* District Judge of the Northern District of California,

sitting by designation.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 94-50437

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BRAD EUGENE BRANCH, KEVIN WHITECLIFF,

JAIME CASTILLO, RENOS LENNY AVRAAM,

PAUL FATTA AND GRAEME LEONARD CRADDOCK,

Defendants-Appellants.

Appeals from the United States District Court

for the Western District of Texas

August 2, 1996

Before HI GGINBOTHAM and DUHÉ, Circuit Judges, and SCHWARZER *

,

District Judge.

HIGGINBOTHAM, Circuit Judge:

This is an appeal of six defend ants convicted of federal

crimes for their role in the dramatic and tragic ev ents at Mount

Carmel outside Waco, Texas during the ear ly months of 1993. A

firefight erupted when federal agents from the Bureau of Alcohol,

Tobacco, and Firearms attempted to execute a search and arrest

warrant on February 28, 1993. Four agents and three residents of

the compound lost their lives. Each defendant now challenges his

conviction and sentence.2 I.

The Branch Davidians are a 65-y ear-old sect originally

affiliated with the Seventh Day Adventist Church. Their faith

urges a life of Bible study with emphasis on an imminent,

apocalypt ic confrontation between the Davidians and the "beast".

The group's leader, Vernon Howell, instructed members to arm

themselves in preparation for the final battle. Howell changed his

name to David Koresh in 1990 and preached that "if you can't kill

for God, you can't die fo r God." He told his followers that the

"beast" included the U.S. Government and, specifically, the ATF.

Koresh and other Davidians stockpiled weapons and ammunition.

They fortified the compound called Mount Carmel, building a twofoot high concrete barrier and an underground bunker. Koresh used

"Bible studies" to instruct the residents in the use of firearms.

In short, the Davidians turned Mount Carmel into a small fortress.

The ATF discovered that the Davidians had ama ssed weapons,

including ful ly automatic machineguns and hand grenades. On

February 25, 1993, ATF agents obtained an arrest warrant for Koresh

and a search warrant for the Mount Carmel compound.

The ATF decided to execute the search and arrest warrant on

February 28, 1993, but, as it was to learn, the element of surprise

had been lost. Shortly before the 28th, an article in the local

newspaper had speculated that federal agents would likely come for

Koresh. Around 8:00 A.M., an undercover ATF agent, Roberto

Rodriguez , visited the Davidian compound and spoke with Koresh.

During the conversation, Koresh took a phone call. When he3

returned, a visibly shaken Koresh told Rodriguez, "Robert, neither

the AFT or National Guard will ever get me. They got me once,

t hey'll never get me again." Koresh then walked over to the

windows and looked toward the farmhouse used by the undercover ATF

agents. He turned to Rodriguez and said, “They're coming, Robert.

The time has come." Rodriguez left the compound around 9:00 A.M.

and advised the A TF that Koresh had learned of the raid at least

forty-five minutes earlier. The ATF decided to proceed with the

arrest and search warrants.

When the ATF’s decision to continue was made, approximately

115 men, women, and children, ran ging in age from 6 months to 70

y ears, resided at Mount Carmel. The ATF plan called for ATF

agents, who were transported to the compound in two cattle

trailers, to quickly unload and encircle the compound, while

National Guard he licopters conducted a diversionary raid on the

rear of the Mount Carmel compound.

The plan quickly went awry. The helicopters did not arrive

until after the ATF agents had begun unloading from the cattle

trailers. As the agents unloaded, gunfire erupted from the

compound. The agents returned fire. In the ensuing gunbattle,

four agents and three Davidians were killed. Twenty-two ATF agents

and four Davidians were wounded.

The FBI then surrounded the compound, and, for 51 days, law

enforcement and the Davidians were at a stand-off. During the

stand-off, approximately 30 Davidians left the compound and were

taken into custody. On April 19, FBI agents attempted to end the4

stand-off by flooding the compound with gas, but the Davidians did

not leave. Around noon, the Davidians set the compound on fire.

Seventy-five of the remaining 84 occupants perished in the blaze.

On August 3, 1993, a grand jury returned a superseding 10-

count ind ictment against twelve of the surviving Davidians. The

counts relevant to this appeal are:

Count 1: From on or before February 19, 1992, to April

19, 1 9 93, conspiracy to murder federal officers and

employees engaged in the performance of their official

duties in violation of 18 U.S.C. § 1117.

Count 2: On or about February 28, 1993, aiding and

abetting the murder of four agents of the Bureau of

Alcohol, Tobacco & Firearms (ATF) while said agents were engaged in the performance of their official duties, in

violation of 18 U.S.C. §§ 1111( a), 1114 and 18 U.S.C.

§ 2.

Count 3: On or about February 28, 1993, using or

carrying of a firearm during and in relation to a crime

of violence, to wit, Count 1, in violation of 18 U.S.C.

§ 924(c)(1).

Count 7: On or about April 19, 1993, knowing and

unla wful possession of a firearm, namely an explosive

grenade, in violation of 26 U.S.C. § 5861(d).

Count 9: From on or about February 19, 1992 to February

1993, a conspiracy to unlawfully manufacture and possess machineguns in violation of 18 U.S.C. § 371 and 18 U.S.C.

§ 922(o).

Count 10: In February, 1992 to February 19, 1993, aiding

and abetting in the unlawful possession of machineguns in

violation of 18 U.S.C. §§ 2, 922(o).

The Government dismissed the charges against one of the twelve

Davidians, Kathryn Schroeder, pursuant to a plea bargain. After a

jury trial lasting nearly two months, the jury acquitted four of

the Davidians on all counts on which they were charged. The jury

also acquitted all eleven of the Davidians on Count 1, which5

alleged a conspiracy to murder federal agents. However, the jury

found seven of the Davidians, Renos Avraam, Brad Branch, Jaime

Castillo, Graeme Craddock, Livingstone Fagan, Ruth Riddle, and

Kevin Whitecliff, guilty on Count 3 for using or carrying a firearm

during a crime of violence. The jury acquitted all eleven of the

defendants on Count 2 for aiding and abetting the murder of federal

agents but convicted Avraam, Branch, Castillo, Fagan, and

Whitecliff on the lesser-included offense of aiding a nd abetting

the voluntary manslaughte r of federal agents. Finally, the jury

convicted Craddock on Count 7 for unlawful possession of a hand

grenade and convicted Paul Fatta on Counts 9 and 10 for conspiring

to manufacture and possess machineguns and for aiding and abetting

the unlawful possession of machineguns, respectively.

The district court sentenced the defendants t o prison terms

ranging from 15 to 40 years, along with fines and restitution. Six

of the eight Davidians are now before us, appealing both their

convictions and sentences. They have raised a host of contentions.

We first address the constitutionality of Fatta's firearms

convictions. We then turn to the arguments concerning the jury

instructions and the district court's conduct of the trial. We

then address the sufficiency of the evidence. Finally, we review

the sentences imposed by the district court.

II.

