania, 477 U.S. 79 (1986) ...... 21
Pinkerton v. United States, 328 U.S. 640
EEE EEE SESE AEE a tee > ae 11, 23
Russell v. United States, 369 U.S. 749 (1962) ....... 21
Smith v. United States, 508 U.S. 223 (1993) ...... 12, 21
Tennessee v. Garner, 471 U.S. 1 (1985) .................. 29
United States v. Alerta, 96 F.3d 1230 (9th Cir.
a emeunene 22
United States v. Alvarez, 755 F.2d 830 (11th Cir.),
cert. denied, 474 U.S. 905 (1985), 482 U.S. 908
a a 9, 26, 27, 28
United States v. Anderson, 59 F.3d 1323 (D.C.
Cir.), cert. denied, 116 S. Ct. 542 (1995) ................ 17
United States v. Beuckelaere, 91 F.3d 781 (6th Cir.
SEER CRIS CRIES IN Ae a 30
United States v. Bracy, 67 F.3d 1421 (9th Cir.
Nt ticcairainneteedeieninidabnbedoborens 17, 19
United States v. Collins, 690 F.2d 431 (5th Cir.
1982), cert. denied, 460 U.S. 1046 (1983) ............... 13
United States v. Danehy, 680 F.2d 1311 (11th
SEI RE NC ae Oe 1 27, 28
(II)
IV
Cases—Continued: Page
United States v. Dean, 59 F.3d 1479 (5th Cir.
1995), cert. denied, 116 S. Ct. 748 (1996) ............... 23
United States v. Feola, 420 U.S. 671 (1975) ......... 25, 27
United States v. Ferrone, 4388 F.2d 381 (3d Cir.),
cert. denied, 402 U.S. 1008 (1971) ..............eeeeeeeeeee 28
United States v. Frayer, 9 F.3d 1367 (8th Cir.
1993), cert. denied, 115 S. Ct. 77 (1994) ................ 17, 19
United States v. Gonzalez, No. 95-1605 (Mar. 3,
| __s SIRs eersa ect ae Hn ene MANA SES eon 18
United States v. Hill, 971 F.2d 1461 (10th
CRs, TIPU scouecsceiiccinsaeacdendniaivemasdeeebnebniaueiniinietiioens 17
United States v. Jackson, 726 F.2d 1466 (9th
EU TIT sssstassinrcien sctibseiaceaihentonibnechnstitiaeiabiditaiiaaddendnarite 26, 28
United States v. Johnson:
462 F.2d 423 (3d Cir. 1972), cert. denied, 410 U.S.
Be OE. nscereniedeivenictertandpanintieniiieichiintientiaettcepniee esate 28
542 F.2d 230 (Gth Cir. 1976) .......cccccccccccccccccccccccess 26, 28
United States v. Kenney, 91 F.3d 884 (7th Cir.
SED wcintsisbsactiecedatedeactiinsscasncntincnasinditminidcdlianessintas 30
United States v. Kirk:
70 F.3d 791 (1995), reh’g en banc granted, 78 F.3d
160 (1996), on reh’g, 105 F.3d 997 (5th Cir.
CORED cesusicoctersonintadehiesndtesccmnans Maghdaiaigi cetaceans 12, 30
105 F.3d 907 (Gth Cir. 1997) ....ccccccccccccccoscosccccccseee 13, 30
United States v. Laing, 889 F.2d 281 (D.C. Cir.
1989), cert. denied, 494 U.S. 1008, 1069 (1990) ....... 19
United States v. Lopez, 115 S. Ct. 1624 (1995) ...... 30
United States v. Lucien, 61 F.3d 366 (5th Cir.
SEED - ccscssconcicocucetpnscsaneceaseutunielaissaidaedalieddansaiians 16, 19, 20
United States v. Melvin, 27 F.3d 710 (lst Cir.
SD cccvecindesmsccicininneincsiiiamnsiemmiiaaiideaiieathiia athe: 22
United States v. Middleton, 690 F.2d 820 (11th
Cir. 1982), cert. denied, 460 U.S. 1051 (1983) ....... 28-29
United States v. Moore, 958 F.2d 646 (5th Cir.
RET <cirseniusicsrsicectsnnsntidniedbdindisithlaucaiaiiadhdinsamasiieeneida 28
Cases—Continued:
United States v. Morton, 999 F.2d 435 (9th Cir.
REESE IR a Sn ee Tae MTS SOON, it Re bare OPEN
United States v. Munoz-Fabela, 896 F.2d 908
(5th Cir.), cert. denied, 498 U.S. 824 (1990) ......... 14, 17
United States v. Myers, 102 F.3d 227 (6th Cir.
RSE RE TE LER rt tered ie yt ee oR 23
United States v. Nabors, 901 F.2d 1351 (6th
Cir.), cert. denied, 498 U.S. 871 (1990) .................. i)
United States v. Ochoa, 526 F.2d 1278 (5th Cir.
ROU acsbstbiscibssthnscasetaanieltsdaciaimnlataidelacliAlcebduenniés 27, 28
United States v. Ospina, 18 F.3d 1332 (6th Cir.),
cert. denied, 512 U.S. 1226 (1994) ................ceeceees 17, 18
United States v. Perez, 86 F.3d 735 (7th Cir.
STE vesduudnibcaabeniinvessgammluiiiomminiinaliarcian hie tech 26
United States v. Powell, 469 U.S. 57 (1984) ......... 18, 19
United States v. Rambo, 74 F.3d 948 (9th Cir.),
cert. denied, 117 S. Ct. 72 (19B6) ......ccccscccecscseccecees 30
United States v. Ruiz, 986 F.2d 905 (5th Cir.),
cert. denied, 510 U.S. 848 (1998) .................0cceeeeee 19
United States v. Rybar, 103 F.3d 273 (3d Cir.
EE eR MP NO Se CRONE alr! 5. Cal ON 30
United States v. Sims, 975 F.2d 1225 (6th Cir.
1992), cert. denied, 507 U.S. 832, 998, 999 (1993) ... 22
United States v. Span, 970 F.2d 573 (9th Cir.
1992), cert. denied, 507 U.S. 921 (1998) ................. 28
United States v. Streit, 962 F.2d 894 (9th Cir.),
cert. denied, 506 U.S. 962 (1992) ...............000 26, 27, 28
United States v. Thomas, 12 F.3d 1350 (5th Cir.),
cert. denied, 511 U.S. 1095, 1114 (1994) .........00000... 17
United States v. Varkonyi, 645 F.2d 453 (5th Cir.
FPG? - citanrdéveovsnishinietinnaiabitudeauilaunibtgbhsiantbtitesabebers 28
United States v. Wagner, 834 F.2d 1474 (9th Cir.
TED scaiiecsitecdiaheminshisnatesndibaieaninataadalibestnietiliatils tind neces 26
United States v. Wilks, 58 F.3d 1518 (10th Cir.
DEDEED ‘ahesccbetusdeshabtinidentiahciadionadiaibibdiieidaiabeibiniaaadaninas 30
Cases—Continued: Page
United States v. Williams, 31 F.3d 522 (7th Cir.
BIL sitio 5 sia asicenipgeinadesdanbounsbbondedenimmasasbarenennenys 23
United States v. Young, 464 F.2d 160 (5th Cir.
DUITED wiccccdecceccovcsevenecbetesteceoqredoembeuonssenntbectebtoansepeetn 27, 28
Wisniewski v. United States, 353 U.S. 901
TRIED siicisdinccodseccdvaseetdedbesendesoansebeabedemseptbasebbednonenens 20
Constitution, statutes and regulation:
U.S. Const..:
Art. I, § 8, Cl. 3 (Commerce Clause) ............+ 8, 12, 30
BEL 2W sctncotsnaniudebtntdoviteevvesesdippeudeovipocetttonaabeti 29
MINE, "Wy . 5. ccctequcegeededertmntediseseseceiatuetabentateotsunddies 21
TENET IT © dmnicpeccnesneceneneninpedoaouoceseansmmpedenntenneamedgiods 21
Gun-Free School Zones Act, 18 U.S.C. 922(9)(1) ..... 30
He PIL TP UUT nciccecsartebonesispmbanensencedituscwtaptusedbadesaninnet 26, 27
Ir UE TT as cookie seceneoceceeieonsddoieonoredbuasuvnsoteondenensnds 2, 30
Bie MEET TEED " occ soc cenvesepnnsenteouenenpeedanséommenunene? 11
BE Ete SUID. cccccocccreconcccdrvneccccsvsacsensedebentebieens 11
BD Ce TIE ‘crenccocscocvoccccteseovouneseocsionsdnnieneeteds 11
BO UE Rs SD) =cccecccececscotecevecececeseccseteconscnsecncoens ll
Ee. tatere EIEN occdcoddectvonecedreconesnecibesesiecesien 2, 8, 12, 13, 30
BEE Uy ate RROD). cocccevccsccoscccncconccecsssovevenssecoesnees passim
Ii AP iis LL ccaneucdercoveccecescevideveouneunnedeoqutventnamiiennets 2,9
Bey Eraiase ARES cécdccecevscveccosweccednstesivescceneseeoocnnssiemincens 3,9
DREAEET UIE isd ut cceadedseaneshivennineasnie 2, 3, 9, 23, 25, 27
i MTUEIEES RENT cccnocnnsexcccceccnsetsousdedveseuseaseseananooensaneaael 2, 10, 23
Ty EFL A: TEED cicnseconcdocccsececnedebeccsesentnineneoeniennaoene 11
Fe es TEED choceccsévencsensvcrcnonineeeneniomadarenetnaiinninn 2
Sentencing Guidelines § 1B1.3(a)(1)(B) (1995) ......... 23
Miscellaneous:
W. LaFave & A. Scott, Substantive Criminal
Law (1986 & 1997 Supp.) ....ccccccccceceseeeeeeeeeeeeeseneeees 29
In the Supreme Court of the Anited States
OCTOBER TERM, 1996
No. 96-989
JAIME CASTILLO, PETITIONER
Vv.
