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IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 94-50437 UNITED STATES OF AMERICA, Plaintiff-Appellee v. JAIME CASTILLO, Defendant-Appellant
REPLY BRIEF OF APPELLANT JAIME CASTILLO
Appeal from the U.S. District Court for the Western District of Texas Waco Division Cause No. W-93-CR-46(5)
Stephen P. Halbrook 10560 Main St., Suite 404 Fairfax, Virginia 22030 (703) 352-7276 Counsel for Appellant Jaime Castillo
TABLE OF CONTENTS Page TABLE OF AUTHORITIES ii ARGUMENT 1 I. THE COURT ERRED IN SENTENCING DEFENDANT TO THIRTY YEARS UNDER '924(C) 1 A. The Jury Found the Use of a Firearm, not a Machinegun, And Thus Five Years is the Maximum Sentence 1 B. Castillo's Conviction Under Count 3 Should Be Set Aside Because the Statute Requires Conviction for the Predicate Offense 5 II. THE COURT ERRED IN NOT CHARGING THE JURY THAT SELF-DEFENSE IS A DEFENSE TO MANSLAUGHTER 6 III. CASTILLO'S FULL STATEMENT SHOULD HAVE BEEN ADMITTED UNDER RULE 106 17 IV. THERE IS INSUFFICIENT EVIDENCE TO SUSTAIN THE CONVICTIONS 20 V. THE COURT TOOK AWAY THE OPPORTUNITY TO POLL THE JURY 23 VI. THE COURT ERRED IN SENTENCING CASTILLO 24 VII. THE RESTITUTION ORDER VIOLATES THE FIRST AMENDMENT 24 TABLE OF AUTHORITIES CASES Page Brown v. Bryan County, 53 F.3d 1410 (5th Cir. 1995) 9 Burns v. Beto, 371 F.2d 598 (5th Cir. 1966) 17 Deal v. United States, 113 S.Ct. 1993 (1993) 1 Jon Bad Elk v. United States, 177 U.S. 529 . . . (1900) 12 Graham v. Connor, 490 U.S. 386 (1989) 9, 10 Mathews v. United States, 485 U.S. 58 (1988) 8 Pinkerton v. United States, 328 U.S. 640 (1946) 2, 3, 4 Tennessee v. Garner, 471 U.S. 1 (1985) 9 United States v. Bailey, 444 U.S. 394 n. 11 (1980) 11 United States v. Correa-Ventura, 6 F.3d 1070 n. 35 (5th Cir. 1993) 1 United States v. Dean, 59 F.3d 1479 (5th Cir. 1995) 2, 3 United States v. Dire, 332 U.S. 581 . . . (1948) 12 United States v. Feola, 420 U.S. 671 (1975) 12 United States v. Frizzi, 491 F.2d 1231 n. 2 (1st Cir. 1974) 9 United States v. Gant, 691 F.2d 1159 n. 3 (5th Cir. 1982) 11 United States v. Gometz, 879 F.2d 256 (7th Cir. 1989), cert. denied 493 U.S. 1033 (1990) 10 United States v. Inocencio, 40 F.3d 716 (5th Cir. 1995) 7 United States v. Jackson, 978 F.2d 903 (5th Cir. 1992), cert. denied 113 S.Ct. 2429 (1993) 24 United States v. Johnson, 542 F.2d 230 n. 4 (5th Cir. 1976) 8, 12 United States v. Levario Quiroz, 854 F.2d 69 (5th Cir. 1988) 10 United States v. Martinez, 7 F.3d 146 (9th Cir. 1993) 2 United States v. Melvin, 27 F.3d 710 (1st Cir. 1994) 2 United States v. Mendoza-Burciaga, 981 F.2d 192 (5th Cir. 1992), cert. denied 114 S.Ct. 356 (1993) 2, 3 United States v. Moore, 483 F.2d 1361 (9th Cir. 1973) 12 United States v. Morton, 999 F.2d 435 (9th Cir. 1993) 12, 15 United States v. Munoz-Fabela, 896 F.2d 908 (5th Cir.), cert. denied 498 U.S. 824 (1990) 5 United States v. Ochoa, 526 F.2d 1278 (5th Cir. 1976) 11 United States v. Panter, 688 F.2d 268 (5th Cir. 1982) 8, 11 United States v. Polk, 56 F.3d 613 n. 4 (5th Cir. 1995) 3, 20, 21 United States v. Raborn, 872 F.2d 589 (5th Cir. 1989) 2, 3 United States v. Rodriguez, 841 F.Supp. 79 (E.D.N.Y. 1994), aff'd 53 F.3d 545 (2d Cir. 1995) cert. denied, 64 U.S.L.W. 3247 (1995) 2 United States v. Sims, 975 F.2d 1225 (6th Cir. 1992), cert. denied, 122 L.Ed.2d 702 (1993) 2 United States v. Span, 970 F.2d 573 (9th Cir. 1992), cert. denied 122 L. Ed. 2d 676 (1993) 9 United States v. Walker, 652 F.2d 708 (7th Cir. 1981) 17 United States v. Wallace, 368 F.2d 537 (4th Cir. 1966) 9 United States v. Wilson, 884 F.2d 174 & n. 2 (5th Cir. 1989) 5 Wilson v. Arkansas, 115 S.Ct. 1914 (1995) 15 STATUTES 18 U.S.C. '2 20 18 U.S.C. '111 12 18 U.S.C. '924(c) 1,2,3,5,6 18 U.S.C. '3109 15 18 U.S.C. '3681 24 26 U.S.C. '5845(b) 14 26 U.S.C. '5845(f) 14 MISCELLANEOUS F.R. Crim.P.31(d) 23 Right to Resist Excessive Force Used in Accomplishing Lawful Arrest, 77 A.L.R.3d 281 (1990), ' 6 10 Rule 106, Federal Rules of Evidence 17 Sentencing Guidelines '3A1.2 24 Sentencing Guidelines '3C1.1 24 Sentencing Guidelines '3E1.1 24 ARGUMENT I. THE COURT ERRED IN SENTENCING DEFENDANT TO THIRTY YEARS UNDER '924(C) A. The Jury Found the Use of a Firearm, not a Machinegun, And Thus Five Years is the Maximum Sentence To sentence a defendant to thirty years for use of a machinegun or other enhanced weapon in a crime of violence under 18 U.S.C. '924(c), the indictment must allege, and the jury must be instructed and must find, that the defendant used such enhanced weapon, not just a firearm. Here, the indictment alleged and the jury found only use of a firearm. Consequently, the district court erred in sentencing the defendant to thirty years incarceration, when it was authorized