The jury convicted Fa tta of conspiring to unlawfully

manufacture and possess machinegu ns (Count 9) and aiding and

abetting the unlawful possession of machineguns (Count 10), both in6

violation of 18 U.S.C. § 922(o). On the eve of trial, Fatta moved

to dismiss the indictment on both counts. He argued that § 922(o)

exceeded Congress' powers under the Commerce Clause. The district

court disagreed, noting that several other circuits had upheld the

constitutionality of § 922(o). S ee United States v. Hale

, 978 F.2d

1016 (8th Cir. 1992), cert. denied

, 507 U.S. 997 (1993); United

States v. Evans , 928 F.2d 858 (9th Cir. 1991). We review de novo

the district court's ruling.

18 U.S.C. § 922(o) prohibits, subject to two, narrow

exceptions not relevant here, any person from transferring or

possessin g a machinegun. There is no requirement that the

machinegun have been in intersta te commerce. Subsequent to the

district court's ruling, we held in United States v. Kirk

, 70 F.3d

791 (5th Cir. 1995), that § 922(o) did not exceed Congress' power

under the Commerce Clause. That panel decision has been vacated,

and the case is currently pending before the en banc court. 78

F.3d 160 (5th Cir. 1996).

The en banc court's resolution of this issue will govern the

ultimate validity of Fatta's convictions on Counts 9 and 10. Under

pre- Kirk case law now binding this panel, we must reject this

contention. We will, however, hold the mandate pending decision in

Kirk

.

III.

The district court instructed the jury that to convict the

defendants of murder und er Count 2, it had to find beyond a

reasonable doubt that "the Defendant under consideration did not7

act in self-defense or defense of another." The court explained

self-defense and the defense of another, and then turned to the

lesser-included offense of voluntary manslaughter.

Avraam, Branch, Casti llo, and Whitecliff argue that selfdefense is also a defense to voluntary manslaughter. The Davidians

requested an instruction to that effect and objected at the charge

conference to its omission.

A.

We review the dis trict court's refusal to give the proposed

instruction for abuse of discretion. U nited States v. CorreaVentura

, 6 F.3d 1070, 1076 (5th Cir. 1993). "As a general

proposition 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 (198 8), and we presume an abuse of discretion

"where the district court 'refuse[s] a charge on a defense theory

for which there is an evidentiary foundation and which, if believed

by the jury, would be legally sufficient to render the accused

innocent." I d. (quoting United States v. Rubio

, 834 F.2d 442, 446

( 5th Cir. 1987)). The court may, however, refuse to give a

requested instruction that lacks sufficient foundation in the

evidence. U nited States v. Tannehill

, 49 F.3d 1049, 1057 (5th

Cir.), cert. denied , 116 S.Ct. 167 (1995).

We review the record cognizant that the “merest scintilla of

evidence” in the defendant’s favor does not warrant a jury

instruction regarding an affirmative defense for which the8

defendant bears the initial burden of production. U nited States v.

Jackson

, 726 F.2d 1466, 1468 (9th Cir. 1984). Under M athews

, there

must be “evidence sufficient for a reasonable jury to find in [the

defendant’s] favor.” We have insisted that the evidence be

sufficient to raise a factual question for a reasonable jury. S ee

United States v. Lucien

, 61 F.3d 366, 374-77 (5th Cir. 1995);

United States v. Jones

, 839 F.2d 1041, 1053 (5th Cir.), cert.

denied , 486 U.S. 1024 (1988).

Our decisions leave no doubt that while a particular piece of

evidence standing alone may support inference s that warrant an

instruction, those inferences may evaporate after reviewin g the

entire record. For example, in United States v. Ivey , 949 F.2d

759, 768-69 (5th Cir. 1991), cert. denied

, 506 U.S. 819 (1992), we

affirmed the district court’s refusal to instruct the jury on the

defense of entrapment. We explained that evidence supporting

entrapment was overwhelmed by other evidence in the record and

there was no need to instruct the jury regarding it. I d. ; see also

Un ited States v. Pruneda-Gonzalez , 953 F.2d 190, 197 (5th Cir.)

(holding evidence of entrapment was insufficient to shift burden of

persuasion to government), cert. denied

, 504 U.S. 978 (1992);

United States v. Stanley

, 765 F.2d 1224, 1234-35 (5th Cir. 1985)

(same). The requirement that the evidence be sufficient to

persuade a reasonable juror is not limited solely to the defense of

entrapment but extends to all defenses for which the defendant

bears the initial burden of production. S ee United States v. Liu

,

960 F.2d 449, 454 (5th Cir.) (duress), cert. denied , 506 U.S. 9579

(1992). A district court cannot refuse to give an instruction for

which there is sufficient evidence in the record for a reasonable

juror to harbor a reasonable doubt that the defendant did not act

in self defense, but the district court is not required “to put the

case to the jury on a bas is that ‘essentially indulges and even

encourages speculations.’” U nited States v. Collins

, 690 F.2d 431

(5th Cir. 1982) (affirming refusal to give lesser-included offense

instruction), cert. denied , 460 U.S. 1046 (1983).

Th e dissent measures the evidence in the record by an

incorrect standard, m isled by our statements in P erez v. United

States

, 297 F.2d 12 (5th Cir. 1961), and Strauss v. United States

,

376 F.2d 416 (5th Cir. 1967), that the district court must instruct

the jury on a defense for which there is “any foundation in the

evidence.” The measure of “an y evidence” never commanded

allegiance. S ee United States v. Andrew

, 666 F.2 d 915, 922-24 &

nn.10,11 (5th Cir. 1982) (quorum) (noting intracircuit split on the

issue). To the contrary, panels of this court were chary of

literally applying Perez and Strauss

. S ee United States v.

Fischel

, 686 F.2d 1082, 1086 n.2 (5th Cir. 1982) (refusing to

resolve split); United States v. Leon , 679 F.2d 534, 539 n.5 (5th

Cir. 1982) (same). If the matter rested there, the dissent would,

perha ps, be justified in exploiting this dissonance. M athews

,

however, resolved the matter. Indeed, in U nited States v. Stowell

,

953 F.2d 188 (5th Cir.), cert. deni ed , 503 U.S. 908 (1992), a nd

cert. denied , 506 U.S. 902 (1992), we explained:

Although we h ave on several occasions before and

after Mathews observed that the court must char ge the10

jury on a defense theory when there is any evidence to

support it, this language is admittedly incomplete. Its

shorthand implies t hat a mere scintilla of evidence in

support of a defense theory requ ires the giving of an

instruction on that theory at the defendant’s request.

Of course, any evidence in support of a defensive theory

must be sufficient for a reasonable jury to rule in favor

of the defendant on that theory. This is what we meant

when we stated in this case that a court may decide as a

matter of law that the evidence

. . . fails t o raise a

factual question for the jury.