UNITED STATES OF AMERICA
No. 96-1028
KEVIN A. WHITECLIFF, PETITIONER
Vv.
UNITED STATES OF AMERICA
No. 96-7227
BRAD EUGENE BRANCH, RENOS LENNY AVRAAM,
AND GRAEME LEONARD CRADDOCK, PETITIONERS
Vv.
UNITED STATES OF AMERICA
No. 96-7265
PAUL GORDON F ATTA, PETITIONER
Vv.
UNITED STATES OF AMERICA
ON PETITIONS FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
(1)
2
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. la-116a)' is
reported at 91 F.3d 699. The opinion of the district court
(Pet. App. 119a-141la) is unreported.
JURISDICTION
The judgment of the court of appeals was entered on
August 2, 1996. A petition for rehearing was denied on
September 25, 1996. Pet. App. 117a-118a. The petition for a
writ of certiorari in No. 96-989 was filed on December 19,
1996; the petition in No. 96-1028 was filed on December 23,
1996; the petition in No. 96-7227 was filed on December 20,
1996; and the petition in No. 96-7265 was filed on December
19, 1996. The jurisdiction of this Court is invoked under 28
U.S.C. 1254(1).
STATEMENT
In August 1993, a grand jury sitting in the United
States District Court for the Western District of Texas
returned a superseding indictment charging petitioners
and six co-defendants with conspiring to murder federal
officers (Count 1), in violation of 18 U.S.C. 1117; and mur-
dering federal officers (Count 2), in violation of 18 U.S.C.
1111 and 1114. All six petitioners, along with four co-
defendants, were also charged with using and carrying a
firearm during and in relation to a crime of violence
(Count 3), in violation of 18 U.S.C. 924(c)(1). Petitioner
Craddock was separately charged with possessing an
unregistered destructive device (Count 7), in violation of
26 U.S.C. 5861(d); and with conspiring to do so (Count 8), in
violation of 18 U.S.C. 371. Petitioner Fatta was separately
charged with conspiring to possess machineguns (Count
9), in violation of 18 U.S.C. 371; and with possessing
machineguns (Count 10), in violation of 18 U.S.C. 922(0).
Pet. App. 4a-5a.
! Unless otherwise noted, “Pet. App.” refers to the appendix to the
petition in No. 96-989.
3
Following a jury trial, petitioners Castillo, Whitecliff,
Branch, and Avraam were convicted on Count 2 of the
lesser-included offense of voluntary manslaughter of
federal officers, in violation of 18 U.S.C. 1112 and 1114. In
addition, petitioners Castillo, Whitecliff, Branch, Avraam,
and Craddock were each convicted on Count 3 of using
and carrying a firearm during and in relation to a crime
of violence. Petitioner Craddock was also convicted on
Count 7 of possessing an unregistered destructive device,
Petitioner Fatta was convicted on Counts 9 and 10 of con-
spiring to possess machineguns and possessing machine-
guns. Pet. App. 5a-6a.
Petitioners Castillo, Whitecliff, Branch, and Avraam
were each sentenced to 40 years’ imprisonment, to be fol-
lowed by five years of supervised release. Castillo, White-
cliff, and Branch were fined $2,000; Avraam was fined
$10,000. Petitioner Craddock was sentenced to 20 years’
imprisonment, to be followed by five years of supervised
release, and fined $2,000. Petitioner Fatta was sentenced
to 15 years’ imprisonment, to be followed by three years of
supervised release, and fined $50,000. In addition, petition-
ers were ordered to pay restitution of $637,607.49 to the
Bureau of Alcohol, Tobacco, and Firearms, and $494,080 to
the Public Safety Officers Benefit Program of the U.S.
Department of Justice. Pet. App. 78a, 142a-151a; 96-1028
Pet. App. 3a-14a; 96-7227 Pet. App. 144a-173a; 96-7265 Pet.
App. 123a-128a.
The court of appeals affirmed petitioners’ convictions on
all counts, vacated petitioners’ sentences on Count 3 and
remanded for resentencing, and affirmed petitioners’ sen-
tences on the other counts. Pet. App. la-116a.
1. On February 28, 1993, 76 agents of the Bureau of
Alcohol, Tobacco, and Firearms (ATF) attempted to exe-
cute an arrest warrant for Vernon Wayne Howeil and a
search warrant for a large compound known as Mount
Carmel outside Waco, Texas. Howell, who had changed his
name to David Koresh, was the leader of the Branch
Davidians, a religious sect that resided at the compound.
4
Koresh taught at daily Bible studies that the Branch
Davidians would be “translated” into heaven following an
apocalyptic confrontation between the Branch Davidians
and outsiders, whom he referred to as “the beast” and “the
enemies.” Koresh instructed the Branch Davidians to
prepare for the final battle and preached that, “if you can’t
kill for God, you can’t die for God.” In anticipation of an
imminent violent confrontation with the outsiders, Koresh
and the Branch Davidians had stockpiled weapons and
ammunition. Pet. App. 2a-3a; Gov’t C.A. Br. 4-10.
Approximately 45 minutes before the ATF agents
arrived on February 28, 1993, undercover ATF Agent
Roberto Rodriguez, who was posing as a possible convert,
visited Koresh inside the Branch Davidian compound.
During their conversation, Koresh was informed that he
had a telephone call and left the room. When Koresh
returned, he was shaking and shivering. Koresh told
Rodriguez: “[Njeither the ATF or National Guard will
ever get me. They got me once, they'll never get me
again.” Koresh then looked out the front windows and
repeated: “They’re coming, Robert. The time has come.”
After Rodriguez left the compound, Koresh and other
Branch Davidians prepared for a raid. Several men
changed into black clothing and retrieved their weapons.
The women were told to go to the chapel, but none of the
men were there. Koresh came into the chapel wearing a
black magazine vest and carrying an AK-47 assault rifle,
and he told the women to go back to their rooms and watch.
Pet. App. 3a, 16a-17a, 66a-67a; Gov’t C.A. Br. 10-15.
Around 9:30 a.m., the ATF agents arrived at the Branch
Davidian compound in two cattle trailers that were
covered with tarp. After several agents stepped out of one
of the trailers and approached the double front doors at the
compound’s entrance, gunfire erupted from behind the
doors and from the windows along the front of the com-
pound. The gunfire continued as the agents exited the two
trailers and tried to approach the compound. During that
period, three helicopters attempted to create a visual di-
5
version by flying towards the back of the compound. When
the helicopters approached the compound, all three were
hit by gunfire. The helicopters immediately left the area.
Pet. App. 3a-4a; Gov’t C.A. Br. 15-28.
When the gunshots erupted from the compound, the
ATF agents at the front of the compound returned fire.
Meanwhile, another group of agents proceeded down the
right side of the compound. As two teams of agents
climbed ladders onto the roof, they heard gunfire cracking
around their heads. The first team attempted to enter the
window that the agents believed led to Koresh’s living
quarters, but gunfire erupted through the window and the
surrounding wall. Three agents from the second team
entered a second window that they believed led to the room
where Koresh stored his weapons and ammunition. When
gunfire erupted from around the doorway and the opposite
wall in the room, the agents returned fire and then escaped
back through the window. Gov’t C.A. Br. 33-38.
The gun battle between the ATF agents and the Branch
Davidians lasted nearly two hours. During the battle,
Agents Steven Willis, Conway LeBleu, Todd McKeehan,
and Robert Williams were killed by gunfire from the
compound. Pet. App. 4a; Gov’t C.A. Br. 28-30, 34-35, 38, 40.
After a cease-fire was negotiated, Koresh and the
Branch Davidians refused to leave the compound. Agents
of the Federal Bureau of Investigation (FBI) then sur-
rounded the compound and began negotiations with
Koresh. Koresh instructed the Branch Davidians to open
fire if the FBI agents attempted to enter the compound.