to sentence the defendant to only five years. (See Castillo Br. 8-19.) As its text makes clear, '924(c) creates a substantive offense, and each element of the offense must be proven to convict and sentence a defendant thereunder. The precedents uniformly hold that if the jury finds the defendant guilty of use of a "firearm," only a five-year sentence may be imposed, and that the thirty-year sentence may be imposed only if the jury finds that the defendant used a machinegun or other enhanced weapon. United States v. Correa-Ventura, 6 F.3d 1070, 1087 n. 35 (5th Cir. 1993); United States v. Sims, 975 F.2d 1225, 1235-36 (6th Cir. 1992), cert. denied, 122 L.Ed.2d 702 (1993); United States v. Martinez, 7 F.3d 146, 148-49 (9th Cir. 1993); United States v. Melvin, 27 F.3d 710, 711-14 (1st Cir. 1994); United States v. Rodriguez, 841 F.Supp. 79, 81-82 (E.D.N.Y. 1994), aff'd 53 F.3d 545 (2d Cir. 1995) cert. denied, 64 U.S.L.W. 3247 (1995). The government finds those cases--the only ones on point--irrelevant. (US Br. 122-23.) It tries to concoct a theory, which has no judicial recognition, to nullify the jury verdict and to allow imposition of a thirty-year sentence without regard to the jury's findings. While the jury did not find that any defendant used a machinegun or other enhanced weapon in a crime of violence, the government argues that the court could sentence the defendants as if the jury had so found, and that each defendant was responsible for a co-conspirator's use of an enhanced weapon under Pinkerton v. United States, 328 U.S. 640 (1946). (US Br. 118.) The court unilaterally decided at sentencing that the use of machineguns, and "probably" grenades and silencers, was foreseen by all the defendants. Since a defendant may be convicted of '924(c) under the Pinkerton rule based on a co-conspirator's use of a firearm, it somehow follows that the court may sentence defendants as if the jury convicted them under this rule. US Br. at 119-20, citing United States v. Dean, 59 F.3d 1479, 1489-90 (5th Cir. 1995); United States v. Mendoza-Burciaga, 981 F.2d 192, 198 (5th Cir. 1992), cert. denied 114 S.Ct. 356 (1993); United States v. Raborn, 872 F.2d 589, 595-96 (5th Cir. 1989). None of these cases recognize the novel doctrine espoused by the government. In each instance, the jury convicted defendants of using a firearm in a drug trafficking offense. "A substantive conviction cannot be upheld solely under Pinkerton unless the jury was given a Pinkerton instruction." Dean, 59 F.3d at 1490 n. 18. "At a minimum, a proper Pinkerton instruction should at least state clearly that the defendant can be convicted of a substantive crime committed by his co-conspirator in furtherance of the conspiracy." Id. See Mendoza-Burciaga, 981 F.2d at 198, and Raborn, 872 F.2d at 596 (jury given Pinkerton instruction). Pinkerton itself, of course, involved the question of responsibility for acts of co-conspirators being submitted to the jury. 328 U.S. at 645. United States v. Polk, 56 F.3d 613, 619 n. 4 (5th Cir. 1995) addresses the consequence of failure to give the Pinkerton instruction in a '924(c) prosecution: each defendant is responsible only for the firearm he carries. "A substantive conviction cannot be upheld solely under Pinkerton unless the jury was given a Pinkerton instruction," but "the jury in this case was not given such an instruction." Id. "Therefore, . . . the individual substantive convictions must stand or fall on the government's evidence against the individually charged defendant regarding that particular count." Id. Based on that standard, there was insufficient evidence for the jury's verdict that one defendant was guilty under '924(c) because a firearm was possessed by a co-conspirator. Id. at 630-31. In the case at bar, no such Pinkerton instruction was given, and the jury made no such finding. (See jury instruction on Count 3 in Castillo Supp. Record on Appeal, vol. 23, at 1232.) Yet the government argues that the court can sentence the defendants as if the Pinkerton instruction was given and as if the jury rendered a guilty verdict under that instruction, when in fact neither occurred. Under the government's theory, the crime the jury convicted the defendant of is irrelevant, and the court can sentence a defendant for another crime. The government's last ditch effort is to assert that, even if the district court did not properly hold each defendant responsible for their "co-conspirators'" use of enhanced weapons, the court "could" find by a preponderance of evidence that each defendant used an enhanced weapon. (US Br. 123.) The government then asserts that, after the April 19, 1993 fire, Texas Rangers "found a hand grenade in the