1The full text of 8 U.S.C. § 1324 is provided in Appendix A.

United States Court of Appeals

Fifth Circuit

FILED

May 10, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-20430

UNITED STATES OF AMERICA

Plaintiff - Appellant,

versus

TYRONE MAPLETOFT WILLIAMS

Defendant - Appellee.

Appeal from the United States District Court

For the Southern District of Texas

(USDC No. 4:03-CR-221-11)

Before HIGGINBOTHAM, DeMOSS, and OWEN, Circuit Judges.

HIGGINBOTHAM, Circuit Judge:

Returning to this Court for the third time, this case arises

out of an illegal alien smuggling conspiracy that caused the deaths

of nineteen undocumented aliens secreted in the trailer of a

tractor-trailer driven by defendant Tyrone Mapletoft Williams from

Harlingen, Texas, to Victoria, Texas. Five days after receiving

the case at the close of Williams’s trial for various alien

smuggling offenses in violation of 8 U.S.C. § 1324,1 the jury

returned the verdict form with both an entry of “guilty” and an

express statement of “hopeless[] deadlock[]” on Counts 21 through
2

58. The government appeals, and we now confront questions relating

to the scope of Williams’s second trial, if any.

I

In the evening of May 13, 2003, Williams and Fatima Holloway,

one of the fourteen individuals charged in the conspiracy, loaded

approximately seventy-four illegal aliens into Williams’s tractortrailer. With Williams driving, they departed Harlingen, Texas,

for the 120-mile trip to Robstown, Texas. During the trip the

aliens began banging on the sealed trailer, screaming to be

released due to heat exhaustion and suffocation. Holloway

suggested that Williams turn on the refrigeration unit in the

trailer, but he refused. Shortly after passing a Border Patrol

checkpoint, Williams noticed that the aliens had clawed a hole in

the back door of the trailer and that his tail light was dangling

from the door. Angered, Williams contacted the other individuals

allegedly part of the conspiracy and demanded more money. They

directed Williams to proceed to Houston, Texas, extending the trip

by approximately 210 miles.

Upon reaching Refugio, Texas, Williams backed his trailer into

a dark area and entered a nearby convenience store, where he

purchased four or five small bottles of water. Williams continued

north, stopping next in Victoria, Texas, where he parked the

trailer in a dark field near another convenience store. Williams

made three trips into the store, each time purchasing water. Then,
3

Williams asked Holloway to enter the store to purchase water, which

she did. When Holloway returned to the store a second time, again

to purchase more water, one of the undocumented aliens from

Williams’s trailer ran into the store, shirtless, shouting that

someone was trying to kill him. As Holloway returned to the

trailer, she noticed that the doors were open and that some of the

aliens were walking into a nearby field. Williams grabbed the

water from Holloway, forced her into the cab, and sped away,

abandoning the trailer. Nineteen undocumented aliens died from

dehydration and suffocation.

Williams and the other individuals were charged together in a

sixty-count indictment with various alien smuggling offenses in

violation of 8 U.S.C. § 1324. Count 1 charged Williams and the

others with conspiracy to conceal, harbor, shield from detection,

and transport illegal aliens. Counts 2 through 20 charged

Williams, both as a principal and as an aider and abettor, with

unlawful concealment of illegal aliens.

Counts 21 through 58 are the focal point of this appeal.

Counts 21 through 39 involved aliens that were allegedly injured

during the unlawful transportation. Specifically, Counts 21

through 39 charged that Williams

did knowingly and in reckless disregard of the fact that

the aliens identified in Counts Twenty-One (21) through

Thirty-Nine (39) herein, were aliens who had come to,

entered, and remained in the United States in violation

of law, did transport, move, attempt to transport, and

attempt to move said aliens in furtherance of such

violation of law within the United States, namely, from
2517 U.S. 456 (1996); 536 U.S. 862 (2002).

3In re United States, 397 F.3d 274 (5th Cir. 2005).

4

a location at or near Harlingen, Texas to another

location at or near Victoria, Texas and other places, by

means of a semi-tractor-trailer rig, for the purpose of

commercial advantage and private financial gain. During

and in relation to said violation, the defendants caused

serious bodily injury to a person and placed in jeopardy

the life of a person.

