# Opposition Brief — Castillo v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1997
- **Citation:** 520 U.S. 1185

## Text

: Sworeme Goug. US.

i wm

MAR 21 1997
Nos. 96-989, 96-1028, 96-7227 and 96-7265

t
Jn the Supreme Court of the Gmited States

OCTOBER TERM, 1996

J AIME CASTILLO, PETITIONER
v.
UNITED STATES OF AMERICA

KEVIN A. WHITECLIFF, PETITIONER
».

UNITED STATES OF AMERICA

BRAD EUGENE BRANCH, RENOS LENNY AVRAAM,
AND GRAEME LEONARD CRADDOCK, PETITIONERS

)

UNITED STATES OF AMERICA

PAUL GORDON F ATTA, PETITIONER
U.

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.

TABLE OF CONTENTS
Page
EIEN EE AD cn 2
ES Srl Seba ARR SR 2
AE EER a em 2
aR ae eae OE a 17
I a 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 (1998) ............ 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
EES SERRE Re Ror ae eS ee bdicmiasibe 11, 23
Russell v. United States, 369 U.S. 749 (1962) ....... 21
Smith v. United States, 508 U.S. 223 (1998) ...... 12, 21
Tennessee v. Garner, 471 U.S. 1 (1985) ....ccccccceceeeee 29
United States v. Alerta, 96 F.3d 1230 (9th Cir.
ERE te Ere Rae EO a 22
United States v. Alvarez, 755 F.2d 830 (11th Cir.),
cert. denied, 474 U.S. 905 (1985), 482 U.S. 908
EES ee een Ce Rt RE ee 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.
ESC ESS SEE EES SEG Re ate ne 30
United States v. Bracy, 67 F.3d 1421 (9th Cir.
ESTEE ENGEL, ea 17, 19
United States v. Collins, 690 F.2d 431 (5th Cir.
1982), cert. denied, 460 U.S. 1046 (19838) ............... 13
United States v. Danehy, 680 F.2d 1311 (11th

Re NUN liters ceipcamadhinciitatieniincidessonelsbonnanicuvaincweces 27, 28

(IIT)

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, 438 F.2d 381 (8d Cir.),

cert. denied, 402 U.S. 1008 (1971) ...ccecceeseccecseeeeeeee 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,

SUNT isivtntendadncecunccnscetacitac uueiibinlea cit tinatnaediaéus 18
United States v. Hill, 971 F.2d 1461 (10th

CAE: SD &

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, 1480 (9th Cir. 1995); United States v. Anderson, 59
F.3d 1323, 13826 (D.C. Cir.) (en banc), cert. denied, 116 S. Ct.
542 (1995); United States v. Ospina, 18 F.3d 1332, 1336 (6th
Cir.), cert. denied, 512 U.S. 1226 (1994); United States v.
Thomas, 12 F.3d 1350, 1362-1563 (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

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 convictea 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 (“[WJhen 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(c)(1) charges only if it found that the
government had proved beyond a reasonable doubt 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. Jd. 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(c1) 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.’”).”

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.” Jd. 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, “[i]f 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 unde: 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 »%f 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)(1)
to permit a jury to find a defendant guilty of violating that provision
based on a co-conspirator’s use of a firearm. See, ¢.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, 116 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 validity of petitioners’ con-
victions is therefore not dependent on application of the Pinkerton doe-
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.” Ibid.

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 petitiorer “actively employed” a
firearm within the meaning of Bailey. Pet. App. Tla-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. Ibid. 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, 842-848 & n.12 (11th 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, e.g., 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 petitioners 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; Gev’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 dovbt 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 U.S. 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 (d
Cir. 1972), cert. denied, 410 U.S. 937 (1973); United States
v. Ferrone, 438 F.2d 381, 390 (8d 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 488 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

16 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 foree—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
2V20 vision of hindsight.” Jbid. It also emphasized that the “rea-
scnableness” 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 and on 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.8d 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 2738, 279-285
(8d 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.

WALTER DELLINGER
Acting Solicitor Genera!

JOHN C. KEENEY
Acting Assistani Attorney
General

JOSEPH C. WYDERKO
Attorney

MARCH 1997

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_0015%3A2. Public record. Not legal advice.