Id. at 189 (citations omitted). Similarly, Judge Posner in U nited

States v. Perez

, 86 F.3d 735, 736 (7th Cir. 1996), interpreted

Mathews as rejecting the notion that “any evidence,” no matter how

weak or insufficient, entitled the defendant to an instruction on

an affirmative defense. Not surprisingly, all but one of the

decisions reiterating the “any evidence” standard of Perez and

Strauss came prior to Mathews

. And U nited States v. Kim

, 884 F.2d

189, 193 (5th Cir. 1989), the only decision in this circuit to cite

either Perez or Strauss after Mathews

, did not involve the question

whether there was sufficient evidence to warrant the requested jury

instruction.

The dissent relies upon dicta from the century-old decision of

Stevenson v. United States

, 162 U.S. 313 (1896), but that reliance

is mistaken. Stevenson , which addressed the evidence needed to

trigger a jury instruction regarding a lesser-included offense, did

not embrace the proposition that even a scintilla of evidence

warrants a jury instruction. To the contrary, S tevenson expressly

noted that “[t]here might be cases where t he uncontradicted

evidence was so clear and overwhelming” to justify refusing to

instruct the jury on the lesser-included offense. I d. at 321.11

Indeed, the Court in Stevenson re ferred with approval to its

earlier decision in Sparf v. United States

, 156 U.S. 51 (1895), in

which the Court explained that even if there is “some evidence

bearing upon a particular issue in a cause, but it is so meagre as

not, in law, to justify a verdict in favor of the party producing

it, the court is in the line of duty when it so declares to the

jury.” I d. at 99-100; see also Andersen v. United States

, 170 U.S.

481, 496-98 n.1, 510-11 (1898) (holding that evidenc e did not

warrant lesser-included offense instruction, despite the fact that

the defendant testified that he killed the deceased out of fear for

his life).

Decisions rendered in the century since S tevenson dispelled

any doubt regarding that case’s meaning and the quantum of evidence

obliging the court to instruct the jury. Despite any uncertainty

in our decisions bef ore it, Mathews broke no new ground. The

Supreme Court had earlier rejected the argument that any evidence,

even a scintilla, warranted a jury instruction on an affi rmative

defense or lesser-included of fense. In K eeble v. United States

,

412 U.S. 205, 208 (1973), the Court exp lained that a court must

instruct a jury on a lesser-included offense only “if the evidence

would permit a jury rationally to find him guilty of the lesser

offense and acquit him of the greater.” S ee also Schmuck v. United

States

, 489 U.S. 705, 716 n.8 (1989) (reiterating Keeble standard);

Beck v. Alabama

, 447 U.S. 625, 635 (1980) (same); Patterson v. New

York

, 432 U.S. 197, 231 & n.18 (1977) (Powell, J., dissenting)

(noting that an issue such as self-defense will not be submitted to12

the jury where the defendant’s evidence does not just ify a

reasonable doubt regarding the issue). M athews followed this

consistent line.

In short, it is not enough that an item of evid ence viewed

alone and unweighed against all the evidence supports an inference

that a defendant acted in self defe nse. See United States v.

Harrison

, 55 F.3d 163, 167 (5th Cir.) (holding that evidence if

viewed in isolation warranted lesser-included offense instruction

but not if viewed in context of the entire record), cert. denied

,

116 S.Ct. 324 (1995). The critical distinction is that a single

item of evidence can be overwhelmed by other evidence in the

record. Id.

The distinction is neither academic nor prissy; it defines the

character of appellate review of the criminal trial, reflecting our

effort to curb any tendency of criminal appeals to become a

lawyer’s sporting search for “error.” The jury plays a central

role at trial, but the threshold to the jury room has never been so

low as the dissent would have it. This is not word play; there is

a vast difference in concept between the requirement of sufficient

evidence and a scintilla. There is an equally large difference in

their application. This difference is central to the dissent,

leading it to rely upon snapshots of evidence that lose their image

when placed on the dynamic screen of the entire record, as we think

they must be. Cf. United States v. Browner , 889 F.2d 549, 554-55

(5th Cir. 1989). Few verdicts reached after lengthy trials could

survive such an appellate role. In short, a scintilla rule can, in2 Self-defense is an affirmative defense on which the

defendant bears the initial burden of production. U nited States v.

Alvarez

, 755 F.2d 830, 842 n.12 (11th Cir.), cert. denied

, 474 U.S.

905 (1985), and cert. denied

, 482 U.S. 908 (1987). If and only if

the defendant has met his burden of production, the Government

bears the burden of persuasion and must negate self-defense beyond

a reasonable doubt. Id.

13 application, turn a criminal trial and the review of a conviction

into a sporting contest for lawyers. C f. Harrison

, 55 F.3d at 168

(noting that e vidence must be sufficient to warrant instruction

lest the instruction serve “merely as a device for defendant to

invoke th e mercy-dispensing prerogative of the jury”). When the

contended-for inference becomes an absurdity in light of all the

facts adduced at trial, we invade no province of the jury in

refusing to pretend it has probative value. S ee Sparf

, 156 U.S. at

64-106.

None of this diminishes the role of the jury. This country

from the beginning ha s prized the role of the jury. That rich

history has also recognized that trial judges have ro les and

responsibilities too. I d. Of course, our able brother in dissent

contends for none of these untoward results. In our view, however,

these realities lie behind and are reflected in our insistence that

evidence be more than a scintilla, that it be sufficient to create

a reasonable doubt that the defendants did not act in self defense.

We hold that the district court was not obligated to give the

proposed self-defense ins truction and did not err in the

instruction it gave. It is true, as a general proposition, that

self-defense and the related defense of another ar e affirmative

defen ses to both murder and voluntary manslaughter. 2 However,14

these general principles must accommodate a citizen’s duty to

accede to lawful government p ower and the special protection due

federal officials discharging official duties. See United States

v. Feola

, 420 U.S. 671, 679 (1975 ). "We do not need citizen

avengers who are authorized to respond to unlawful police conduct

by gunning down the offending officers." U nited States v. Johnson

,

542 F.2d 230, 233 (5th Cir. 1976). Other, non-violent remedies are

available. Id.

We need not explore the law of self-defense in confrontations

between citizens and law enforcement officers to answer the

question asked in thi s case. As we will explain, a reasonable

juror could not doubt that the defendants knew their targets were

federal agents. Equally, the defendants responded to the agents’

lawful force with a deadly barrage of gunfire. Given the

extraordinary amount of automatic and large-calib er gunfire that

the defendants rained upon persons they knew were federal agents,

the law offers no shelter for pleas that the defendant used only

force that was “responsive to excessive force.” The legal claim

simply has no factual leg.

That the district court allowed self-de fense to the murder

charges is nothing about which the de fendants can complain.

Whether correct or not, we need not decide. That instruction

regarding murder seeds no right to a similar plea of self-defense

to voluntary manslaughter. Our issue is error, not symmetry.