Counts 40 through 58 mirrored Counts 21 through 39, except that

Counts 40 through 58 involved aliens that died as a result of the

transportation.

Because nineteen aliens died, Williams and most of the codefendants were subject to the death penalty under §

1324(a)(1)(B)(iv). After complying with Department of Justice

protocol, the government filed a Notice of Intent to Seek the Death

Penalty against Williams, and the district court severed Williams’s

case from the other defendants. Williams sought discovery of the

government’s capital-charging practices, alleging that the United

States selectively prosecuted him on account of his race; the

government objected, asserting that Williams had not carried his

burden under United States v. Armstrong and United States v. Bass.

2

The district court ordered discovery into the government’s capitalcharging practices and issued a “sanctions” order, creating an

affirmative defense based on selective prosecution. We granted the

government’s petition for mandamus, vacating the discovery order

and the sanctions.3
4United States v. Williams, 400 F.3d 277 (5th Cir. 2005).

5

Williams then renewed a previously denied motion to have the

guilt/innocence phase determined by a non-death qualified jury and

to have a new, death-qualified jury decide punishment, if

necessary. The district court granted Williams’s request, finding

“good cause” due to “[t]he case management problems that have

arisen in this case because of the Government’s interlocutory

appeal of this Court’s discovery rulings.” At the conclusion of a

status conference on Friday, February 4, 2005, the district court

announced that the trial would begin at 9:00 A.M. on Monday,

February 7, 2005, with a non-death qualified jury. The next day,

a Saturday, this Court ordered a stay of the trial until it could

rule on the government’s second petition for writ of mandamus. On

February 14, 2005, this Court rendered its second published opinion

in this case, holding that the district court “improvised a

procedure at odds with the Federal Death Penalty Act.” We vacated

the order and directed that the case proceed promptly to trial with

a single, death-qualified jury for both phases of the case.4

Jury selection began on February 22, 2005, with a jury panel

of 250 citizens. Trial began on March 8, 2005, and the United

States presented testimony and evidence from approximately eighty

witnesses, including many foreign nationals requiring translation.

The jury received the case on March 18, 2005.
6

Both the jury instructions and the verdict form are critical

to the questions presented in this case. With respect to Counts 21

through 39, the jury instructions provided:

Title 8, United States Code, Sections

1324(a)(1)(A)(ii) and 1324(a)(1)(B)(i), make it a crime

for anyone to transport an alien within the United States

for the purpose of commercial financial advantage and

private financial gain, knowing or in reckless disregard

of the fact that the alien is here illegally, and in

furtherance of the alien’s violation of law.

For you to find the Defendant guilty of this crime,

you must be convinced that the government has proved each

of the following beyond a reasonable doubt:

First: That certain undocumented aliens had entered

or remained in the United States in violation

of law.

Second: That the Defendant knew or recklessly

disregarded the fact that the aliens were in

the United States in violation of the law;

Third: That the Defendant transported or attempted to

transport the aliens within the United States

with intent to further the alien’s unlawful

presence;

Fourth: That an offense was done for the purpose of

commercial advantage or private financial

gain.

You will also be asked to determine if the

Government has proved the following beyond a reasonable

doubt: If, during and in relation to said violation

Defendant caused serious bodily injury to a person and

placed the life of a person in jeopardy.

These instructions tracked the Fifth Circuit’s Pattern Jury

Instructions, except that the district court included one of the

facts necessary for punishment––that the offense was done for the

purpose of commercial advantage or private financial gain––as an

element of the basic transportation offense.
5Counts 40 through 58 pertained to illegal aliens who died as a result of

being transported in Williams’s tractor-trailer. The jury was to determine the

additional fact: “If, during and in relation to said violation, Defendant caused

serious bodily injury to a person, placed the life of a person in jeopardy, and

the death of a person resulted from the conduct.” In all other respects, the

jury instructions on Counts 40 through 58 mirrored those of Counts 21 through 39.

6Fuller v. United States, 407 F.2d 1199, 1227 (D.C. Cir. 1968) (en banc).

7

Also following the Fifth Circuit’s Pattern Jury Instructions,

the instructions explained how Williams could be found guilty as an

aider and abettor, and the instructions required the jury to make

an independent determination of Williams’s role in the offense:

You will also be asked to determine whether the Defendant

acted as a principal, as an aider and abettor, or both.