assault vest that Castillo had taken off and left in the pile of belongings by the boat when he came out of the burning building." (US Br. 125.) Not one of the pages cited by the government offer proof that Castillo had a grenade. In any event, the facts on April 19 are immaterial, because the indictment alleged that Castillo used a firearm on or about February 28, 1993. (Record Excerpts ["RE"] tab 3, at 9.) No evidence exists that Castillo used an enhanced weapon on or about February 28, nor was he ever charged with or convicted of such an offense. Accordingly, the maximum sentence for Castillo's conviction under '924(c) is five years, not thirty years. B. Castillo's Conviction Under Count 3 Should Be Set Aside Because the Statute Requires Conviction for the Predicate Offense Castillo was convicted of Count 3 under 18 U.S.C. '924(c) of using a firearm in a crime of violence, but was acquitted of Count 1, the crime of violence. Since '924(c)(1) requires conviction of the predicate offense, Count 3 should be vacated. United States v. Munoz-Fabela, 896 F.2d 908, 909-10 (5th Cir.), cert. denied 498 U.S. 824 (1990) held that one need not be convicted of the underlying crime of violence or drug-trafficking offense. The court cited United States v. Wilson, 884 F.2d 174, 176 & n. 2 (5th Cir. 1989), but that case concerned the sufficiency of the evidence, not whether conviction of the predicate offense is necessary for a conviction under '924(c). These decisions contain no analysis of the language of the statute and disregard two references the statute makes to the underlying conviction. Nor does the government here mention the language of the statute. (Br. 67-68.) This issue should be reconsidered by the Court en banc. '924(c)(1) makes two references to the underlying conviction. First, regarding the additional sentence for use of the firearm, it refers to "the punishment provided for such crime of violence or drug trafficking crime." It does not use terms such as "the punishment provided for such crime of violence if the person is convicted of such crime." Second, in prohibiting concurrent sentences, it refers to "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." While the terms "any other term of imprisonment" do not refer to another specific conviction, the terms "that imposed for the crime of violence . . . in which the firearm was used" clearly refer to imprisonment actually imposed under a conviction. The statute thus presumes that the defendant was convicted of the predicate offense, and accordingly an acquittal of the predicate offense should lead a court to set aside a '924(c) conviction. Since Castillo was acquitted of Court 1, his conviction for Count 3 must be set aside. II. THE COURT ERRED IN NOT CHARGING THE JURY THAT SELF-DEFENSE IS A DEFENSE TO MANSLAUGHTER The district court erred in not charging the jury that self-defense is a defense to aiding and abetting manslaughter. The court instructed that self-defense is a defense to murder, but, contrary to the case law, failed to instruct that it is also a defense to manslaughter. (See Castillo Br. 19-25.) The government argues that Castillo was not entitled to a self-defense instruction at all. (US Br. 78-95.) However, at trial, the government agreed with the giving of the instruction that self-defense is a defense to the charge of aiding and abetting the murder of federal agents and recommended refining language to the court. Government counsel recommended that instead of "excessive force," the instruction should say "excessive force against his person," which, counsel said, "is in line with what the Court has said about physical integrity of the person," and to preclude any interpretation that "excessive force could be, for instance, knocking in a window . . . ." (TR 7015.) The court instructed the jury just as the government had requested, making the above change each time the terms appeared:
Having neither objected to nor appealed the giving of the above instruction, the government cannot now question that the defendants offered sufficient evidence to obtain that instruction. United States v. Inocencio, 40 F.3d 716, 729 (5th Cir. 1995) (absent objection at trial, a jury instruction will be upheld absent plain error, i.e., when the instruction "was so clearly erroneous as to result in the likelihood of a grave miscarriage of justice"). Since the propriety of the self-defense instruction for murder cannot be questioned at this stage, it follows that defendants also presented sufficient evidence to entitle them to a self-defense instruction for manslaughter. "Instructions must be consistent and not misleading." United States v. Panter, 688 F.2d 268, 270 (5th Cir. 