In sum, the evidence did not require the proposed self-defense

instruction. Of course, the defendants may have feared for their15

life once gunfire erupted, but that fear does not warrant a selfdefense instruction. There must be sufficient evidence from which

a reasonable juror might infer, at a minimum, either that 1) the

defendants did not know the ATF agents' identity, see United States

v. Morton

, 999 F.2d 435, 437-38 (9th Cir. 1993), or that 2) the ATF

agents' use of force, viewed from the perspective of a reasonable

officer at the scene, was objecti vely unreasonable under the

circumstances. See United States v. Span , 970 F.2d 573, 577 (9th

Cir. 1992), cert. denied , 507 U.S. 921 (1993). That evidence was

not adduced at trial.

B.

The record belies the defendants’ contention that they did not

know the identity of the ATF agents outside the compound on

February 28th. In addition to their long preparation for the

arrival of law of ficers, Koresh and the defendants had specific

knowledge well in advance that the raid of February 28th was

coming. On the morning of the raid, Koresh told the ATF's

undercover agent, Roberto Rodriguez, who briefly visi ted the

Davidians that morning, that "neither t he ATF or National Guard

will ever get me. They got me once and they'll never get me

again." Koresh repeatedly said, "They're coming, Robert. They're

comin g." Several Davidians overheard Koresh's remarks. Other

residents also learned of the impending ATF raid. Craddock, for

example, learned that David Jones had heard that seventy-five ATF

agents had arrived at the airport and that there might be a raid.16

Even if we assume that not every defendant had been forewarned

of this specific raid, the record demonstrates beyond doubt that by

the time the agents arrived at the compound, defendants knew the

agents' identity as federal law enforcement officers. ATF Special

Agent Roland Ballesteros, who was one of the first agents to

approach the front of the compound after the raid began, testified

that as he ran toward the front door of the compound, he saw David

Koresh standing in the open front doorway. Ballesteros yelled

loudly "Police! Lay down!" and "Search Warrant!" to Koresh several

t imes. Koresh responded by asking "What's going on?" and

Ballesteros again yelled "Search Warr ant! Lay Down!" As

Ballesteros approached the doorway, Koresh "made some kind of

smirk" and then closed the door. Ballesteros testified that "there

was no doubt in my mind that [Koresh] knew who we were and what we

were there for." Other agents also testified that they heard

shouts of "Police", "Search Warrant," and "Federal agents" as they

exited the cattle trailers and approached the compound.

Even though a reasonable juror could doubt that the Davidians

heard the repeated cries of "poli ce" and "search warrant", a

reasonable juror could not overlook the visible indicators of the

agents’ identity. The Davidians point out that neither the cattle

trailers nor the helicopters had government markings on them.

However, most of the ATF agents, including the first agents to

approach the compound, wore "full raid gear." This gear included

military-style helmets and black, bullet-resistant vests.

Significantly, the vests had a large, gold ATF badge and the words17

"ATF" and "Police" inscribed in bright yellow, inch-high letters on

their fronts. "ATF" and "Police" were also emblazoned on the back

of the vests in large, yellow letters visible at a distance. Some

agents wore "baseball" hats with a large yellow badge on the front.

These markings were plainly visible in the broad daylight that

morning and informed anyone who looked that these were federal law

enforcement o fficials. This was not the garb of unidentified

assailants. The notion that this was some alien and unidentified

army is beyond the pale.

The defendants point to the testimony of Kathryn Schroeder, a

Davidian present in the compound during the raid who later

testified on behalf of the Government. She testified that she did

not see the ATF markings on the uniforms nor did she hear the

agents announ ce their purpose or identity as they approached the

residence.

Schroeder's view of the agents, however, was obstructed by a

four-and-a-half foot high, wooden fence in front of her first-floor

window. In contrast, the Davidians in the front foyer and on the

second floor--the location from which most of the gunfire came--had

an unobstructed view of the approaching ATF agents. Schroeder

acknowledged that she assumed that the individuals approaching the

compound were government officials. Indeed, Koresh had long taught

that the Government--the "beast"--would come. Finally and most

importantly, Schroeder's testimony does not suggest t hat the

defendants did not know the agents' identity and purpose. That one

Davidian, who did not participate in the gun battle, who remained18

under her bed for the duration of it, and who did not confirm the

identity she assumed, says nothing about the knowledge of those

armed and participating in the battle. Not even Schroeder will

deny that the Davidians knew the agents’ identity. S ee United

States v. Jackson

, 726 F.2d 1466, 1468 (9th Cir. 1984) (noting that

witnesses' testimony that they heard no police warning "is not

evidence that the officers did not identify themselves").

Viewing the record as a whole and in the light most favorable

to the defendants, we are not persuaded that a reasonable jury

could harbor a reasonable doubt t hat the defendants knew the

approaching ATF agents' identity. To the contrary, the evidence in

the record fits well with other cases affirming the refusal to give

a self-defense or knowledge of official identity instruction. S ee

,

e.g.

, United States v. Streit

, 962 F.2d 894, 898 (9th Cir.) (noting

that "record contains ample evidence indicating that the men

clearly identified themselves as FBI agents and that S treit was

aware of thei r official status"), c ert. denied

, 506 U.S. 962

(1992); Alvarez

, 755 F.2d at 844-45 & n.15 (noting that "agents who

converged on the motel loudly announced their presence and

identity"); see also United States v. Ochoa

, 526 F.2d 1278, 1282 &

nn.4,5 (5th Cir. 1976) (rejecting the defendant's claim that he did

not know the agents' identity where, like here, the evidence in the

record indicated that the agents had announced their identity and

wore official raid jackets with insignia visible).

C.19

The record also belies the contention that the ATF agents used

excessive force. The defendants raise three arguments: First,

that the ATF f ired the first shots on February 28; second, that

regardless of who fired first, the ATF fired indiscriminately into

the compound, endangering the lives of women and children; and,

third, that excessive force was inherent in the nature of the raid

ATF conducted. The evidence in the record does not support any of

these claims.

1.

The evidence does not permit any reasonable inferen ce but

that the Davidians fired the first shots that morning. Agent after

agent testified that the first shots they heard on February 28 came

from the compound. In addition to the testimony of the ATF agents,

reporters for the local newspaper and television station who

witnessed the gunfight testified that the first s hots were fired

from the compound.

In response to this evidence, the defendants point to three

pieces of evidence. First, the Davidians point to a statement

given by Agent Ballesteros to the Texas Rangers shortly after the

February 28 raid. In that statement, Ballesteros reported that he

assumed that the first shots that he heard came from the ATF "dog

team" shooting the Davidians' guard dogs.

At trial, however, Ballesteros testified that he no longer

believed his earlier assumption. Rather, he testified that the

first shots originated from the compound. Moreover, the evidence

at trial contradicted the foundation for his earlier assumption.3 The writt en report of Castillo’s post-arrest statement

was not introduced at trial; rather, Gerardo de los Santos, a Texas

Ranger, testified regarding Castillo’s post-arrest statement. We

review Ranger de los Santos’ testimony, not the written report.

20 The "dog team" never shot the dogs in the compound, as it was

assigned to do.

Second, the defendants point to the te stimony of Jack

Zimmermann, but his testimony sheds no light on who fired first.