A “principal” is the immediate perpetrator of a crime;

that is, the one who directly commits the offense. The

principal is the actual offender rather than one who

merely assists another in committing an offense. An

“aider and abettor” is one who helps the principal during

the commission of the crime, but may not have committed

the crime with his or her own hands.

The instructions did not define what it meant or how it could be

that a single defendant could be “both” a principal and an aider

and abettor in the commission of a single crime.5

The verdict form tracked the jury instructions. The

government concedes that it was “drafted differently” in this case.

As the Court of Appeals for the District of Columbia explained,

When a greater and lesser offense are charged to the

jury, the proper course is to tell the jury to consider

first the greater offense, and to move on to

consideration of the lesser offense only if they have

some reasonable doubt as to guilt of the greater

offense.6

Here, in contrast, the order was reversed. The jury was first

asked to enter a finding of guilt on the basic transportation
8

offense, which included the “financial gain” element. Then, the

jury was asked two additional questions: whether the defendant

acted as a principal, an aider and abettor, or both; and whether

the defendant’s actions caused any of the statutory injury factors.

With respect to Counts 21 through 39, the verdict form stated:

We, the jury, unanimously find the Defendant, 

Tyrone Mapletoft Williams

_____________________

“Guilty” or “Not Guilty”

The jury is instructed that, should you find the

Defendant not guilty, you do not need to answer the

questions immediately following and may proceed to the

next Count.

We, the jury, further unanimously find beyond a

reasonable doubt that during and in relation to said

violation the defendant, Tyrone Mapletoft Williams was:

___ A principal

___ An aider and abettor

___ Both, a principal and an aider and abettor

We, the jury, further unanimously find beyond a

reasonable doubt that during and in relation to said

violation [NAME OF VICTIM]:

1) Was caused serious injury [yes], [no]

2) Was placed in jeopardy of death [yes], [no]

With respect to Counts 40 through 58, the verdict form was

identical, except that it instructed the jury to also determine if

the death of a person resulted from the offense conduct. The

verdict form contained the additional line:

3) Died as a result of the conduct [yes], [no]
9

Five days after receiving the case, the jury returned two

notes, both indicating that, with respect to Counts 1 through 20

and certain aspects of Counts 21 through 58, the jury was

“hopelessly deadlocked.” Specifically, the first note provided:

Judge Gilmore,

It appears that this jury is hopelessly deadlocked

on Counts 1 and 2-20. We have agreed on guilt/non-guilt

on Counts 21-39 and 40-58 but are hopelessly deadlocked

on the sub-questions on those counts.

Following an Allen charge, the jury returned the second note:

Judge Gilmore,

Arguments have been made, evidence has been

reviewed, and we have discussed all at length. There is

and has been no movement. We are deadlocked as before.

Judge Gilmore polled the jury, and only three of the jurors

believed that it would be useful to continue deliberating. The

other nine reiterated that they were hopelessly deadlocked.

The jury’s verdict form contained only an entry of “guilty” on

the first line provided in Counts 21 through 58. Besides the two

notes, the jury gave no other indication of how it resolved any

issue in this case. Williams moved for a mistrial on “whatever

they haven’t reached a verdict on.” The court determined that the

jury returned a verdict of guilty on aiding and abetting the

commission of the transportation offense in Counts 21 through 58,

and it entered a judgment on that verdict. The court declared a

mistrial on Counts 1 through 20.
7656 F.2d 1347, 1349 (5th Cir. 1982).

10

The government disputed the district court’s interpretation of

the jury’s work. At a status conference on April 11, 2005, the

government announced its intention to retry Williams on Counts 1

through 58. The district court denied the government’s request,

stating that the government could retry Williams only on Counts 1

through 20. The government filed a motion for reconsideration,

which the district court denied, holding that the Double Jeopardy

Clause barred retrial on Counts 21 through 58 “because the evidence

presented by the Government at trial was found to be insufficient

by the unanimous jury to establish that the injury factors should

enhance the sentence.” The court relied upon Bullard v. Estelle,

in which we held that “the double jeopardy clause bars a second

enhancement proceeding when the evidence at the first enhancement

proceeding was insufficient to establish that the defendant

committed one or more of the prior offenses necessary for

enhancement.”7 The district court held that the government

presented insufficient evidence to establish the injury factors, a

conclusion the court reached from the circumstance that, in her

words, the jury “remained silent” on the “sub-questions” in Counts

21 through 58. The government timely appealed.