1982). The government argues that no evidence exists of excessive force or lack of knowledge of the agents' identity, and thus defendants were never entitled to a self-defense instruction for aiding and abetting murder in the first place. (US Br. 84-85.) Disregarding that the government cannot now object to a jury instruction that it assisted the court in crafting, there was plenty of evidence of both. "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, 63 (1988). "Because error is alleged in the jury instructions, we must view the facts in the light most favorable to [defendant]." United States v. Panter, 688 F.2d 268, 269 (5th Cir. 1982). United States v. Johnson, 542 F.2d 230, 232-33 n. 4 (5th Cir. 1976) noted about the burdens: "The defendant will almost always have to come forward with evidence putting his excuse in issue in order to trigger the government's burden of proving the absence of justification beyond a reasonable doubt." None of the cases cited by the government question the rule set forth by the district court above, and the government concedes that self-defense may be used against excessive force by law enforcement agents making an arrest or executing a warrant. (US Br. 84.) Graham v. Connor, 490 U.S. 386, 394 (1989) addressed excessive force claims, which originate in the Fourth Amendment's prohibition against unreasonable seizures of the person, a "primary source[] of constitutional protection against physically abusive governmental conduct." The Court held that "all claims that law enforcement officers have used excessive forceÄdeadly or notÄin the course of an arrest, investigatory stop, or other 'seizure' of a free citizen should be analyzed under the Fourth Amendment and its "reasonableness" standard . . . ." Id. at 395-96, citing Tennessee v. Garner, 471 U.S. 1 (1985). See Brown v. Bryan County, 53 F.3d 1410, 1414 (5th Cir. 1995) (excessive force used.) An instruction that knowledge of the officer's identity would not justify self-defense "would be inappropriate in a case where a defendant's theory of the case is self-defense against the use of excessive force by a federal law enforcement officer." United States v. Span, 970 F.2d 573, 577 (9th Cir. 1992), cert. denied 122 L.Ed. 2d 676 (1993). Citing Graham v. Conner, the court added:
Self defense while under duress was recognized as a legitimate defense in United States v. Gometz, 879 F.2d 256, 259 (7th Cir. 1989), cert. denied 493 U.S. 1033 (1990), a prosecution for assault with a dangerous weapon against a person known by the defendant to be a federal officer, as follows:
In United States v. Levario Quiroz, 854 F.2d 69, 70 (5th Cir. 1988), against the charge of assaulting a federal agent with a deadly weapon, the defendant claimed self-defense:
Self-defense, duress, and necessity were held to be defenses against the charge of being a felon in possession of a firearm in United States v. Panter, 688 F.2d 268, 271-72 (5th Cir. 1982). "'Congress in enacting criminal statutes legislates against a background of Anglo-Saxon common law . . . .' Part of this common law is the doctrine of self-defense." Id. at 271 (citing United States v. Bailey, 444 U.S. 394, 415 n. 11 (1980). Like those who defend their lives from officers trying to shoot them, felons may use a firearm in dire necessity, for otherwise they "would find themselves between a rock and a hard place--death being the rock and a federal penitentiary the hard place. . . . The right to defend oneself from a deadly attack is fundamental." Id. Thus, one is not guilty if he is "reacting out of a reasonable fear for the life or safety of himself, in the actual, physical course of a conflict that he did not provoke, [and] takes temporary possession of a firearm for the purpose or in the course of defending himself . . . ." Id. at 272. See United States v. Gant, 691 F.2d 1159, 1161-62 n. 3 (5th Cir. 1982) (duress defense available in resisting threat of unlawful force against one's person). Where an officer uses excessive force, self defense is appropriate even where one knows that the person is an officer. This is clear in the explanation by United States v. Ochoa, 526 F.2d 1278, 1282 (5th Cir. 1976) of the rule for where excessive force does not exist:
A technical Fourth Amendment violation is no cause for use of deadly force. United States v. Johnson, 542 F.2d 230, 232-33 (5th Cir. 1976) (robbery suspect not justified at pulling a gun on agent who stopped his vehicle). "Of course, we do not hold that one's resistance to unlawful police conduct is always felonious, no matter how outrageous the police conduct and no matter what the degree of resistance." Id. at 233 n. 6. Similarly, United States v. Moore, 483 F.2d 1361, 1364 (9th Cir. 1973) explains:
The court agreed that the above would be a defense to a prosecution for assaulting an officer under '111. Id. United States v. Feola, 420 U.S. 671, 684 (1975) held that 18 U.S.C. '111 "cannot be construed as embodying an unexpressed requirement that an assailant be aware that his victim is a federal officer. All the statute requires is an intent to assault, not an intent to assault a federal officer." Self-defense would remain a right regardless of whether the aggressor is a private citizen or a law officer using excessive, deadly force: "The situation is not one where legitimate conduct becomes unlawful solely because of the identity of the individual or agency affected." Id. at 685. The government argues that no evidence exits of excessive force or of lack of knowledge of the agents' identity. (US Br. 85-95.) To the contrary, sufficient evidence existed of both in order to warrant a self-defense instruction. The government attributes everything David Koresh knew or believed to each and every one of the more than 100 residents of Mt. Carmel, especially the few who escaped death. Koresh told undercover agent Rodriguez that "they're coming" 45 minutes beforehand, ergo, the government argues, everyone else must have also known that "they" were coming. (US Br. 85.). Rodriguez informed the raid commanders, who proceeded anyway. (TR 3394-5, 3406-12, 3465-3466.) The government argues that the raiders' clothing and shouts gave notice to each defendant that they were law enforcement. (Br. 86-87.) The facts belie this assumption. BATF executed a paramilitary, "Rambo"-type raid, having never rehearsed a peaceful entry. (TR 1330.) No plans were made for how to handle the elderly, women, and children. (TR 1875-6). BATF agent Ballesteros charged at the front door pointing his shotgun at Koresh, who was unarmed. (TR 1315-16). An attorney allowed into the building weeks later found bullet holes coming from the outside in on the door (TR 6594-7), which had mysteriously disappeared at trial. Davidian Wayne Martin, an attorney, frantically called 911 for help only 3 minutes after the raid began. (TR 1910, 6502-3). Agents were armed with firearms, submachineguns, and flash-bang grenades. One agent fired his weapon "without looking" at windows. Another blindly shot through walls. (TR 1883, 2499-502, 2735, 2740-2.) Female residents dropped down as bullets came in through their windows and wall. (TR 4460-4, 4602-3.) Flash-bangs were thrown into windows. (TR 2570-75). Supposedly 76 agents were necessary to arrest Koresh, but he could have been arrested alone by a agent or two at an auto wrecking yard just three days before the raid. (TR 6714.) The citation the government gives for claiming that Koresh never left Mt. Carmel actually says that Rodriguez did not see Koresh leave because he did not know what Koresh looked like. (US Br. 11; TR 3503-04.) An arrest off the premises or the service of a search warrant by a simple knock and announcement would not generate the type of "show time" BATF invited the media to witness. See 18 U.S.C. '3109 (officer must give notice of his authority and purpose in serving warrant); Wilson v. Arkansas, 115 S.Ct. 1914 (1995) (common-law knock-and-announce principle forms a part of the Fourth Amendment reasonableness inquiry). The government argues that the defendants cannot show that no more force than necessary was used to resist the excessive force of the agents because none of the defendants testified. (US Br. 91.) "The fact that [a defendant] did not testify at trial is irrelevant in assessing whether there is sufficient evidence to require a self-defense instruction." United States v. Morton, 999 F.2d 435, 440 n. 3 (9th Cir. 1993). The government concedes that a self-defense instruction would be proper if some evidence existed that BATF agents fired first. (Br. 92.) Castillo himself told a Texas Ranger that the first shots were fired at the front doors from outside the building. (US Br. 95; TR 3051-57, 3094.) Castillo's statement was no more "self-serving" than those of the agents who testified. Disregarding the above, the government claims lack of evidence that any individual defendant did not shoot at agents until agents shot at him. (US Br. 91.) No evidence exists that Castillo fired a shot at anyone, and Castillo himself denied having done so, although the government finds this part of his statement somehow irrelevant. (See infra part III; Report & 7.H, 22 R. 931; Amended Order, 22 R. 943.) The government disregards the legal concept of individual responsibility and finds "the Branch Davidians" to be collectively guilty, and thus no survivor could be entitled to a