Following a 51-day stand-off, the FBI attempted to induce
Koresh and the remaining Branch Davidians to leave the
compound by injecting tear gas on the morning of April 19,
1993. Around noon, Koresh and some of his followers
ignited fires that set the compound ablaze. Although a
few Branch Davidians escaped, nearly all of the Branch
Davidians remaining in the compound died as a result of
the fire or fatal gunshot wounds. Pet. App. 4a, 68a-69a;
Gov’t C.A. Br. 42-55.
6
2. The evidence at trial showed that petitioner Castillo
retrieved his AR-15 assault rifle and joined Koresh and
several other Branch Davidians at the front doors of the
compound when the ATF agents arrived on February 28,
1993. After the gun battle began, Castillo tried to chamber
a round in his rifle, but it jammed. He then retrieved a
pistol from his room and went down the hall to another
room on the first floor. Marjorie Thomas, a Branch
Davidian who testified for the government at trial, saw
Castillo with a gun at the end of the corridor on the second
floor for a brief period of time. After the cease-fire was
declared, Castillo retrieved an AK-47 assault rifle from
the kitchen and stood guard at the kitchen door. When
ATF Agents Kenneth Chisholm and Bernadette Griffin
went into the interior courtyard to rescue an ATF agent
who had fallen off the roof, Castillo briefly pointed his rifle
at Agent Griffin. During the stand-off, Castillo stood
guard with an AK-47 assault rifle in his room on the first
floor. Pet. App. 59a-61a, 67a, 69a, 71a-72a; Gov’t C.A. Br. 15,
44-46, 65-66. Castillo escaped from the compound during
the fire on April 19, 1998. Texas Rangers later found a
hand grenade in the assault vest that Castillo had taken off ©
after he came out of the burning building. Gov’t C.A. Br.
51-52, 125.
The evidence at trial showed that petitioner Whitecliff
shot at the helicopters during the gun battle on February
28, 1993. During the stand-off, Whitecliff stood guard in
the chapel with Thomas and petitioner Branch; he was
armed with an FN-FAL .308 caliber rifle. Thomas over-
heard Whitecliff tell Branch, Castillo, and another resi-
dent that he had shot an agent during the gun battle. Pet.
App. 6la-62a, 67a, 69a, 71a; Gov’t C.A. Br. 40-41, 44-45, 64.
Whitecliff left the compound during the stand-off on March
19, 1993. Gov’t C.A. Br. 46.
The evidence at trial showed that petitioner Branch
shot a rifle at the ATF agents from rooms on the second
floor of the compound during the gun battle on Febru-
ary 28, 1993. Victorine Hollingsworth, a second Branch
Te ME ee rr
7
Davidian who testified for the government at trial, heard
Branch exclaim during the gun battle that “He nearly got
me and I got one.” Kathryn Schroeder, a third Branch
Davidian who testified for the government at trial, heard
Branch running around and yelling in the hallway on the
first floor during the gun battle. During the stand-off,
Branch stood guard in the chapel in the compound with
Thomas and petitioner Whitecliff; he was armed with an
M-1A .308 caliber rifle. Thomas overheard Branch tell
Whitecliff, Castillo, and another resident that he had shot
an agent during the gun battle. Pet. App. 58a-59a, 67a, 69a,
71a; Gov’t C.A. Br. 31, 38, 40, 44-46, 63-64, 123-124. Branch
left the compound during the stand-off on March 19, 1993.
Gov’t C.A. Br. 46.
The evidence at trial showed that petitioner Avraam
fired a .50 caliber rifle at the ATF agents from the gymna-
sium on the right rear side of the compound during the
gun battle on February 28, 1993. During the stand-off,
Avraam stood guard in the areas above the gym and chapel;
he was armed with a .50 caliber rifle. He escaped from the
compound during the fire on April 19, 1993. After his
arrest, Avraam told a fellow inmate that he had a fully
automatic weapon while he was at the compound. Pet. App.
57a-58a, 67a, 69a, 72a; Gov’t C.A. Br. 44-45, 51-52, 66, 124.
The evidence at trial showed that petitioner Craddock
saw Koresh meeting with undercover ATF Agent Rod-
riguez on the morning of February 28, 1993, and he over-
heard Koresh saying, “They’re coming, they’re coming.”
Shortly afterwards, another Branch Davidian told Crad-
dock that 75 ATF agents had arrived at the airport and
that there might be a raid. Craddock returned to his room
on the first floor, changed into his black clothing, and
retrieved his AR-15 assault rifle. Craddock then went to
the kitchen and loaded his 9 mm. handgun with ammuni-
tion, but Koresh told him to stay in his room. During the
stand-off, Craddock stood guard in Schroeder’s bedroom on
the first floor; he carried an AR-15 assault rifle and wore a
holster with his 9 mm. pistol. Craddock escaped from the
8
compound during the fire on April 19, 1998. He admitted to
the Texas Rangers that Koresh had given him a hand
grenade on the morning of the fire. After the fire, Texas
Rangers found a live hand grenade in the cinder block
building in which Craddock had taken refuge when he
escaped from the compound. Pet. App. 68a, 69a; Gov’t C.A.
Br. 12-14, 44-45, 51, 53, 72, 125.
The evidence at trial showed that petitioner Fatta pur-
chased semiautomatic firearms, magazines, ammunition,
and other equipment for the Branch Davidians during the
two years before the ATF raid. He also participated in the
conversion of semiautomatic firearms into fully automatic
firearms. Some of the gun parts, conversion kits, tools,
and other equipment used to convert the firearms were
shipped to the address of the Mag Bag, a garage located a
short distance from the compound. In February 1992,
Fatta obtained a Texas sales tax permit for the Mag Bag;
on the application he listed himself as the owner
and indicated that gun and firearm accessories were the
primary product of the Mag Bag. After the fire on April
19, 1993, Texas Rangers found two firearms purchased by
Fatta that had been converted to fully automatic firearms.
They also found a package of Fatta’s personal checks in
the machine room in the compound where the Branch
Davidians had converted firearms and manufactured hand
grenades. Pet. App. 75a-76a; Gov’t C.A. Br. 6-9, 55-56, 76-
77. Fatta was at a gun show on February 28, 1993, when
the ATF agents raided the compound. An arrest warrant
was issued for Fatta in early March 1993, and Fatta
became a fugitive. He surrendered to the Texas Rangers
several weeks later in Houston, Texas. Gov’t C.A. Br. 42.
3. Counts 9 and 10 of the indictment charged petitioner
Fatta with conspiring to possess machineguns, in viola-
tion of 18 U.S.C. 371, and with possessing machineguns, in
violation of 18 U.S.C. 922(0). Before trial, Fatta moved
to dismiss Counts 9 and 10 on the ground that Congress
had exceeded its power under the Commerce Clause in
enacting 18 U.S.C. 922(0). The district court denied the
ccna’
9
motion. Pet. App. 7a; 96-7265 Pet. App. 121a-122a. At trial,
the jury found Fatta guilty on both counts. Pet. App. 6a;
Tr. 7406-7407.
4. Count 2 of the indictment charged all six petitioners
with murdering federal officers, in violation of 18 U.S.C.
1111 and 1114.” At trial, the district court charged the
jury that one of the essential elements of that offense was
that the defendant did not act in self-defense or defense of
another. Pet. App. 8a; Jury Instructions 32.* The court
then instructed the jury on the lesser-included offense of
voluntary manslaughter under 18 U.S.C. 1112 and 1114.
Jury Instructions 44-46. In setting forth the elements of
that offense, the court did not instruct the jury that the
government was required to prove beyond a reasonable
doubt that a defendant did not act in self-defense or defense
of another. Jd. at 44. Petitioners objected to the omission
of an instruction that the government was required to
prove, as one of the elements of voluntary manslaughter,
that a defendant did not act in self-defense or defense of
another. Pet. App. 8a; Tr. 7017.4 The jury found peti-
2 Section 1114 provides that whoever kills or attempts to kill desig-
nated officers and employees of the United States engaged in or on
account of their official duties “shall be punished, in the case of murder,
as provided under section 1111, or, in the case of manslaughter, as
provided under section 1112.” ATF agents are protected by Section
1114. See United States v. Nabors, 901 F.2d 1351, 1356-1357 (6th Cir.),
cert. denied, 498 U.S. 871 (1990); United States v. Alvarez, 755 F.2d 830,
840-841 (11th Cir.), cert. denied, 474 U.S. 905 (1985), 482 U.S. 908 (1987).
3 The district court’s jury instructions were not fully transcribed as
part of the trial transcript. Tr. 7043-7044, 7364-7366. The court’s writ-
ten jury instructions that were distributed and read to the jury were
filed and made part of the record.