Zimmermann, an attorney for one of the Davidians, visited the

compound on April 1, more than a month after the ATF raid.

Zimmermann testified that he observe d bullet holes in the front

door and walls of the compound. In his opinion, the holes had been

caused by shots coming from outside the compound. However,

Zimmermann acknowledged that he could not tell who fired first. At

most, his testimony indicates that gunfire was exchanged.

Third, the defendants rely on a statement that defendant

Castillo gave to the Texas Rangers after he exited the compound on

April 19. In that statement, Castillo described the scene at the

front door of the compound on February 28 as the ATF agents

unloaded from the cattle trailers and approached the r esidence.

According to Castillo, Koresh held the front door ajar and said,

"Wait a minute, there's women and children in here." Castillo

claimed that gunfire immediately erupted through the door from the

outside, injuring Koresh.

This self-serving, post-arrest statement, however, is not

sufficient to warrant the requested instruction. 3 It stands alone

against the uniform and overwhelming testimony of numerous agents21

and members of the media and, significantly, against the undisputed

physical facts. That every ATF agent and member of the media who

testified under oath at trial disputed this version of the facts,

whi ch Castillo related in an unsworn post-arrest statement, is

perhaps powerful enough, but we do not rest there.

Castillo’s unsworn observation cannot be squared with

undisputed facts. The ATF agents testified that as they approached

the residence, they heard gunfire coming from the front of the

compound. Agent Ballesteros was one of the first agents out of the

cattle trailer that stopped in front of the compound. The agents

who followed Ballesteros out of the trailer came under large

caliber and automatic gunfire. As Ballesteros ran to his assigned

positi on at the front door, he saw Koresh standing in the foyer

holding one of the double front doors open. According to

Castillo’s post-arrest statement, Koresh announced that there were

women and children in the compoun d; after that announcement,

gunfire came through the door and, he “believed,” Koresh was hit.

At that time, Ballesteros was either at or near the front door.

Ballesteros was carrying a shotgun loaded with oo-buckshot at the

ready position. If fired, the shotgun blast would have been

conspicuous. Its telling signature was absent as demonstrated by

photographs of the gunbattle at the front of the compound. Rather,

Ballesteros, who was hit after Koresh closed the door, took cover

in the dog pen next to the front door, where he remai ned, pinned

down, for the duration of the gunbattle. In other words, to accept

Castillo’s unsworn recollection of events, a reasonable juror would4 There is no evidence that the other defendants claiming

error were present at the front door or otherwise shared in

Castillo’s knowledge.

22 have had to believe either that Ballesteros shot at Koresh at the

front door or that some other ATF agent fired through Ballesteros

to the front door. Neither version works. Castillo’s unsworn

recollection is no more than a scintilla of evidence that, when

viewed in light of the testimony and evidence in this six-week-long

trial, does not support the contested-for inference.

Even if it did, Castill o, the sole defendant capable of

claiming t he inferential benefit of his post-arrest statement, 4

would be not entitled to the self-defense instruction as a matter

of law. It is a necessary precondition to the claim of selfdefense that the defendants be free from fault in prompting the

ATF’s use of force. W allace v. United States

, 162 U.S. 466, 472

(1896); see also Melchior v. Jago

, 723 F.2d 486, 493 (6th Cir.

1983) (noting that under Ohio law, “it is a necessary condition of

the right to claim self defense that the accused kill be without

fault”), cert. denied

, 466 U.S. 952 (1984). “One cannot provoke a

fight and then rely on a claim of self-defense when that

provocation results in a coun terattack, unless he has previously

withdrawn from the fray and communicated this withdrawal.” H arris

v. United States , 364 F.2d 701 (D.C. Cir. 1966) (per curiam); see

also Andersen

, 170 U.S. at 508 (noting that self-defense is

unavailable where accused “brings on the difficulty for the purpose

of killing the deceased, or violation of law on his part is the

reaso n of his expectation of an attack”); A ddington v. United23

States

, 165 U.S. 184, 187-88 (189 7) (same); G ourko v. United

States

, 153 U.S. 183, 191 (1894) (same); Rowe v. United States

, 370

F.2d 240, 241 (D.C. Cir. 1966) (per curiam) (same). Judge

Spottswood Robinson explained in United States v. P eterson , 483

F.2d 1222 (D.C. Cir. 1973), cert. denied , 414 U.S. 1007 (1973):

It has long been accepted that one cannot support a claim

of self-defense by a self-generated n ecessity to kill.

The right of homicidal self-defen se is granted only to

those free from fault in the difficulty; it is denied to

slayers who incite the fatal attack, encourage the fatal

quarrel or otherwise promote the necessitous occasion for

taking life. The fact that the deceased struck the first

blow, fired the first shot or made the firs t menacing

gesture d oes not legalize the self-defense claim if in

fact the claimant was the actual provoker.

Id. at 1231 (footnotes omitted) (emphasis added).

We need not define prec isely the line separating lawful

conduct from unlawful provocation to hold that Castillo’s conduct

falls on the impermissible sid e of the line. Although we agree

that engaging in u nlawful conduct requiring law enforcement

officials to investigate does not, by itself, constitute

provocation, “an affirmative unlawful act reasonably calculated to

produce an affray foreboding injurious or fatal consequences is an

aggression which, unless renounced, nullifies the right of

homicidal self-defense.” Id. at 1233 (footnotes omitted).

We are not persuaded that Castillo was entitled to any selfdefense instruction even if the events occurred as he related them

in his post-arrest statement. In U nited States v. Thomas

, 34 F.3d

44, 48 (2d Cir.), cert . denied , 115 S.Ct. 527 (1994), a nd cert.

denied

, 115 S.Ct. 527 (1994), and cert. denied

, 115 S.Ct. 683

(1994), and cert. denied , 115 S.Ct. 774 (1995), and cert. denied

,24

115 S.Ct. 1134 (1995), the Second Circuit held that defendants who

had been convicted of murder were not entitled to a self-defense

instruction where the jury had also convicted the defendants of the

attempted robbery of the deceased. The court explained that the

defendants’ “need to defend themselves arose out of their own armed

aggression.” I d. Similarly, in L aney v. United States

, 294 F

.

412, 413 (D.C. Cir. 1923), the court affirmed the manslaughter

conviction of a defendant who successfully fled a race riot but

then left his safe haven in search of the rioters. The court

explained that “when [the defendant] adjusted his gun and stepped

out in the areaway, he had every reason to believe that his

presence there would provoke trouble. We think his conduct in

adjusting his revolver and going into the areaway was such as to

deprive him of any right to invoke the plea of self-defense.” I d.

at 414.

The jury convicted Castillo of using or carry ing a firearm

during a crime of violence. The predicate crime of violence was

co nspiracy to murder federal agents. This included stockpiling

military-type weapons and preparing for the fight with the “beast”.