self-defense instruction. (US Br. 92.) Once the cease fire was called, peace prevailed the rest of the day and for several weeks. However, the FBI Rambos prevailed over the negotiators. FBI agents threw flash bangs, which can cause death, at unarmed people fleeing the buildings, driving them back inside. (TR 5037-8, 5091-2, 5188-9, 5232.) On the final day, more CS gas was pumped into the buildings at men, women, and children than ever before in the annals of gas attacks. The tanks ran into the buildings and caused parts to collapse. (TR 5064-71, 5591-5614.) Numerous deaths of children and females were from suffocation or blunt injury caused by the tanks demolishing parts of the building. (TR 5963-64, 5979, 6020-21, 6042-43; US Br. 54.) In sum, at trial the government not only failed to object to, but helped the court craft, a self-defense jury instruction for the charge of aiding and abetting murder. It cannot now assert that the factual predicate did not exist for such an instruction, and indeed the record establishes sufficient facts for the instruction. The same facts demonstrate that a self-defense instruction should have been given for the lesser-included offense of aiding and abetting voluntary manslaughter. III. CASTILLO'S FULL STATEMENT SHOULD HAVE BEEN ADMITTED UNDER RULE 106 As Castillo has shown (Br. 25-34), the district court admitted into evidence parts of his statement made when he escaped the fire to Texas Ranger De Los Santos, but excluded parts of the statement which were exculpatory and explanatory. (Report of Investigation, 22 R. 929, reproduced in RE tab 13.) This is prejudicial error requiring a new trial. Rule 106, Federal Rules of Evidence, provides: "When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part . . . which ought in fairness to be considered contemporaneously with it." The government argues, without authority, that Rule 106 does not apply since it refers to "a writing or recorded statement," not to oral testimony, and the Ranger testified as to the written statement, which itself was not introduced into evidence. (US Br. 104-06.) Yet Rule 106 cases normally involve the oral reading of written statements. E.g., United States v. Walker, 652 F.2d 708, 713 (7th Cir. 1981) (selective reading of testimony in first trial reversible error in second trial); Burns v. Beto, 371 F.2d 598, 602 (5th Cir. 1966) (if portion of confession read to jury deletes exculpatory portions, defendant entitled to have exculpatory portions in evidence). The government's argument is based on the absurdity that "the Ranger's written report was . . . inadmissible hearsay," but his selective oral rendition of the written report was not. (US Br. 105 & n. 12.) On the merits, the government argues that Castillo's seeing a companion lying dead from being shot by the BATF intruders is not explanatory of Castillo clutching a rifle in fear less than two hours later. (US Br. 105.) The excluded statement was that Castillo "observed 'Winston' laying on the floor dead with a gunshot wound to the head." (Report & 7.G, 22 R. 931; Amended Order, 22 R. 942, 944.) The government denies that this statement explains the next paragraph of Castillo's statement that he picked up a rifle. Shortly thereafter Castillo observed several BATF agents (Report & 7.J, 22 R. 931; TR 3055-57), which was clearly the time in which he stood in the doorway, exposed to the fire of armed BATF agents who killed his companion, and allowed the agents to retrieve their wounded. How could bullets flying into the house and killing an occupant not explain why Castillo picked up a rifle? The court admitted Castillo's statements that he heard "something was going to happen," put on an ammunition vest, and, after seeing cattle trucks arrive, carried a rifle near the front door accompanied by Koresh, who was unarmed. (TR 3050-55, 3091-93.) When Koresh opened the door and yelled out, "There's women and children in here," shots were suddenly fired at the front door, wounding Koresh. Castillo tried to chamber a round in his rifle, but it jammed and he discarded it. Castillo got his pistol from his room and then went to another room. (TR 3051-53, 3094.) The court refused to admit Castillo's further statement that he "took cover during the shooting, never firing a shot. . . . No one in this room fired a round. CASTILLO claims that he doesn't know who fired a weapon inside." (Report & 7.H, 22 R. 931; Amended Order, 22 R. 943.) The government asserts that this statement does not explain or put in context his statement that he got his pistol. (US Br. 106.) Certainly what he then did with his pistol is inexorably connected with his retrieval of the pistol. Indeed, how could such a