II

The government’s right to appeal in criminal matters is

controlled by 18 U.S.C. § 3731. That section provides, in part:
818 U.S.C. § 3731 (2005).

9Id.; see also United States v. Aslam, 936 F.2d 751, 754 (2d Cir. 1991);

United States v. Edmondson, 792 F.2d 1492, 1496 (9th Cir. 1986).

10United States v. Wilson, 420 U.S. 332, 337 (1975).

11United States v. Woolard, 981 F.2d 756, 757 (5th Cir. 1993) (holding that

appeal under § 3731 was appropriate when the district court’s action “effectively

removed a discrete basis of criminal liability,” which had the practical effect

of a dismissal); United States v. Davis, 380 F.3d 821, 828 (5th Cir. 2004)

(finding jurisdiction to review a district court’s ruling that the government

could not seek the death penalty on an indictment that failed to allege the

required intent elements and statutory aggravating factors under the Federal

Death Penalty Act); see also United States v. Marubeni Am. Corp., 611 F.2d 763,

764-65 (9th Cir. 1980) (finding jurisdiction to review an order striking

forfeiture allegations from a RICO indictment); United States v. Levasseur, 846

F.2d 786, 788 (1st Cir. 1988) (reviewing a pretrial order striking a predicate

act from a RICO count).

11

In a criminal case an appeal by the United States shall

lie to a court of appeals from a decision, judgment, or

order of a district court dismissing an indictment or

information or granting a new trial after verdict or

judgment, as to any one or more counts, or any part

thereof, except that no appeal shall lie where the double

jeopardy clause of the United States Constitution

prohibits further prosecution.8

By its own terms, § 3731 is to be “liberally construed to

effectuate its purposes,”9 as it is “intended to remove all

statutory barriers to government appeals and to allow appeals

whenever the Constitution would permit.”10 We examine the

consequences of the ruling by the district court, unbounded by the

label given it. A district court judge cannot circumvent the

government’s right to appeal under § 3731 by taking action that has

the effect of a dismissal yet never actually entering a “decision,

judgment, or order.”11

Here, the district court never entered an order dismissing

Counts 21 through 58 of the indictment; rather, the court entered
12Woolard, 981 F.2d at 757; Davis, 380 F.3d at 828.

13Williams also contends that the government may only appeal to the extent

authorized by the Constitution and that since retrial is barred by the Double

Jeopardy Clause, the government cannot appeal. This argument is meritless. The

primary question on appeal, discussed infra, concerns the impact of the Double

Jeopardy Clause on a second trial. This Court plainly has jurisdiction to

consider the merits of the double jeopardy question in order to resolve the

jurisdictional inquiry under § 3731. See, e.g., United States v. Martin Linen

Supply Co., 534 F.2d 585, 588-89 (5th Cir. 1976) (dismissing appeal for lack of

jurisdiction under § 3731 after determining that, on the merits, the Double

Jeopardy Clause barred further prosecution).

14There is no dispute that the government can retry Williams on Counts 1

through 20. The jury’s first note plainly stated, “It appears that this jury is

hopelessly deadlocked on Counts 1 and 2-20.” And the district court declared a

12

a “judgment” on the jury’s “verdict” of guilty on the aiding and

abetting offense alleged in Counts 21 through 58, refused the

government’s request to retry Williams on the “greater aggravated

offenses” in those counts, and denied the government’s motion to

reconsider that refusal. If the government cannot proceed on the

greater aggravated offenses in Counts 21 through 58, then the

district court’s entry of judgment and denial of the government’s

motion for reconsideration “effectively remove[s] a discrete basis

of liability,” which has the practical effect of a dismissal.12 If

the government cannot proceed on the greater aggravated offenses,

then Williams is not subject to the higher penalties, including

death, provided for in 8 U.S.C. § 1324(a)(1)(B)(i), (iii), and

(iv). We have jurisdiction under § 3731.13

III

Our task is to determine whether the government can retry

Williams for various alien smuggling offenses and, if so, what the

scope of that second trial will be.14 Both parties agree that the
mistrial on those counts. The Double Jeopardy Clause does not bar a second trial

when the first trial ended with a hung jury. United States v. Perez, 9 Wheat.