Moreover, according to Castillo’s own description of the events in

his post-arrest statement, he donned battle dress upon learning of

the impending ATF raid. He retrieved his assault rifle and raced

to the front door. We are persuaded that Castillo’s retrieval of

an assault rifle and his preparation for a gunbattle, all occurring

as part of the conspiracy to murder federal agents that the jury

necessarily found him guilty of as part of its verdict on the 1825

U.S.C. § 924(c)(1) weapons charge, deprived Castillo of any claim

of self-defense. A member of a conspiracy to murder federal

agents, who dresses for combat, retrieves an assault rifle, and

proceeds to the front door to confront government agents executing

a lawful warrant, is not entitled to claim the benefit of selfdefense when the hoped-for confrontation with the agents occurs.

Nor may Castillo claim the benefit of the “imperfect” version

of self-defense. Some contend that a defendant who played a role

in creating the confrontation that led to a homicide may not escape

culpability altogether but may nevertheless reduce his crime from

murder to manslaughter. S ee 2 W. LaFave & A. Scott, Substantive

Criminal Law § 7.11(a) (1986); see also Wallace , 162 U.S. at 472-

73. We need not enter this academic debate, however. The trial

judge avoided it by giving the self-defense instruction to the

murder charge. Castillo was convicted of manslaughter; his failure

to be free from fault, at the least, negates his plea of selfdefense to the charge of manslaughter.

In short, these pieces of evidence, even when considered

together in the light most favorable to the defendants, do not

support an inference that the agents fi red the first shot.

Moreover, even evidence that the ATF agents fired the first shot

would not have been sufficient by itself to warrant the selfdefense instruction. The ATF agents testified that ATF policy and

training directed agents to fire only if they saw an individual

threatening the agent's or someone else's life. Initiating gunfire

in those circumstances would not be unreasonab le. Although the26

defendants contend that the ATF did not follow its own policy but

fired indiscriminately into the compound, that argument proves the

point: evidence that the ATF fired first without evidence that

such fire was indiscriminate or o therwise excessive does not

warrant a self-defense instruction.

2.

The Davidians point out that several ATF agents testified that

firing through walls and into windows in which there was no

discernable threat would be unreasonable because of the danger to

innocents and the possibility for escalation. Seizing on this, the

Davidians point to Kathryn Schroeder's testimony that gunfire came

throu gh the window in her room at the beginning of the raid. In

addition, the Davidians and Whitecl iff in particular highlight

Marjorie Thom as' video deposition in which she stated that a

gunshot shattered the window in her loft on the third floor as she

watched the helicopters approach the compound at the beginning of

the raid.

This testimony will not support an inference that the ATF

agents used excessive force. The pilots of the helicopters all

testified tha t no shots were fired from the helicopters.

Significan t ly, the unchallenged testimony is supported by the

physical facts. The helicopters were unarmed, and the doors on the

aircraft were closed, thereby preventing agents inside from firing

on the compound. Thomas herself acknowledged that she did not know

if the bullet that shattered her window came from the helicopter.27

Regardless, there was no evidence that any of the defendants

either came under indiscriminate, unprovoked fire or knew that such

f ire was taking place. Even if, for example, the National Guard

helicopters did fire, the contended-for inference t hat the four

defendants acted in self-defense by letting loose a volley of fire

upon the ATF agen ts on the other side of the large compound is

untenable.

The dissent’s focus upon the testim ony of Kathryn Schroeder

and Marjorie Thomas forgets that neither is among those convicted

of the voluntary manslaughter of federal agents. That Schroeder or

Thomas may have been, if charged, entitled to the self-defense

instruction does not mean that t he four defendants convicted of

voluntary manslaughter are so entitled. The question is whether

there is suff icient evidence from which a reasonable juror could

infer that one of the four defendants, not an uncharged resident

present somewhere in the compound, acted in response to excessive

force. There are no vicarious defenses.

Our refusal to attribute Schroeder’s and Thomas’ experiences

and knowledge to all the residents of the compound highlights a

fundamental difference between the majority and the d issent in

their approach to the evidence. We agree that “each defendant is

entitled to individual consideration of the charges against him and

his defenses.” S ee post at 7. It is also the case, we think, that

the knowledge of one resident cannot simply be imputed to all who

are at the compound. Defendants need not testify regarding their

own knowledge, but there must be sufficient evidence to reasonably28

infer that the defendants knew of and were responding to excessive

force. Here, there was none. Neither Thomas nor Schroeder

testified that they told any of the defendants about the gunfire

they witnessed. Indeed, Schroeder remained in her room, never

relating her experience during the gunfight to others. Nor is

there evidence that any defendant could otherwise have had that

knowledge in this large, multi-building compound, particularly

during the raging gunbattle that th e defendants own actions

provoked.

3.

Finally, the Davidians argue that excessive force was inherent

i n the nature of the ATF raid. According to the defendants,

sending over seventy well-armed agents to arrest Koresh and execute

a search warrant for a residence housing women and children was

excessive. We disagree.

The execution of search and arrest warrants necessarily

involves some degree of force. G raham

, 490 U.S. at 396; Streit

,

962 F.2d at 899. The ATF had cause to believe that the Davidians

had amassed a large supply of weaponry, including grenades and

fully automatic assault rifles. In light of this knowledge and the

concern that other methods would endanger the lives of residents of

the center, the ATF concluded that a "dynamic entry" raid was the

proper method to execute the search and arrest warrants. This

evidence will not support an inference of unreasonable force.

Nor is there evidence that the agents possessed an excessive

amount of firepower under the circumstances. All of the agents29

carried 9 millimeter pistols and a limited supply of ammu nition.

Of the seventy-plus agents participating in the raid, only six

agents carried AR-15 semiautomatic rifle s capable of shooting

rounds that could penetrate a wall. None of the weapons were fully

automatic, though some could fire in two-round bursts. Indeed, as

events bore out, the ATF possessed too little, not too much,

firepower.

Surely, a citizen may not initiate a firefight solely on the

ground that the police sent too many well-armed officers to arrest

him. The suggestion that a defendant would be entitled to claim

self-defense simply by pointing to the police’s tactical decision

to send twenty heavily-armed officers instead of two lightly-armed

ones is untenable. We reject this invitation for individuals to

forcibly resist arrest and then put their arresters on trial for

the reasonableness of their tactical decisions.

We conclude that the district court did not err in refusing to

instruct the jury on self-defense and the defense of another with

regard to the voluntary manslaughter charge.

IV.

A.

After several days of d eliberations, the jury returned its

verdict acquitting all of the Davidians on Count 1 for conspiring

to murder federal agents. The jury convicted Avraam, Branch,

Castillo, Craddock, and Whitecliff on Count 3 for using or carrying

a firearm during and in relation to the crime charged in Count 1.

Believing that the two verdicts were inconsist ent, the district30

cou rt summoned the attorneys to the bench before announcing the

verdict. The Government suggested sending the jury back for more

deliberations to resolve the perceived inconsistency. The defense

attorneys opposed that suggestion and asked the court to render a

verdict of not guilty on Count 3. Apparently agreeing with the

defense, Judge Smith stated that "I don't see anyway [the jury] can

correct their mis take except by a finding of not guilty on Count

Three." Judge Smith ended the bench conference without announcing

a ruling. The jury's verdict was announced. Judge Smith asked

whether anyone desired to poll the jury. No attorney responded.