4 At the jury charge conference, petitioners asked the district court
to instruct the jury that self-defense is a defense to voluntary man-
slaughter, and the court responded that it would “give that some
thought.” Tr. 6950-6952, 7000-7001. After the court revised the jury
charge, petitioners objected to the omission of a self-defense instruction
with respect to the offense of voluntary manslaughter. The court did
aii i |
10
tioners Castillo, Whitecliff, Branch, and Avraam guilty on
Count 2 of the lesser-included offense of voluntary man-
slaughter. Pet. App. 6a; Tr. 7404-7405.
5. Count 1 of the indictment charged petitioners with
conspiring to murder federal officers, in violation of 18
U.S.C. 1117. Count 3 charged each petitioner with using
and carrying a firearm during and in relation to a crime of
violence, in violation of 18 U.S.C. 924(c)(1). The predicate
crime of violence alleged in Count 3 was the conspiracy to
murder federal officers charged in Count 1. 96-7227 Pet.
App. 176a. The court instructed the jury that an element
of the Section 924(c)(1) offense was “[t]hat the Defendant
under consideration committed the crime alleged in Count
One of the Indictment.” Jd. at 177a. The jury was further
instructed that “[t]he term ‘firearm’ means any weapon
which will or is designed to or may readily be converted
to expel a projectile by the action of an explosive.” bid.
The jury found petitioners Castillo, Whitecliff, Branch,
Avraam, and Craddock not guilty on Count 1 but guilty on
Count 3. Pet. App. 6a; Tr. 7405-7406.
6. OnJune 16 and 17, 1994 the district court held a sen-
tencing hearing. At the hearing, the court read into the
record its written sentencing findings. Pet. App. 119a-
141a; 6/16-17/94 Tr. 200-219. The court concluded that peti-
tioners Castillo, Whitecliff, Branch, Avraam, and Crad-
dock, who were each convicted on Count 3 of using and
carrying a firearm during and in relation to the conspir-
acy to murder federal officers charged in Count 1, were
subject to enhanced 30-year sentences under 18 U.S.C.
924(c)(1).° Pet. App. 121a-134a. Relying on the “fortress
not respond to the objection. Pet. App. 8a; Tr. 7017. The court read
most of the jury charge, including the instructions on the elements of
the offenses, to the jury before closing arguments, and no further
objections were raised at that time. Tr. 7043-7044.
° Under Section 924(c)(1), a defendant convicted of using or carrying
a firearm during and in relation to a crime of violence shall be sen-
tenced to five years’ imprisonment. Section 924(c)(1) further provides,
however, that, “if the firearm is a machinegun, or a destructive device,
RTT eT eee nieeenr ow |
11
theory,” the district court found that “[t]he evidence
established the existence of not only a figurative but a
literal fortress, manned by each of the [petitioners]
convicted on this count.” /d. at 123a-124a. Based on that
evidence, the court concluded that “feJach [petitioner]
either had actual or constructive possession of the numer-
ous fully automatic weapons and hand grenades present in
the Compound before February 28, 1993 and through the 51
day siege.” Jd. at 124a. Alternatively, the court concluded
that each defendant could be held accountable for a co-
conspirator’s use of an enhanced weapon under the prin-
ciples of Pinkerton v. United States, 328 U.S. 640 (1946).
Pet. App. 125a-127a. The court found it “clear that the use
of fully automatic weapons, and probably grenades and
silencers, was foreseeable and foreseen by all of the [peti-
tioners], who were taught, who planned, and who practiced
for just such an outcome.” Z/d. at 127a.
The district court rejected petitioners’ arguments that
imposition of the enhanced 30-year sentence for using
or carrying machineguns required a jury finding as to
the type of firearm used or carried. Pet. App. 127a-134a.
or is equipped with a firearm silencer or firearm muffler,” the defen-
dant shall be sentenced to 30 years’ imprisonment.
The term “firearm” is defined to mean “(A) any weapon (including a
starter gun) which will or is designed to or may readily be converted to
expel a projectile by the action of an explosive; (B) the frame or re-
ceiver of any such weapon; (C) any firearm muffler or firearm silencer;
or (D) any destructive device. Such term does not include an antique
firearm.” 18 U.S.C. 921(a)(3).
Section 921(a)(23) provides that “(t]he term ‘machinegun’ has the
meaning given such term in section 5845(b) of the National Firearms
Act (26 U.S.C. 5845(b)).”. 18 U.S.C. 921(a)(23). That Section defines
“machinegun” to include “any weapon which shoots, is designed to
shoot, or can be readily restored to shoot, automatically more than one
shot, without manual reloading, by a single function of the trigger.”
The term “destructive device” is defined in 18 U.S.C. 921(a)(4). The
terms “firearm silencer” and “firearm muffler” are defined in 18 U.S.C.
921(a)(24).
12
Based on “the plain language of the statute, and the
Supreme Court’s determination of the elements” of the
offense in Smith v. United States, 508 U.S. 223, 227-228
(1993), the court concluded that “the type of weapon is not
an element of the offense.” Pet. App. 129a-130a.
Petitioners Castillo, Whitecliff, Branch, and Avraam
were each sentenced to 30 years’ imprisonment on Count
3, to run‘consecutively to their ten-year sentences on
Count 2. Pet. App. 78a, 144a; 96-1028 Pet. App. 6a; 96-7227
Pet. App. 146a, 156a. The district court concluded that
Craddock was also subject to a 30-year sentence on Count
3, but it “depart{ed] downward” from the sentence required
by the statute and sentenced Craddock to ten years’ im-
prisonment on Count 3, to run consecutively to his ten-
year sentence on Count 7.° Pet. App. 78a; 96-7227 Pet. App.
166a; 6/16-17/94 Tr. 230-232.
7. The court of appeals affirmed petitioners’ convic-
tions on all counts, vacated petitioners’ sentences on
Count 3 and remanded for resentencing, and affirmed peti-
tioners’ sentences on the other counts. Pet. App. la-116a.
a. The court rejected petitioner Fatta’s contention
that his convictions on Counts 9 and 10 were invalid be-
cause Congress had exceeded its power under the Com-
merce Clause in enacting 18 U.S.C. 922(0). Pet. App. 7a.
Noting that the issue was pending before the en banc court
in United States v. Kirk, 70 F.3d 791 (1995), reh’g en banc
granted, 78 F.3d 160 (5th Cir. 1996), the court observed
that “{tJhe en banc court’s resolution of this issue will
govern the ultimate validity of Fatta’s convictions on
Counts 9 and 10.” Pet. App. 7a. The court upheld Fatta’s
convictions “[uJnder pre-Kirk caselaw now binding this
panel,” but decided to “hold the mandate pending decision
in Kirk.” Ibid."
6 The government did not file a timely notice of appeal with respect
to Craddock’s sentence on Count 3.
7 Subsequent to the court of appeals’ decision in the instant cases,
an equally divided en banc court in Kirk affirmed the judgment of the
eerie
13
b. The court of appeals rejected the contention of peti-
tioners Castillo, Whitecliff, Branch, and Avraam that they
were entitled to an instruction on self-defense and defense
of another with respect to the lesser-included offense of
voluntary manslaughter under Count 2. Pet. App. 8a-30a.
It observed that “a defendant is entitled to an instruction
as to any recognized defense for which there exists evi-
dence sufficient for a reasonable jury to find in his favor.”
Id. at 8a (quoting Mathews v. United States, 485 U.S. 58,
63 (1988)).
Applying that standard, the court “review[ed] the record
cognizant that the ‘merest scintilla of evidence’ in the
defendant’s favor does not warrant a jury instruction
regarding an affirmative defense for which the defendant
bears the initial burden of production.” Pet. App. 9a. It
explained that “[a] district court cannot refuse to give an
instruction for which there is sufficient evidence in the
record for a reasonable juror to harbor a reasonable doubt
that the defendant did not act in self defense, but the
district court is not required ‘to put the case to the jury
on a basis that “essentially indulges and even encourages
speculations.”’” Jd. at 10a (quoting United States v.
Collins, 690 F.2d 431, 438 (5th Cir. 1982), cert. denied, 460
US. 1046 (1983)). The court also noted that the district
court’s decision to give a self-defense instruction with re-
spect to the murder charge “seed[ed] no right to a similar
plea of self-defense to voluntary manslaughter.” Jd. at 16a.
To justify a self-defense instruction in this case, the court
concluded, “[tJhere must be sufficient evidence from which
a reasonable juror might infer, at a minimum, either that
1) [petitioners] did not know the ATF agents’ identity, or
that 2) the ATF agents’ use of force, viewed from the per-
spective of a reasonable officer at the scene, was objec-
tively unreasonable under the circumstances.” Jbid. (cita-
tion omitted).
district court upholding the constitutionality of Section 922(0). See
United States v. Kirk, 105 F.3d 997 (5th Cir. 1997).
14
The court of appeals held that “the evidence did not
require the proposed self-defense instruction.” Pet. App.