579, 580 (1824) (Story, J.) (holding that a failure of the jury to agree on a

verdict was an instance of “manifest necessity” which permitted a judge to

terminate the first trial and retry the defendant because “the ends of justice

would otherwise be defeated”); Richardson v. United States, 468 U.S. 317, 323–24

(1984) (same).

15UNITED STATES CONSTITUTION amend. V.

13

jury convicted Williams on Counts 21 through 58 of aiding and

abetting the commission of the transportation offense, although for

widely divergent reasons. To Williams, the conviction for aiding

and abetting triggers the Double Jeopardy Clause,15 which precludes

a second trial on the greater aggravated offenses in Counts 21

through 58. To the government, the aiding and abetting conviction

does not preclude retrial on the “greater aggravated offenses” in

those counts. The government seeks to keep the aiding and abetting

conviction in its hip pocket, should a second trial, if any, result

in a complete acquittal.

A

Regardless of whether we agree with Williams that there was a

conviction for aiding and abetting, that conviction would not

preclude a second trial on the “greater aggravated offenses” in

Counts 21 through 58. It is plain that, following Apprendi, the

“injury factors” in 8 U.S.C. §§ 1324(a)(1)(B)(iii) and (iv) are

“elements” of “greater aggravated offenses,” as the government
16Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (holding that any fact,

other than a prior conviction, that increases the penalty for a crime beyond the

prescribed statutory maximum must be submitted to a jury and proved beyond a

reasonable doubt); Ring v. Arizona, 536 U.S. 584, 609 (2002) (applying Apprendi

to conclude that any fact that increases a defendant’s punishment to a possible

sentence of death must be found by a jury beyond a reasonable doubt).

178 U.S.C. § 1324(a)(1)(B)(ii).

18Apprendi, 530 U.S. at 490; Ring, 536 U.S. at 609; see also Castillo v.

United States, 530 U.S. 120 (2000); Jones v. United States, 526 U.S. 227 (2000);

Almendarez-Torres v. United States, 523 U.S. 224 (1999). This construction of

§ 1324 is bolstered by the Fifth Circuit’s Pattern Jury Instructions, which set

forth the elements for conviction of § 1324(a)(1)(A)(ii). The instructions do

not list any of the injury factors as elements of the basic offense. Citing

14

contends, rather than mere “sentencing factors,” as determined by

the district court.16

The transportation offense carries a base-level punishment of

five years imprisonment.17 Proof of the injury factors in both §§

1324(a)(1)(B)(iii) and (iv) increases the statutory maximum beyond

that provided in § 1324(a)(1)(B)(ii). With § 1324(a)(1)(B)(iii),

the maximum penalty increases to 20 years if the government proves

that during the commission of the offense, the defendant caused

serious bodily injury to, or placed in jeopardy the life of, any

person. Likewise, with § 1324(a)(1)(B)(iv), the maximum penalty

increase to life in prison or death if the government proves that

during the commission of the offense, the defendant caused the

death of any person. Following Apprendi, each additional fact––the

specific injury that resulted––must be alleged in the indictment,

submitted to the jury, and found beyond a reasonable doubt. In

short, each additional fact is an “element” of a greater aggravated

offense.18
Apprendi, the instructions note that § 1324 “describes aggravating factors” which

raise the statutory maximum penalty and must be “submitted as additional elements

if charged in the indictment.” Fifth Circuit Pattern Jury Instructions § 2.03.

19United States v. Bordeaux, 121 F.3d 1187, 1193 (8th Cir. 1997).

15

Given that the “injury factors” are elements of greater

aggravated offenses, the presence or absence of a conviction on the

lesser offense––basic transporting––is immaterial in light of the

jury’s express statement of deadlock on the injury factors. If

there were no conviction for aiding and abetting, then Williams’s

first trial ended with a hung jury, which does not preclude a

second trial. If we assume that there was a conviction, then we

would have a conviction on a lesser offense and a “hopelessly

deadlocked” jury on the greater offense. In such a case, we agree

with the Eighth Circuit that “where the jury expressly indicates

that it is unable to reach an agreement on the greater charge, a

conviction on a lesser included offense does not constitute an

implied acquittal of the greater offense and presents no bar to

retrial on the greater offense.”19

Williams, relying on Green v. United States, argues that the

conviction on the basic transportation offense, even as an aider

and abettor, implies that the jury acquitted him of everything

else. We disagree. In Green, the Supreme Court recognized that a

jury’s silence can be considered an implied acquittal. There, the

Supreme Court held that a jury’s verdict on second-degree murder,

coupled with silence on the greater offense (first-degree murder),
20Green v. United States, 355 U.S. 184, 190-91 (1957); see also Price v.