Judge Smith discharged the jury.

After the jury had left, Judge Smith announced his intention

to issue a written order setting aside the guilty verdict on Count

3:

The guilty finding as to Count Three will have to be set

aside, because, of necessity, the jury could not find a

Defe ndant guilty of that offense without first having

f ound that Defendant guilty of the Conspiracy offense

alleged in Count One, and the jury found all Defendants

not guilty of that offense. So, that portion of the

verdict simply cannot stand. There seemed to be no point

in asking the jury to retire and reconsider it, because

the only decision they could have made was to change that

finding to not guilty, so the Court will set that finding

aside.

Two days later, the Government moved to reinstate the jury's

verdict on Count 3. The Government argued that the jury's decision

to acquit the defendants on the predicate offense charged in Count

1 did not require an acquittal on the compound offense charged in

Count 3. The David ians responded, arguing that reinstatement of

the jury's verdict would violate their double jeopardy and due5 Avraam and Castillo separately contend that we should

revisit our decisions in Munoz-Fabela and its progeny. We are

bound by those decisions, however. S ee Burlington Northern

R ailroad Co. v. Brotherhood of Maintenance of Way Employees

, 961

F.2d 86, 89 (5th Cir. 1992), cert. denied , 506 U.S. 1071 (1993).

31 process rights. The district court rejected the Davidians'

arguments and reinstated the jury's guilty verdict on Count 3 on

March 9, 1994.

Judge Smith acknowledged that there was no necess ary

inconsistency in the jury's verdicts on Counts 1 and 3. S ee United

States v. Munoz-Fabela , 896 F.2d 908, 911 (5th Cir.) (noting that

"it is only the fact of the offense, and not a conviction, that is

needed to establish the required predicate" under § 924(c)), cert.

denied , 498 U.S. 824 (1990); United States v. Ruiz , 986 F.2d 905,

9 11 (5th Cir.) (holding that acquittal on predicate offense d oes

not bar conviction under § 924(c)), cert. denied

, 114 S.Ct. 145

(1993); see also United States v. Powell

, 469 U.S. 57, 67-69

(1984) . On appeal, most of the Davidians appear to accept that

much. 5 Rather, the Davidians reurge their double jeopardy and due

process arguments.

Regarding double jeopardy, the Davidians cl aim that the

district court’s comments at the side-bar conference constituted a

pre-verdict judgment of acquittal on Count 3. According to the

defendants, re versal of a pre-verdict judgment of acquittal

constitutes double jeopardy. We disagree.

The district court did not announce any formal ruling at the

side-bar conference before receiving the jury 's verdict. To the

contrary, he ended the bench conference without comment and ordered32

the clerk to read the jury's verdict, including the verdict on

Count 3. Even one of the defense attorneys inquired after the

publication of the verdict "what the Court was going to do" on

Count 3. The jury's verdict became final when it was announced in

open court and the defendants were given the opportunity to poll

the jury. U nited States v. White , 972 F.2d 590, 595 (5th Cir.

1992), cert. denied

, 507 U.S. 1007 (1993), and cert. denied

, 507

U.S. 1007 (1993).

Even were we to construe the comments at the bench conference

as a formal ruling setting aside the jury's verdict on Count 3, it

would not be a judgment of acquittal. "[A] defendant is acquitted

only when 'the ruling of the judge, whatever its label, actually

represents a resolution [in the defendant's favor], correct or not,

of some or al l of the factual elements of the offense charged.'"

United States v. Scott

, 437 U.S. 82, 97 (1978) (quoting United

States v. Martin Linen Supply Co.

, 430 U.S. 564, 571 (1977)). That

the district court rendered a decision in favor of the defendants

pr ior to the publication of the jury's verdict does not bar the

G overnment from seeking to overturn that decision, either at the

district court or on appeal, unless the decision rests on a

determination that the Government's evidence is legally

insufficient to sustain a conviction. S cott

, 437 U.S. at 97, 100.

The record is clear that Judge Smith did not direct his

comments at the bench conference to the sufficiency of the evidence

on Count 3. Rather, he shared with counsel a misapprehension

regarding the validity of inconsistent jury verdicts. The record33

establishes that it is solely that misapprehension, understandable

in that tension-filled moment, and not any doubt regarding the

sufficiency of the evidence that led Judge Smith to set aside the

jury's verdict.

The district court's post-verd ict decision to set aside the

jury’s verdict gives defendants no comfort. The Fifth Amendment

does not bar the government from appealing post-verdict judgments

of acquittal. United States v. Boyd , 566 F.2d 929, 932 (5th Cir.

1978); Government of the Virgin Islands v. Christensen , 673 F.2d

713, 718-19 (3d Cir. 1982). A fortiori , the district court's own

reinstatement of a final jury verdict of guilt--or, stated another

way, the district court's decision to reverse its earlier decision-

-does not twice put defendants in jeopardy. U nited States v.

LaSpesa , 956 F.2d 1027, 1034 (11th Cir. 1992).

The Davidians also claim that reinstating the guilty verdict

denied them due process. The Davidians argue that they relied on

the Judge's comments at the bench conference suggesting that he

agreed that the guilty verdict on Count 3 had to be set aside and

did not ask Judge Smith to instruct the jury to render a directed

verdict of not guilty on Count 3 or, alternatively, to order the

jury to resume deliberations to resolve the inconsistent verdicts.

In essence, the Davidians contend that they w ere "sandbagged" by

the district court.

Neither the Constitution nor gene ral principles of federal

criminal law require a d istrict court, when confronted with

inconsistent jury verdicts, to instruct the jury to return a34

verdict of not guilty on all counts. In H arris v. Rivera

, 454 U.S.

339, 348 (1981), the Supreme Court rejected a due process challenge

to a conviction based on an inconsistent verdict. "Inconsistency

in a verdict is not a sufficient reason for setting it aside." I d.

at 345. What H arris established as a matter of constitutional law,

United States v. Powell

, 469 U.S. 57, 65 (198 4), reaffirmed as a

matter of federal criminal law. In short, the district court was

under no duty, constitutional or otherwise, to instruct the jury to

return a verdict of not guilty on Count 3. To the contrary, P owell

precluded that option.

Similarly, the district court was not obligated to return the

jury for further delib erations, to resolve the inconsistent

verdicts. P owell may mandate, and certai nly points the district

court to accept inconsistent verdicts. 469 U.S. at 69. As a

practical matter, pushing a jury to continue its work when it has

a final verdict risks other difficulties. S ee United States v.

Straach

, 987 F.2d 232, 242-43 (5th Cir. 1993) (noting that "a judge

errs in instructing the jury to deliberate further if the jury has

reached a final verdict"); White , 972 F.2d at 594-95 (same).