16a. “Viewing the record as a whole and in the light most
favorable to [petitioners],” the court was “not persuaded
that a reasonable juror could harbor a reasonable doubt
that [petitioners] knew the approaching ATF agents’
identity.” Jd. at 19a. The court found that “[tJhe record
also belies the contention that the ATF agents used exces-
sive force.” Jd. at 20a. The court explained that “(t]he
evidence does not permit any reasonable inference but that
the Davidians fired the first shots that morning.” Ibid.
The court also pointed out that “evidence that the ATF
fired first without evidence that such fire was indiscrimi-
nate or otherwise excessive [would] not warrant a self-
defense instruction.” Jd. at 27a. It found “no evidence that
any of the [petitioners] either came under indiscriminate,
unprovoked fire or knew that such fire was taking place.”
Id. at 28a. The court rejected petitioners’ claim that
excessive force was inherent in the nature of the ATF
raid, noting that “a citizen may not initiate a firefight
solely on the ground that the police sent too many well-
armed officers to arrest him.” Jd. at 29a-30a. The court
accordingly concluded “that the district court did not err
in refusing to instruct the jury on self-defense and the
defense of another with regard to the voluntary man-
slaughter charge.” Jd. at 30a.
c. The court of appeals rejected the contention of peti-
tioners Castillo, Whitecliff, Branch, Avraam, and Crad-
dock that their convictions on Count 3 for using and carry-
ing a firearm during and in relation to a crime of violence
were invalid because the jury had acquitted them on Count
1 of the predicate crime of conspiring to murder federal
agents. Pet. App. 65a. The court explained that “[i]t is
only the fact of the offense, and not a conviction, that is
need[ed] to establish the required predicate.” Ibid.
(quoting United States v. Munoz-Fabeia, 896 F.2d 908, 911
(5th Cir.), cert. denied, 498 U.S. 824 (1990)). The court ac-
knowledged that petitioners’ Section 924(c)(1) convictions
15
could not stand if there was insufficient evidence to sup-
port a jury finding that petitioners conspired to murder
federal officers. Jd. at 64a. The court concluded, however,
that “[tJhe record is replete with evidence of a conspiracy
to murder federal agents and each individual [petitioner’s]
me ibership in that conspiracy.” Jd. at 65a.
d The court of appeals rejected the contention of peti-
tioners Castillo, Whitecliff, Branch, Avraam, and Crad-
dock that the district court had improperly imposed en-
hanced 30-year sentences under Section 924(c)(1) based on
the use of machineguns by other members of the conspir-
acy. Pet. App. 78a-85a. The court observed that “[t]he
validity of the district court’s action turns upon whether
§ 924(c)(1)’s machinegun provision creates a separate, in-
dependent offense or is a sentence-enhancement provi-
sion.” Jd. at 80a. Based on the statute’s structure and
legislative history, the court ruled that “the machinegun
clause of § 924(c)(1) is a sentence-enhancement provision.”
Id. at 81a. It therefore concluded that “(t]he Government
need not charge in the indictment nor must the jury find
as part of its verdict the particular type of firearm used or
carried by the defendant.” /d. at 85a.
The court of appeals nevertheless vacated petitioners’
enhanced sentences on Count 3 and remanded for resen-
tencing. Pet. App. 85a-86a. It observed that the district
court had made no findings as to whether machineguns had
been “actively employed” within the meaning of Bailey v.
United States, 116 S. Ct. 501 (1995), which was decided
during the pendency of petitioners’ appeal. Pet. App. 86a.
The court concluded that “[w]Jith Bailey the district court
must take another look and enter its findings regarding
‘active employment.’” Jbid. The court explained that,
“{sJhould the district court find on remand that mem-
bers of the conspiracy actively employed machineguns, it
is free to reimpose the 30-year sentence.” Jbid. The
court also noted that “the district court should consider
whether [petitioners] actively employed [an enhanced]
16
weapon during and in relation to the conspiracy to murder
federal agents.” Jbid.®
District Judge Schwarzer, sitting by designation, dis-
sented. Pet. App. 98a-116a. He concluded that the district
court had abused its discretion in failing to give an in-
struction on self-defense and defense of another with
respect to the lesser-included offense of voluntary man-
slaughter under Count 2. Jd. at 98a-109a. District Judge
Schwarzer also concluded that the convictions of petition-
ers Castillo, Whitecliff, Branch, Avraam, and Cvaddock on
Count 3 for using and carrying a firearm during and in
relation to a crime of violence should be reversed because
the evidence at trial was insufficient to show that those
petitioners had committed the predicate crime of conspir-
ing to murder federal agents. Id. at 114a-116a.°
8. The court of appeals denied petitioners’ petition for
rehearing and rejected their suggestion for rehearing en
bane. The panel expressly rejected the claim that its
decision upholding petitioners’ convictions under Section
924(c)(1) on Count 3 despite their acquittals on Count 1
conflicted with United States v. Lucien, 61 F.3d 366 (5th
Cir. 1995). Pet. App. 117a-118a. The panel concluded that
8 The court of appeals also rejected claims by petitioners that the
district court had improperly accepted the jury’s guilty verdict on
Count 3 (Pet. App. 3la-38a); that the district court had abused its
discretion in sua sponte empaneling an anonymous jury (id. at 38a-44a);
that the district court had abused its discretion by admitting into
evidence some of petitioner Castillo’s post-arrest statements but ex-
cluding others (id. at 45a-56a); that the evidence was insufficient to
sustain petitioners’ convictions on each count (id. at 56a-78a); and that
the district court had improperly calculated their sentences under the
Sentencing Guidelines (id. at 86a-98a). Petitioners do not renew any of
those claims here.
9 District Judge Schwarzer also concluded that the district court
had abused its discretion in excluding from evidence a portion of peti-
tioner Castillo’s post-arrest statement. Pet. App. 109a-114a. Castillo
does not renew that claim here.
17
petitioners’ “remaining contentions [were] also without
merit.” Jd. at 118a.
ARGUMENT
1. Petitioners Castillo, Whitecliff, Branch, Avraam,
and Craddock contend (96-989 Pet. 24-25; 96-1028 Pet. 21-
24; 96-7227 Pet. 5-12) that their convictions on Count 3 for
using or carrying a firearm during and in relation to a
crime of violence under 18 U.S.C. 924(c)(1) are invalid
because the jury acquitted them of the predicate crime of
violence charged in Count 1. That contention is without
merit and does not warrant review by this Court.
a. The courts of appeals uniformly agree that a defen-
dant need not be charged with or convicted of the predicate
crime in order to be convicted under Section 924(c)(1) of
using or carrying a firearm during and in relation to that
predicate crime. See, e.g., United States v. Bracy, 67 F.3d
1421, 1430 (9th Cir. 1995); United States v. Anderson, 59
F.3d 1823, 1326 (D.C. Cir.) (en banc), cert. denied, 116 S. Ct.
542 (1995); United States v. Ospina, 18 F.3d 1332, 1556 (6th
Cir.), cert. denied, 512 U.S. 1226 (1994); United States v.
Thomas, 12 F.3d 1350, 1362-1363 (5th Cir.), cert. denied, 511
U.S. 1095, 1114 (1994); United States v. Frayer, 9 F.3d
1367, 1372 (8th Cir. 1993), cert. denied, 115 S. Ct. 77 (1994);
United States v. Hill, 971 F.2d 1461, 1464 (10th Cir. 1992)
(en banc). Rather, “it is only the fact of the offense, and
not a conviction, that is needed to establish the required
predicate [crime under Section 924(c)(1)].” United States
v. Munoz-Fabela, 896 F.2d 908, 911 (5th Cir.), cert. denied,
498 U.S. 824 (1990). That conclusion follows from the text
of Section 924(c)(1).
Section 924(c)(1) makes it an offense when a person,
“during and in relation to any crime of violence or drug
trafficking crime * * * for which he may be prosecuted in
a court of the United States, uses or carries a firearm.”
Thus, the language of the statute applies whenever a de-
fendant “may be prosecuted” for covered predicate crimes;
application of the statute is not limited to predicate crimes
y 6
18
for which the defendant has been convicted. See United
States v. Ospina, 18 F.3d at 1335-1336.
As petitioners point out (96-989 Pet. 24; 96-1028 Pet. 23;
96-7227 Pet. 5), Section 924(c)(1) further provides that any
punishment imposed thereunder “shall [be] in addition to
the punishment provided for such crime of violence or drug
trafficking crime,” and that “the term of imprisonment
imposed under this subsection [shall not] run concur-
rently with any other term of imprisonment including
that imposed for the crime of violence or drug trafficking
crime in which the firearm was used or carried.” Con-
trary to petitioners’ contention, however, neither of those
sentencing provisions compels the conclusion that a de
fendant must be convicted of the predicate crime in or-
der to be convicted under Section 924(c)(1). Rather, those
provisions simply make clear that where a defendant is
charged with and convicted of the predicate crime, his
sentence under Section 924(c)(1) must run consecutively
to the sentence imposed for the predicate offense. See
United States v. Gonzalez, No. 95-1605 (Mar. 3, 1997), slip
op. 8 (“[W]Jhen a defendant violates § 924(c), his sentencing
enhancement under that statute must run consecutively
to all other prison terms.”).
b. The fact that petitioners were charged with and
acquitted of the predicate offense does not alter the
analysis. When a jury convicts a defendant under Section
924(c)(1) but acquits him of the predicate crime, the jury
has simply returned inconsistent verdicts.” This Court
made clear in United States v. Powell, 469 U.S. 57, 65
” The jury in the instant case was instructed that it could convict
petitioners on the Section 924(c1) charges only if it found that the
government had proved beyond a reasonable douot that petitioners had
“committed the crime alleged in Count One of the Indictment.” 96-7227
Pet. App. 177a.