Georgia, 398 U.S. 323, 328-29 (1970) (holding that a guilty verdict on a

voluntary manslaughter charge and silence on a murder charge precluded retrial

of the greater offense).

21Green, 355 U.S. at 190; see also Price, 398 U.S. at 329.

16

was no different “than if the jury had returned a verdict which

expressly read: ‘We find the defendant not guilty of murder in the

first degree but guilty of murder in the second degree.’”20 On such

facts, the Double Jeopardy Clause precludes retrial of the greater

offense.21 Williams’s reliance on Green falls short where, as here,

the jury was not “silent” on the greater aggravated offenses. Both

jury notes, as well as the subsequent poll, plainly indicate that

the jury was “hopelessly deadlocked” on the injury factors in

Counts 21 through 58. A statement of hopeless deadlock is neither

a statement of silence, nor a statement of acquittal.

B

As things stand, the government, if it chooses, can retry

Williams on Counts 1 through 20 and on the “greater aggravated

offenses”––the transportation offense (§ 1324(a)(1)(A)(ii)) with

the additional injury factors (§§ 1324(a)(1)(B)(iii) and (iv))––in

Counts 21 through 58. We now turn to the remainder of Counts 21

through 58, which concern Williams’s role in the transportation

offense. Specifically, we examine whether the jury convicted him

of aiding and abetting the commission of the transportation offense

when it returned both an entry of “guilty,” as to the elements of

the offense, but a statement of “hopeless[] deadlock[],” as to his
228 U.S.C. § 1324(a)(1)(B)(i).

23See Apprendi, 530 U.S. at 490; Jones, 526 U.S. at 232-35.

24See Blockburger v. United States, 284 U.S. 299, 303-04 (1932).

17

role in the offense. We conclude that the jury failed to convict

Williams of any offense. Thus, the government may retry Williams

on the basic transportation offense in Counts 21 through 58––as

either a principal or as an aider and abettor.

1

First, the district court erred in this case when it engrafted

onto the elements of the transportation offense (§

1324(a)(1)(A)(ii)) an element of a greater aggravated

offense––namely, that the offense was committed “for the purpose of

commercial advantage or private financial gain.”22 The “financial

gain” fact is an “element” of a separate, greater offense.23 In

short, there are two offenses––(1) transporting and (2)

transporting for financial gain––and the former is a lesser

included offense of the latter.24

Although the district court gave the jury a correct

explanation of the four elements of transporting for financial

gain, that was error because the government proceeded on two

theories regarding Williams’s role in the offense: that of a

principal and that of an aider and abettor. As we have previously

held, when the government proceeds on an aider and abettor theory,

“the question of financial gain––whether by the defendant or
25United States v. Nolasco-Rosas, 286 F.3d 762, 767 (5th Cir. 2002).

268 U.S.C. § 1324(a)(1)(B)(ii); Nolasco-Rosas, 286 F.3d at 767.

18

others––is immaterial and should not be introduced into the picture

lest it cause confusion.”25

That confusion stems from the interplay between the

defendant’s role in the offense and the possible maximum sentences.

If the defendant’s role in the transportation offense is only that

of an aider and abettor, then the maximum punishment is 5 years

imprisonment under § 1324(a)(1)(B)(ii). Yet if the defendant

commits the offense as a principal and for financial gain, then the

maximum punishment is 10 years imprisonment under §

1324(a)(1)(B)(i). An aider and abettor, even one who commits the

offense for the purpose of financial gain, is only subject to a

maximum of 5 years imprisonment.26 Because the district court only

presented the jury with the “transporting for financial gain”

offense, the government was forced to seek a separate question on

Williams’s role in that offense. On that question the jury was

“hopelessly deadlocked,” which precludes the district court from

sentencing Williams. Without a determination of Williams’s role in

the offense, we cannot say whether the maximum term of imprisonment

is 5 years (under § 1324(a)(1)(B)(ii)) or 10 years (under §

1324(a)(1)(B)(i)).