statement not be explanatory of his actions and relevant to a charge of aiding and abetting homicide? The court allowed admission of Castillo's statement that he was assigned guard duty at the chapel. (TR 3057, 3098.) The court excluded his statement that "he heard that Winstom, HIPSMAN, Peter GENT, Perry JONES, and Jaydean WENDEL had been killed. That WENDEL was asleep in bed when she was shot. That GENT had been killed by the helicopters and JONES had been shot in the legs and stomach." (Report & 10, 22 R. 932.) Contrary to the government (Br. 106), this certainly explains why he did guard duty as well as his other actions set forth in the statement. The court excluded Castillo's statements that he received no firearms training (Report & 11, 12, 22 R. 932; Amended Order, 22 R. 943) and that his duties at Mt. Carmel "were to help construct the tornado shelter, play drums, and study the Bible." (Report & 17, 22 R. 932; Amended Order, 22 R. 942.) Contrary to the government (Br. 106-07), these facts suggest that he was not part of any conspiracy, and explain the background of his possession of firearms and his mental state on the date of the raid. Contrary to the government's suggestion that exclusion of the above statements was harmless error (Br. 107-08), the statements explain, in a noncumulative manner, Castillo's motives and the reasons for his actions. The jury was entitled to hear Castillo's personal explanation of why he held a firearm and helped to guard the building--he personally saw his companions shot dead--as well as his personal denial that he never fired a shot. It is hard to imagine more persuasive evidence for a jury to hear in a self-defense case than a defendant's own denial of the charges. IV. THERE IS INSUFFICIENT EVIDENCE TO SUSTAIN THE CONVICTIONS A reasonable trier of fact could not have found that Jaime Castillo aided and abetted voluntary manslaughter (Count 2) or that he used or carried a firearm during and in relation to a conspiracy to murder federal officers (Count 3). Nor was there any evidence that he carried a machinegun or other enhanced weapon (Count 3 as amended by the court after the verdict). (See Castillo Br. 34-41). United States v. Polk, 56 F.3d 613, 620 (5th Cir. 1995) states the following elements of aiding and abetting:
The government failed to meet the above burden, even making all reasonable inferences in favor of the verdict. Castillo's mere presence at Mt. Carmel and his association with the Branch Davidians on the date of the raid do not show that he aided and abetted manslaughter. No evidence exists that Castillo even knew that the four BATF agents had been shot or who shot them, much less that he committed any affirmative act. As Polk explains:
Similarly, conviction for carrying a firearm during a conspiracy to murder federal agents requires, inter alia, proof that two or more persons agreed to murder federal officers and that the individual defendant agreed to join the conspiracy. (US Br. 68.) No evidence exists that Castillo agreed to or even knew of such a conspiracy. The government's entire case is built upon what it attributes to the mind of David Koresh and what some residents did on the day of the raid. Koresh taught this, Koresh prophesied that, therefore all residents conspired to kill federal officers. (US Br. 70.) Some residents fired at the agents, therefore all residents fired at the agents. (Br. 71.) Contrary to these logical leaps and classic portrayals of guilt by association, Jaime Castillo was one occupant of over a hundred. Not one iota of evidence exists that Castillo conspired to do anything, much less to murder federal agents, or that he aided and abetted manslaughter. Virtually nothing exists in the record about Castillo except that he played drums and studied the Bible, and that on the day of the raid, after seeing other residents shot dead, he exposed himself at a doorway holding a rifle and allowed BATF agents to retrieve a wounded agent. Based on nothing more than the fact that Castillo possessed firearms, the government asserts that "Castillo purposefully participated in the gun battle that resulted in the deaths of the four ATF agents." (US Br. 65-66.) To the contrary, no evidence exists that he was in the vicinity of any area where the four agents were killed, that he assisted any person who killed the agents, or that he knew that the four agents even existed. Four agents were tragically killed when 76 BATF agents converged on a sprawling place of residence of over a hundred people to arrest a single person and to search the entire residence because one or two persons allegedly possessed items which were not registered pursuant to Chapter 53 of the