19
(1984), that such inconsistency does not warrant reversal
of an otherwise valid conviction:
[I}nconsistent verdicts—even verdicts that acquit on a
predicate offense while convicting on the compound of-
fense—should not necessarily be interpreted as a wind-
fall to the Government at the defendant’s expense. It
is equally possible that the jury, convinced of guilt,
properly reached its conclusion on the compound
offense, and then through mistake, compromise or
lenity, arrived at an inconsistent conclusion on the
lesser offense.
The Court further explained that “a criminal defendant
already is afforded protection against jury irrationality or
error by the independent review of the sufficiency of the
evidence undertaken by the trial and appellate courts.”
Id. at 67. Thus, a defendant’s conviction under Section
924(c)(1) is valid so long as the government presented
sufficient evidence at trial to prove the predicate offense
as an element of the Section 924(c)(1) violation, even when
the defendant is acquitted of the predicate crime. See
United States v. Bracy, 67 F.3d at 1430-1431; United States
v. Frayer, 9 F.3d at 1372; United States v. Ruiz, 986 F.2d
905, 911 (5th Cir.), cert. denied, 510 U.S. 848 (1993); United
States v. Laing, 889 F.2d 281, 288-289 (D.C. Cir. 1989), cert.
denied, 494 U.S. 1008, 1069 (1990).
After reviewing the record in this case, the court of
appeals ruled that the evidence was sufficient to support a
finding that petitioners committed the predicate crime of
conspiring to murder federal agents. Pet. App. 64a-70a.
Petitioners do not directly challenge that ruling here.”
ll Petitioners assert (96-989 Pet. 25 n.13; 96-7227 Pet. 9-10) that the
court of appeals’ decision conflicts with United States v. Lucien, 61
F.3d 366 (5th Cir. 1995). In that case, the jury acquitted the defendant
on one drug count, but convicted him on a second drug count and on a
Section 924(c)(1) count. The court of appeals reversed the defendant's
conviction on the second drug count because the district court had failed
to give a lesser-included-offense instruction at trial. Id. at 373-377. The
20
Accordingly, they were properly convicted under Section
924(c)(1).
2. Petitioners Castillo, Whitecliff, Branch, Avraam,
and Craddock contend (96-989 Pet. 5-20, 25-30; 96-1028 Pet.
12-21; 96-7227 Pet. 13-26) that the type of firearm used or
carried is an element of the Section 924(c)(1) offense that
must be submitted to the jury rather than a sentencing
enhancement factor that may be determined by the court.
The court of appeals correctly rejected that contention.
Although the court’s decision conflicts with a decision of
the Ninth Circuit, review by this Court is not warranted
at the present time in light of the current interlocutory
posture of the case.
a. In pertinent part, Section 924(c)(1) provides:
Whoever, during and in relation to any crime of vio-
lence * * *, uses or carries a firearm, shall, in addi-
tion to the punishment provided for such crime of vio-
lence * * *, be sentenced to imprisonment for five
years, and if the firearm is a short-barreled rifle,
short-barreled shotgun, or semiautomatic assault wea-
pon, to imprisonment for ten years, and if the firearm
is a machinegun, or a destructive device, or is equipped
with a firearm silencer or firearm muffler, to impris-
onment for thirty years.
As this Court has observed, the statute requires the gov-
ernment to prove (1) “that the defendant ‘use[d] or car-
rie[d] a firearm,’” and (2) “that the use or carrying was
‘during or in relation to’ a ‘crime of violence or drug
court then summarily concluded that the defendant’s conviction on the
Section 924(c)(1) count “cannot stand.” Jd. at 377. In denying the
petitions for rehearing in this case, the court of appeals correctly
distinguished Lucien on the ground that it “presented a factually
different situation where instructional error in a predicate offense
infected the conviction under 18 U.S.C. § 924(c)(1).” Pet. App. 117a-
118a. In any event, even if the Fifth Circuit’s decision in this case
conflicted with its decision in Lucien, an intracircuit conflict would not
warrant this Court’s review. Wisniewski v. United States, 353 U.S.
901, 902 (1957) (per curiam).
21
trafficking crime.’” Smith v. United States, 508 U.S. 223,
227-228 (1993). In light of the language and structure of
the statute, the type of firearm used or carried is not an
essential element of the offense; it is instead a factor that
determines the length of the sentence. Cf. Bailey v.
United States, 116S. Ct. 501, 505 (1995) (“Section 924(c)(1)
requires the imposition of specified penalties if the defen-
dant, ‘during and in relation to any crime of violence or
drug trafficking crime . . . uses or carries a firearm.’”);
Smith v. United States, 508 U.S. at 227 (“Section 924(c)(1)
requires the imposition of specified penalties if the defen-
dant, ‘during and in relation to any crime of violence or
drug trafficking crime[,] uses or carries a firearm.’ aa Sa
2 Petitioners’ reliance (96-989 Pet. 9-10; 96-1028 Pet. 14) on Deal v.
United States, 508 U.S. 129 (1993), is misplaced. The issue in Deal was
whether multiple convictions under Section 924(c)(1) in a single pro-
ceeding triggered the enhanced sentences in the second sentence of Sec-
tion 924(c)(1), which provides stiffer sentences “[iJn the case of [a]
second or subsequent conviction.” See 508 U.S. at 131. This Court con-
cluded that the term “conviction” in that context “refers to the finding
of guilt by a judge or jury that necessarily precedes the entry of a final
judgment of conviction.” Id. at 132. Since the first sentence of Section
924(c)\(1) makes no reference to a “conviction,” this Court’s ruling in
Deal has no bearing on the issue in this case.
Nor is there merit in petitioner Castillo’s claim (96-989 Pet. 25-28)
that the court of appeals’ decision violates his constitutional rights to
be charged by indictment and to be tried by a jury. An indictment
charging a violation of Section 924(c)(1) satisfies the Fifth Amendment
when it alleges the essential elements of the offense, namely, that a
defendant used or carried a firearm during and in relation to a crime of
violence or a drug trafficking crime. See Russell v. United States, 369
U.S. 749, 763-764 (1962). Treating the type of firearm used or carried as
a sentencing enhancement factor does not deprive a defendant of his
Sixth Amendment right to have the jury determine every essential
element of the offense. See McMillan v. Pennsylvania, 477 U.S. 79, 93
(1986) (“{W]e need only note that there is no Sixth Amendment right to
jury sentencing, even where the sentence turns on specific findings of
fact.”).
22
b. We acknowledge, however, that the court of appeals’
decision in the instant case conflicts with a decision of the
Ninth Circuit. That court has held that, “{iJf the 30-year
consecutive sentence is to be imposed under section
924(c)(1), the fully automatic character of the firearm
must be found by the jury; that is to say, it is an element of
the crime.” United States v. Alerta, 96 F.3d 1230, 1235
(1996). Other courts have also indicated that the jury
must determine which type of firearm was used or carried
under Section 924(c)(1). In United States v. Melvin, 27
F.3d 710, 714 (1994), the First Circuit noted with apparent
approval the government’s concession in that case “that a
defendant found guilty of violating § 924(c) may be sen-
tenced to a thirty-year term only if the jury specifically
identifies a machine gun or silencer as the firearm sup-
porting the conviction.” The Sixth Circuit has also stated
in dicta that imposition of the enhanced 10- and 30-year
penalties under Section 924(c)(1) requires a jury finding as
to the type of firearm used or carried. See United States
v. Sims, 975 F.2d 1225, 1235-1236 (1992), cert. denied, 507
U.S. 832, 998, 999 (1993).
In light of the current interlocutory posture of the case,
however, review by this Court is not warranted at the
present time. The court of appeals vacated each peti-
tioner’s sentence under Section 924(c)(1) and remanded the
case for further proceedings in the district court to deter-
mine whether members of the conspiracy actively em-
ployed machineguns. Pet. App. 86a, 98a. It thus remains
to be seen whether petitioners will be sentenced under the
machinegun provisions of Section 924(c)(1). After peti-
tioners have been resentenced on Count 3, they will have a
further opportunity to contest their sentences in the
court of appeals and, if necessary, in this Court. Accord-
ingly, review by this Court would be premature at the
present time.