2
27The charged asked the jury “to determine whether [Williams] acted as a

principal, as an aider and abettor, or both.”

28The first noted stated that the jury was “hopelessly deadlocked on the

sub-questions” in Counts 21 through 58. The second reiterated this deadlock:

“There is and has been no movement. We are deadlocked as before.”

29FED. R. CRIM. PROC. 31(a).

30Richardson v. United States, 526 U.S. 813, 817 (1999) (“[A] jury in a

federal criminal case cannot convict unless it unanimously finds that the

Government has proved each element.”); In re Winship, 397 U.S. 358, 364 (1970)

(“[W]e explicitly hold that the Due Process Clause protects the accused against

conviction except upon proof beyond a reasonable doubt of every fact necessary

to constitute the crime with which he is charged.”); Andres v. United States, 333

U.S. 740, 748 (1948).

31Justice Breyer explained,

Where, for example, an element of robbery is force or the threat of

force, some jurors might conclude that the defendant used a knife to

create the threat; others might conclude that he used a gun. But

that disagreement––a disagreement about means––would not matter as

long as 12 jurors unanimously concluded that the Government had

proved the necessary related element, namely, that the defendant had

threatened force.

Richardson, 526 U.S. at 817; see also Schad v. Arizona, 501 U.S. 624, 631-32

(1991) (plurality op.); Anderson v. United States, 170 U.S. 481, 499-501 (1898).

19

Second, we cannot sustain a conviction for aiding and abetting

because the jury did not unanimously agree that Williams’s role in

the offense was that of an aider and abettor. The jury was asked

to make this finding,27 but both jury notes confirm that they could

not reach unanimous agreement on one or the other.28 Conviction in

the federal system, however, requires a unanimous verdict.29 This

rule of unanimity extends to every element of the offense.30 A lack

of unanimity on Williams’s role in the offense may not be fatal,

however, as the unanimity requirement is not absolute. For

instance, unanimity is not required as to the particular means used

by the defendant to commit a particular element of the offense.31
3218 U.S.C. § 2.

3318 U.S.C. § 2; see also U.S. SENTENCING GUIDELINES § 2X2.1 (2005 ed.)

(providing that “[t]he offense level [for aiding and abetting] is the same level

as that for the underlying offense”).

20

Here, in light of the jury’s express and unequivocal statement of

“guilty,” we could extend that means exception to the rule of

unanimity to the defendant’s role in the offense.

We do not think the rule of unanimity ought to be extended so

far. Mere agreement on some form of culpable conduct is not

sufficient to convict Williams under § 1324. Unlike the general

aiding and abetting statute,32 the alien smuggling statute

distinguishes for purposes of punishment between a principal and an

aider and abettor. Under the general aiding and abetting statute,

a person who aids and abets the commission of an offense is treated

the same as a principal actor: “Whoever commits an offense against

the United States or aids, abets, counsels, commands, induces or

procures its commission, is punishable as a principal.”33 Cabining

the defendant’s role into a particular box is unnecessary. In

fact, the jury will seldom be asked to make an independent

determination of whether the defendant committed the offense as a

principal or as an aider and abettor. Both are sufficient for

conviction; both are treated the same for punishment.

We need not decide today whether, under the general aiding and

abetting statute, the jury’s lack of unanimity on the defendant’s

role in the offense is sufficient for conviction. The alien
21

smuggling statute distinguishes between a principal and an aider

and abettor for purposes of punishment. As the government

proceeded on both tracks regarding Williams’s role in the

transportation offense, the jury must unanimously agree on at least

one. The evidence in this case can tell two different stories. To

some, Williams could have appeared as a principal actor in the

conspiracy: driving the tractor-trailer; refusing to activate the

trailer’s refrigeration unit, despite advice from Holloway;

refusing to release the aliens; and ignoring the aliens’ pleas for

release. To others, Williams could have appeared to be a mule, a

mere pawn in the larger smuggling conspiracy: calling the other

individuals for instructions; demanding more money; purchasing

water bottles for the aliens; and leaving the scene once the aliens

forged their own escape. All we have is “hopeless[] deadlock[]” on

the specific question, and this is insufficient for conviction.