Internal Revenue Code. Castillo could not avoid being present somewhere in the complex because he lived there. His possession of firearms was lawful. Carrying them on his person seemed prudent after bullets began flying from the outside and he saw residents killed. He never participated in any gun battle. No evidence exists that he carried a firearm as part of a conspiracy to kill anyone or that he aided and abetted anyone else in killing the four agents. V. THE COURT TOOK AWAY THE OPPORTUNITY TO POLL THE JURY After the district court dismissed Count 3 in a bench conference, the court directed the foreperson to read the verdict. While the verdict was that defendants were guilty of Counts 2 and 3, the defense attorneys were aware that Count 3 stood dismissed. Thus, when the court asked whether anyone wanted the jury polled, defendants reasonably believed the court was referring to Count 2 only, since Count 3 was dismissed. By then dismissing the jury and later reinstating Count 3, the court deprived defendants of the opportunity to poll the jury as to Count 3, contrary to F.R.Crim.P. 31(d), which is reversible error per se. (See Castillo Br. 41-46.) As the government concedes, "the court agreed with defense counsel that the jury could not find defendants guilty on Count 3 unless it found defendants guilty on Count 1." (US Br. 96.) However, it asserts that defendants should not have relied on the court's ruling, and could have asked the court to poll the jury on the very count the court had just dismissed. (Br. 102.) District court rulings are not meant as traps to ensnare attorneys who practice in good faith before the court. The court told the defense the count was dismissed. According to the dictates of fundamental fairness, the defense was entitled to rely on the court's ruling. Since Count 3 stood dismissed when the verdict was read, defendants had no opportunity to poll the jury as to that count. When the district court reinstated the conviction weeks later, it was too late to poll the jury. Accordingly, Castillo is entitled to a new trial on Count 3. VI. THE COURT ERRED IN SENTENCING CASTILLO The court misapplied the Sentencing Guidelines and made erroneous sentencing findings. (See Castillo Br. 46-48.) The government asserts that the court did not err, without responding to the specific points raised. The enhancement for an official victim under '3A1.2 is based on the assertion that the defendant "assaulted" an officer, when no evidence exists that Castillo assaulted anyone. (See US Br. 128.) The enhancement for obstruction of justice under '3C1.1 is based on defendants' alleged conspiracy to prevent execution of the search warrant (US Br. 129), but no such evidence exists as to Castillo. Regarding acceptance of responsibility under '3E1.1, the government ignores (Br. 129) that Castillo gave a detailed statement to the Texas Rangers just after escaping the fire. VII. THE RESTITUTION ORDER VIOLATES THE FIRST AMENDMENT Castillo demonstrated that the restitution order violates the First Amendment. (Castillo Br. 48-50.) Based on United States v. Jackson, 978 F.2d 903, 915 (5th Cir. 1992), cert. denied 113 S.Ct. 2429 (1993), the government agrees. (Br. 133-34.) Since the government did not appeal the court's ruling that 18 U.S.C. '3681 is unconstitutional, this Court has no jurisdiction to direct the district court to reconsider. (See US Br. 134.) Accordingly, the restitution order should be vacated. CONCLUSION The judgment of convictions on both counts should be vacated. Alternatively, the case should be remanded for a new trial on Count 2 and/or Count 3. If Count 2 is not set aside or remanded for retrial, the sentence should be reduced to a lower total offense level. If Count 3 is not set aside or remanded for retrial, the sentence should be reduced from thirty years to five years. The restitution order should be vacated. Respectfully submitted, Jaime Castillo By counsel Stephen P. Halbrook 10560 Main St., Suite 404 Fairfax, Virginia 22030 (703) 352-7276 Counsel for Appellant Castillo
CERTIFICATE OF SERVICE I hereby certify that two copies of the brief were mailed, first class postage prepaid, this day of November, 1995 to the following:
Joseph C. Wyderko Richard G. Ferguson Attorney, Appellate Section 1512 Lake Air Drive Criminal Division Suite 118 U.S. Department of Justice P.O. Box 1157 Post Office Box 899 Waco, TX 76710 Ben Franklin Station Washington, D.C. 20044-0899
Stanley Rentz Steven Rosen 506 Franklin Avenue 440 Louisiana Waco, TX 76701 Suite 2100 Houston, TX 77002 John Carroll Mike DeGeurin 310 S. St. Mary's Street 909 Fannin, Ste. 590 1515 Tower Life Bldg. Houston, TX 77010 San Antonio, TX 78205
Stephen P. Halbrook |