3. Petitioners Castillo, Branch, Avraam, and Craddock
contend (96-989 Pet. 20-24; 96-7227 Pet. 27-30) that the dis-
trict court erred in imposing enhanced 30-year sentences
23
under Section 924(c)(1) based on their co-conspirators’ use
of machineguns, firearms with silencers, and hand gre-
nades during the conspiracy to murder federal agents.
The court of appeals’ resolution of that issue is correct
and does not conflict with any decision of this Court or of
another court of appeals. Because the court of appeals re-
manded for further findings and for resentencing, more-
over, review by this Court would be premature at the pres-
ent time.
In the circumstances of this case, the court of appeals
correctly concluded that use of enhanced weapons by peti-
tioners’ co-conspirators would be a sufficient basis for im-
position of enhanced 30-year sentences on Count 3. The
predicate crime of violence charged in Count 3 was a con-
spiracy to murder federal officers, in violation of 18 U.S.C.
1114 and 1117. See 96-7227 Pet. App. 176a. By convicting
petitioners on Count 3, the jury necessarily found that
petitioners were members of a conspiracy to murder fed-
eral agents. Under the doctrine of Pinkerton v. United
States, 328 U.S. 640, 645-648 (1946), a member of a conspir-
acy may be held responsible for the acts committed by a co-
conspirator in furtherance of the conspiracy.” As the
13 The Pinkerton doctrine is usually applied under Section 924(c)(")
to permit a jury to find a defendant guilty of violating that provision
based on a co-conspirator’s use of a firearm. See, e.g., United States v.
Myers, 102 F.3d 227, 237-238 (6th Cir. 1996); United States v. Dean, 59
F.3d 1479, 1489-1490 (5th Cir. 1995), cert. denied, 146 S. Ct. 748, 794
(1996); United States v. Williams, 31 F.3d 522, 526 (7th Cir. 1994). In
this case, independent evidence established that petitioners had them-
selves used firearms during the gun battle with the ATF agents on
February 28, 1993. Pet. App. 7la-72a. The vaiidity of petitioners’ con-
victions is therefore not dependent on application of the Pinkerton doc-
trine. The question instead is whether the district court, in sentencing
petitioners on the Section 924(c)(1) count, may hold petitioners account-
able for the types of weapons used by other members of the conspiracy.
Petitioners offer no reason why Pinkerton principles should not ap-
ply in that context. Cf. Sentencing Guidelines § 1B1.3(a)(1)(B) (defining
conduct for which the defendant is held accountable at sentencing to
include “in the case of a jointly undertaken criminal activity * * * all
24
court of appeals noted, “there is evidence from which it
could be found that machineguns and other enhancing wea-
pons were used by one or more members of the conspiracy
in the firefight of February 28.” Pet. App. 86a. The court
of appeals therefore properly concluded that, “[sJhould the
district court find on remand that members of the con-
spiracy actively employed machineguns, it is free to reim-
pose the 30-year sentence.” Jbid.
Contrary to petitioner Castillo’s claim (96-989 Pet. 20-
24), the court of appeals’ decision does not conflict with
Bailey v. United States, 116 S. Ct. 501 (1995). At sen-
tencing, the district court ruled that petitioners were
subject to enhanced 30-year sentences on Count 3 for two
reasons. Relying on the “fortress theory,” the district
court first concluded that “[eJach [petitioner] either had
actual or constructive possession of the numerous fully
automatic weapons and hand grenades present in the
Compound before February 28, 1993 and through the 51
day siege.” Pet. App. 124a. Alternatively, the court con-
cluded that each petitioner could be held accountable for a
co-conspirator’s use of an enhanced weapon under the
Pinkerton doctrine. Id. at 125a-127a.
After petitioners were sentenced, this Court decided in
Bailey that a conviction for using a firearm under Section
924(c)(1) “requires evidence sufficient to show an active
employment of the firearm by the defendant.” 1165S. Ct. at
505." As the court of appeals correctly observed, the
district court’s finding “that each [petitioner] had actual
or constructive possession of an enhanced weapon” was
insufficient under Bailey to establish that petitioners had
“used” an enhanced weapon. Pet. App. 86a. The propriety
of petitioners’ sentences under Pinkerton principles de-
reasonably foreseeable acts and omissions of others in furtherance of
the jointly undertaken criminal activity”).
4 The court of appeals held that the evidence at trial in this case
was sufficient to show that each petitioner “actively employed” a
firearm within the meaning of Bailey. Pet. App. 7la-72a. None of the
petitioners challenges that holding in this Court.
25
pends on whether machineguns or other enhanced weapons
were “used,” within the meaning of Section 924(c)(1) (as
that term was construed in Bailey) by other members of
the conspiracy. Jbid. The court of appeals correctly
remanded the case to the district court to determine
whether any such active use occurred. The court of
appeals also directed the district court to consider on
remand “whether [petitioners] actively employed [an en-
hancing] weapon during and in relation to the conspiracy
to murder federal agents.” bid.
Thus, petitioners’ challenge to the application of the
Pinkerton doctrine—like their other challenge to their
sentences on Count 3—is not presently ripe for review. If
the district court on remand applies Pinkerton in sen-
tencing them, they will have an opportunity to challenge
their sentences in the court of appeals and, if necessary, in
this Court. Ifthe district court concludes, however, that
none of petitioners’ co-conspirators actively employed
machineguns or other enhanced weapons in furtherance of
the conspiracy, the Pinkerton doctrine will be inapplicable
to this case. Conversely, if the district court determines
on remand that petitioners themselves used or carried
machineguns or other firearms requiring an enhanced
sentence under Section 924(c)(1), petitioners will be sub-
ject to enhanced 30-year sentences on that basis, irrespec-
tive of their co-conspirators’ use of such weapons. In
those events, questions concerning the proper scope and
application of the Pinkerton doctrine would ultimately be
irrelevant to petitioners’ sentences. Review by this Court
would therefore be premature at the present time.
4. Petitioner Whitecliff contends (96-1028 Pet. 9-12)
that the district court erred in failing to instruct the jury
that self-defense or the defense of others was a defense to
the voluntary manslaughter charge. The court of appeals
correctly rejected that contention, and it does not warrant
further review.
a. In-United States v. Feola, 420 U.S. 671, 679, 684
(1975), this Court noted that 18 U.S.C. 1114, which prohi-
26
bits the killing of federal officers, and its counterpart, 18
U.S.C. 111, which prohibits assaults on federal officers,
were enacted to give “maximum protection to federal of-
ficers” and to create “the highest possible degree of cer-
tainty” that those who forcibly impede officers in the
performance of their duties will be brought to justice. The
absence of self-defense is not an element of the offenses
under those federal statutes. Rather, self-defense is an
affirmative defense on which the defendant bears the
burden of production. If the defendant produces evidence
in support of a claim of self-defense, the government bears
the burden of persuasion and must prove the absence of
self-defense beyond a reasonable doubt. United States v.
Alvarez, 755 F.2d 830, 842-843 & n.12 (llth Cir.), cert.
denied, 474 U.S. 905 (1985), 482 U.S. 908 (1987); United
States v. Johnson, 542 F.2d 230, 232 n.4 (5th Cir. 1976).
“As a general proposition,” this Court has explained, “a
defendant is entitled to an instruction as to any recognized
defense for which there exists evidence sufficient for a
reasonable jury to find in his favor.” Mathews v. United
States, 485 U.S. 58, 68 (1988). The court need not, however,
instruct the jury regarding a defense that is so lacking in
evidentiary support that no reasonable jury would accept
it. See, eg., United States v. Perez, 86 F.3d 735, 736 (7th
Cir. 1996); United States v. Streit, 962 F.2d 894, 898 (9th
Cir.), cert. denied, 506 U.S. 962 (1992) (self-defense in-
struction not required); United States v. Wagner, 834 F.2d
1474, 1486 & n.12 (9th Cir. 1987) (same); United States v.
Jackson, 726 F.2d 1466, 1468 (9th Cir. 1984) (same). Peti-
tioner Whitecliff does not challenge the court of appeals’
articulation (see Pet. App. 8a) of the governing legal
standard; he simply asserts that the court misapplied that
standard to the circumstances of the instant case. See 96-
1028 Pet. 9-12. That fact-bound challenge does not warrant
this Court’s review.
b. In any event, the court of appeals correctly held that
petitioners were not entitled to a jury instruction on self-
defense with respect to the lesser-included offense of vol-
27
untary manslaughter because there was insufficient evi-
dence at trial for a rational jury to have a reasonable doubt
that netitioners were not acting in self-defense. Pet. App.