We recognize that, as a legal matter, any juror convinced that

Williams acted as a “principal” was also convinced that Williams

acted as an “aider and abettor.” But we decline to stretch the

rule of unanimity so far as to imply a conviction. We do not know

why the jury was unable to agree; all we know is that they could

not agree. Neither the charge nor any response to the jury notes

instructed the jury on how a single person could be “both” a

principal and an aider and abettor in the commission of a single

offense or explained that, as a legal matter, a juror convinced

Williams was a principal necessarily believed that Williams was
22

also an aider and abettor. When the jury announced that it could

not agree, their confusion was plain, but it went unaddressed. The

reality is that jurors persuaded that Williams played the

significant role of principal never agreed that his role was the

lesser one of aider and abettor, nor did jurors persuaded that

Williams’s role was that of aider and abettor ever agree that

Williams played the larger role of principal.

In light of the lack of basic guidance to the jury, we decline

to judicially convict Williams of aiding and abetting on the basis

of a legal inference. To do so would be to find meaning in a

“verdict” upon premises fundamentally different from those on which

the district court erroneously asked the jury to decide. This jury

did not unanimously agree on Williams’s role in the offense, and it

is not the case that the trial judge can simply default to the

lowest possible sentence, especially when that requires ignoring

the express statements of the jury. In short, the district court

erred when it entered a judgment of conviction on the supposed

“verdict” returned by the jury. There was no verdict.

VI

Accordingly, we VACATE the judgment of conviction entered by

the district court on the jury’s “verdict” in this case. Heeding

the plea of the district court regarding her crowded docket and in

view of the extraordinary history of this case, we REMAND this case

to the Chief District Court Judge of the Southern District of Texas
23

for random reassignment to another judge for trial, should the

government elect to proceed.
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APPENDIX A

§ 1324. Bringing in and harboring certain aliens

(a) Criminal Penalties

(1)(A) Any person who –– 

(i) knowing that a person is an alien, brings to or attempts to

bring to the United States in any manner whatsoever such

person at a place other than a designated port of entry or

place other than as designated by the Commissioner, regardless

of whether such alien has received prior official

authorization to come to, enter, or reside in the United

States and regardless of any future official action which may

be taken with respect to such alien;

(ii) knowing or in reckless disregard of the fact that an alien has

come to, entered, or remains in the United States in violation

of law, transports, or moves or attempts to transport or move

such alien within the United States by means of transportation

or otherwise, in furtherance of such violation of law;

(iii) knowing or in reckless disregard of the fact that an alien has

come to, entered, or remains in the United States in violation

of law, conceals, harbors, or shields from detection, or

attempts to conceal, harbor, or shield from detection, such

alien in any place, including any building or any means of

transportation;

(iv) encourages or induces an alien to come to, enter, or reside in

the United States, knowing or in reckless disregard of the

fact that such coming to, entry, or residence is or will be in

violation of law; or

(v) (I) engages in any conspiracy to commit any of the preceding

acts, or

(II) aids or abets the commission of any of the preceding

acts,

shall be punished as provided in subparagraph (B).

(B) A person who violates subparagraph (A) shall, for each alien in

respect to whom such a violation occurs –– 

(i) in the case of a violation of subparagraph (A)(i) or (v)(I) or

in the case of a violation of subparagraph (A)(ii), (iii), or

(iv) in which the offense was done for the purpose of

commercial advantage or private financial gain, be fined under

Title 18, imprisoned not more than 10 years, or both;

(ii) in the case of a violation of subparagraph (A)(ii), (iii),

(iv), or (v)(II), be fined under Title 18, imprisoned not more

than 5 years, or both;
25

(iii) in the case of a violation of subparagraph (A)(i), (ii),

(iii), (iv), or (v) during an in relation to which the person

causes serious bodily injury (as defined in section 1365 of

Title 18) to, or places in jeopardy the life of, any person,

be fined under Title 18, imprisoned not more than 20 years, or

both; and

(iv) in the case of a violation of subparagraph (A)(i), (ii),

(iii), (iv), or (v) resulting in the death of any person, be

punished by death or imprisoned for any term of years or for

life, fined under Title 18, or both.