16a-30a. The government is not required to prove a de-
fendant’s knowledge of a federal officer’s official identity
as an element of the offense under Section 111 or 1114. See
United States v. Feola, 420 U.S. at 684-686. A defendant
may raise a claim of self-defense based on an “honest mis-
take of fact,” however, if there is evidence to show that he
did not know the official identity of the officers, he reason-
ably believed that the officers posed a threat of a hostile
and imminent attack, and he used the same amount of
reasonable force to defend himself against the officers as
he would be justified in using against private citizens. See
United States v. Morton, 999 F.2d 435, 437-438 (9th Cir.
1993); United States v. Streit, 962 F.2d at 898; United
States v. Alvarez, 755 F.2d at 842-847; United States v.
Danehy, 680 F.2d 1311, 1315 (11th Cir. 1982); United States
v. Ochoa, 526 F.2d 1278, 1281-1282 (5th Cir. 1976); United
States v. Young, 464 F.2d 160, 163 (5th Cir. 1972).
In the instant case, there was no evidence at trial from
which a rational jury could have had a reasonable doubt
that petitioner Whitecliff knew the official identity of the
approaching ATF agents. The evidence showed that
Koresh and the other Branch Davidians learned of the
ATF’s planned raid 45 minutes before the agents arrived.
Pet. App. 3a, 16a-17a, 66a; Gov't C.A. Br. 12-13, 85-86.
During that period, the Branch Davidians made prepa-
rations to repel the agents. Pet. App. 66a-67a; Gov't C.A.
Br. 13-15. When they approached the compound, the agents
clearly and repeatedly identified themselves as police of-
ficers. Pet. App. 17a; Gov’t C.A. Br. 86. Moreover, most of
the agents wore uniforms with vests that “had a large,
gold ATF badge and the words ‘ATF’ and ‘Police’ inscribed
in bright yellow, inch-high letters on their fronts,” and
“* ATF’ and ‘Police’ were also emblazoned on the back of
the vests in large, yellow letters visible at a distance.”
Pet. App. 18a; Gov't C.A. Br. 86. Based on that evidence,
28
the court of appeals correctly concluded that “a reasonable
juror could not doubt that [petitioners] knew their targets
were federal agents.” Pet. App. 15a. See United States v.
Moore, 958 F.2d 646, 649 (5th Cir. 1992); United States v.
Ochoa, 526 F.2d at 1282; see also United States v. Streit,
962 F.2d at 898; United States v. Alvarez, 755 F.2d at 844-
845 & n.15; United States v. Jackson, 726 F.2d at 1468."
Nor is there merit in petitioner Whitecliff’s claim (96-
1028 Pet. 10-12) that he was entitled to a self-defense
instruction because there was sufficient evidence to raise
a reasonable doubt about whether the ATF agents used
excessive force. A defendant who is aware of a government
agent’s official status may not use force to resist an arrest
or the execution of a search warrant, even if the arrest is
unlawful or the search warrant is defective. See United
States v. Span, 970 F.2d 573, 579-580 (9th Cir. 1992), cert.
denied, 507 US. 921 (1993); United States v. Danehy, 680
F.2d at 1315-1316; United States v. Varkonyi, 645 F.2d 453,
458-459 (5th Cir. 1981); United States v. Johnson, 542 F.2d
at 233; United States v. Johnson, 462 F.2d 423, 427-428 (3d
Cir. 1972), cert. denied, 410 U.S. 937 (1973); United States
v. Ferrone, 438 F.2d 381, 390 (3d Cir.), cert. denied, 402
U.S. 1008 (1971). Such a defendant may raise a valid claim
of self-defense, however, if he reasonably believed that the
amount of force used by the officers in making an arrest or
executing a warrant was “excessive,” and if he used no
more force than necessary to defend himself. See United
States v. Morton, 999 F.2d at 438 n.2; United States v.
Span, 970 F.2d at 577-578; United States v. Streit, 962
F.2d at 898-899; United States v. Middleton, 690 F.2d
5 The “lack of knowledge” defense is typically raised by a defen-
dant’s own testimony that he did not know the official status of his
victim. See, e.g., United States v. Danehy, 680 F.2d at 1313; United
States v. Ochoa, 526 F.2d at 1280-1281; United States v. Young, 464
F.2d at 162 & n.4; see also United States v. Jackson, 726 F.2d at 1468.
Petitioner Whitecliff did not testify at trial in this case, and he intro-
duced no evidence suggesting that he did not know that the individuals
attempting to enter the compound were law enforcement agents.
29
820, 826 (11th Cir. 1982), cert. denied, 460 U.S. 1051 (1983);
W. LaFave & A. Scott, Substantive Criminal Law
§ 5.7(h), at 662 (1986 & 1997 Supp.).®
Petitioner Whitecliff relies (96-1028 Pet. 11) on the tes-
timony of Kathryn Schroeder and Marjorie Thomas, two
Branch Davidians who testified as government witnesses.
Schroeder testified that, at the beginning of the raid, gun-
fire came into a room on the first floor of the building.
Pet. App. 27a; Gov’t C.A. Br. 31. Thomas testified that a
gunshot came through the window into her room on the
third floor shortly after she and her roommates saw
helicopters approaching. Pet. App. 27a; Gov’t C.A. Br. 32.
Thomas also testified that she did not know whether the
gunshot came from the helicopter. Pet. App. 28a. There
was no evidence at trial, however, that petitioner
Whitecliff was near either Schroeder’s or Thomas’s room
at any time during the gun battle. There was also no
evidence that ATF agents shot at petitioner Whitecliff
before he shot at them. The court of appeals therefore
properly concluded that no reasonable jury could infer that
6 The Fourth Amendment prohibits the use of excessive force
by law enforcement officers even when the officers are performing
their lawful duties. Graham v. Connor, 490 U.S. 386, 394-396 (1989);
Tennessee v. Garner, 471 U.S. 1, 7 (1985). This Court made clear in
Graham that “all claims that law enforcement officers have used
excessive forcee—deadly or not—in the course of an arrest, investiga-
tory stop, or other ‘seizure’ of a free citizen should be analyzed under
the Fourth Amendment and its ‘reasonableness’ standard.” 490 U.S. at
395. The Court noted that “Fourth Amendment jurisprudence has long
recognized that the right to make an arrest * * * necessarily carries
with it the right to use some degree of physical coercion or threat
thereof to effect it.” Jd. at 396. The Court explained that “(t]he ‘reason-
ableness’ of a particular use of force must be judged from the
perspective of a reasonable officer on the scene, rather than with the
20/20 vision of hindsight.” Jbid. It also emphasized that the “rea-
sonableness” standard “is an objective one: the question is whether the
officers’ actions are ‘objectively reasonable’ in light of the facts and
circumstances confronting them, without regard to their underlying
intent or motivation.” Jd. at 397.
30
petitioner Whitecliff had acted in self-defense in response
to excessive force used by the agents.
5. Petitioner Fatta challenges (96-7265 Pet. 6-12) his
convictions on Count 9 for conspiring to possess machine-
guns andon Count 10 for possessing machineguns, in vio-
lation of 18 U.S.C. 371 and 922(0). Petitioner argues that
Section 922(0), which prohibits the transfer or possession
of a machinegun, exceeds Congress’s power under the
Commerce Clause and is therefore invalid. Petitioner pri-
marily relies (96-7265 Pet. 8-12) on this Court’s decision in
United States v. Lopez, 115 S. Ct. 1624 (1995), which held
that Congress exceeded its power under the Commerce
Clause when it enacted the Gun-Free School Zones Act, 18
U.S.C. 922(q)(1).
The court of appeals affirmed petitioner Fatta’s convic-
tions on Counts 9 and 10 but held the mandate pending the
decision of the en banc court in United States v. Kirk, 70
F.3d 791 (1995), reh’g en banc granted, 78 F.3d 160 (5th Cir.
1996). Pet. App. 7a, 98a. Subsequent to the court of
appeals’ decision in this case, an equally divided en banc
court in Kirk affirmed the judgment of the lower court
upholding the constitutionality of Section 922(0). See
United States v. Kirk, 105 F.3d 997 (5th Cir. 1997). Thus,
every court of appeals to consider the issue since this
Court’s decision in Lopez has held that Section 922(0) is a
valid exercise of Congress’s power under the Commerce
Clause. See United States v. Rybar, 103 F.3d 273, 279-285
(3d Cir. 1996); United States v. Kenney, 91 F.3d 884, 889-
891 (7th Cir. 1996); United States v. Beuckelaere, 91 F.3d
781, 782-787 (6th Cir. 1996); United States v. Rambo, 74
F.3d 948, 951-952 (9th Cir.), cert. denied, 117 S. Ct. 72
(1996); United States v. Wilks, 58 F.3d 1518, 1519-1522
(10th Cir. 1995). In the absence of a conflict among the
courts of appeals, petitioner Fatta’s contention does not
warrant further review.
31
CONCLUSION
The petitions for a writ of certiorari should be denied.
Respectfully submitted.
MARCH 1997
WALTER DELLINGER
Acting Solicitor General
JOHN C. KEENEY
Acting Assistant Attorney
General
JOSEPH C. WYDERKO
Attorney
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