Even if the Davidians were "due" this o ption, the district

court did not deprive them of it. At the bench conference, the

Government recommended that the jury be sent back to continue

deliberating, but defense counsel adamantly opposed that

suggestion.

Castillo separately contends that the district court's

reinstatement of the jury's guilty verdict on Count 3 deprived the35

Davidians of the opportunity to poll the jury. Rule 31(d) of the

Federal Rules of Criminal Procedure provides that, before the

v erdict is recorded, "the jury shall be polled at the request of

any party or upon the court's own motion." A defendant can waive

his right to a jury poll by failing to request the court to poll

the jury. United States v. Beldin , 737 F.2d 450, 455 (5th Cir.),

cert. denied , 469 U.S. 1075 (1984).

The Davidians waived their right to have the jury polled by

failing to make a timely request. After the clerk read the jury's

verdict, Judge Smith asked whether anyone desired that the jury be

polled, and seeing no response, remarked, "I take it not." He then

discharged the jury. That the Davidians misapprehended the need to

poll the jury on Count 3 due to their mis taken belief that Judge

Smith had set aside the guilty verdict does not excuse their

failure to request the poll. Indeed, even after the Government

moved to reinstate the jury's verdict on Count 3, the Davidians did

not specifically complain that reinstatement would violat e their

right to have the jury polled.

Finally, Craddock separately contends that the district

court's reinstatement of the jury's verdict violates his Sixth

Amendment right to counsel because his attorney was not called to

participate in the bench conference after the jury returned with

its verdict.

The Sixth Amendment entitles the defendant to the assistance

of counsel at all "critical stages" of a cri minal proceeding.

Tucker v. Day

, 969 F.2d 155, 159 (5th Cir. 1992). The pre-verdict36

bench conference was not a critical stage of the Davidians' trial,

however. The district court rendered no decision regarding the

i nconsistent verdicts at the bench conference. To the contrary,

the bench conference was a brief, "informational meeting" at which

the district court informally advised counsel of the jury's verdict

and at which no prejudicial action was taken. C f. People v. Hardy

,

825 P.2d 781, 849 (Cal.), c ert. denied

, 506 U.S. 987 (1992), and

cert. denied

, 506 U.S. 1056 (1993); Roker v. State

, 416 S.E.2d 281,

283 (Ga. 1992). After the jury's verdict was announced, Craddock's

counsel had the opportunity to poll the jury, to address the

district court regarding the inconsistent verdicts, and,

eventually, to respond to the Government's motion to reinstate the

jury's verdict. We are not persuaded that the district court's

failure to call Craddock's counsel to the pre -verdict bench

conference violated Craddock's Sixth Amendment right to counsel.

In short, the district court's decision to reinstate the

jury's guilty verdict on Count 3 was correct.

B.

The district court sua sponte ordered the use of an anonymous

jury. Whitecliff, along with Avraam and Branch, objected to the

court's order, claiming that the use of an anonymous jury violated

their right to a fair trial befor e an impartial jury. Fatta

approved the anonymous jury.

On appeal, Whitecliff argues that the use of an anonymous jury

hindered the selection of an impartial jury and led jurors to

believe that defendants posed some threat of harm to them, thereby37

undermining the presumption of innocence. Pointing out that most

cases upholding the use of anonymous juries have involved organized

crime o r violent drug syndicates threatening to disrupt the

judicial process, the Davidians argue that, to justify an anonymous

jury, it is "crucial" that there be evidence that the defendants or

their associates pose some threat to the judicial process and that

there was no evidence that any of the defendants or individuals

associated with them was a threat to the jury.

Referring to the jury as "anonymous" is misleading. Anonymity

has long been an important element of our jury system. Jurors are

randomly summoned from the community at large to decide the single

case before them and, once done, to "inconspicuously fade back into

the community." United States v. Scarfo , 850 F.2d 1015, 1023 (3d

Cir.), cert. denied

, 488 U.S. 910 (1988); see also 3 William

Blackstone, Commentaries *378. "Anonymous jury" has come to mean

something different in recent years, signaling the district court's

decision to withhold certain biographical information about

potential jurors from the parties involved. That said, we should

be wary of painting with too broad a br ush. "Anonymous" juries

include those about whom more has been concealed than here. See

,

e.g.

, Uni ted States v. Ross , 33 F.3d 1507, 1519 (11th Cir. 1994)

(withholding names, addresses, places of employment, and spouses'

names and places of employm ent), c ert. denied

, 115 S.Ct. 2558

(1995). The jurors here were not "anonymous" except in the most

literal sense. The district court ordered only the jurors' names

and addresses be withheld from the parties. Otherwise, the court38

provided the defendants with a wealth of information about the

venire, including occupations a n d names of employers.

The dec ision to withhold biographical information about the

jurors from the parties in a criminal prosecution is weighty, its

validity turning on the individual, fact-specific circumstances of

each case. Deciding to withhold even the name and address of a

member of the venire "require[s] a trial court to make a sensitive

appraisal of the climate surrounding a trial and a prediction as to

the potential security or publicity problems that may arise during

the proceedings." U nited States v. Childress

, 58 F.3d 693, 702

(D.C. Cir. 1995), cert. denied

, 116 S.Ct. 825 (1996). Accordingly,

we review such a district court decision for abuse of discretion.

United States v. Krout , 66 F.3d 1420, 1426 (5th Cir. 1995), cert.

denied

, 116 S.Ct. 963 (1996), and cert. denied

, 116 S.Ct. 963

(1996).

"'[T]he use of an anonymous jury is constitutional when, there

is strong reason to believe the jury needs protection and the

district court takes reasonable precautions to minimize any

prejudicial effects on the defendant and to ensure that his

fundamental rights are protected.'" Id. at 1427 (quoting United

States v. Wong

, 40 F.3d 1347, 1376 (2d Cir. 1994)) (internal

quotation marks omitted). We have listed some of the usual

considerations:

(1) the defendants' involvement in organized crime; (2)

the defendants' participation in a group with the

capacity to harm jurors; (3) the defendants' past

attempts to interfere with the ju dicial process or

witness es; (4) the potential that, if convicted, the

defendants will suffer a lengthy incarceration and39

substantial monetary penalties; and, (5) extensive

publicity that could enhance the possibility that jurors'

names would become public and expose them to intimidation

and harassment.

Id. (citations omitted).

We did not suggest, however, that these or some aggregate must

be established on pain of reversal. Rather, these are concerns

commonly present in cases, such as Krout

, where courts have upheld

the use of an anonymous jury. Other circumstances may also justify

its use. Indeed, while evidence that the defendant has in the past

or intends in the future to tamper with the jury may be sufficient

to warrant an anonymous jury, it is by no means necessary. U nited

States v. Edmond

, 52 F.3d 1080, 1091 (D.C. Cir.), cert. denied

, 116

S.Ct. 539 (1995), and cert. denied

, 116 S.Ct. 539 (1995). District

courts should look to the "totality of the circumstances." Ross

,

33 F.3d at 1521 n.26.

The district court reasoned tha t an anonymous jury was

appropriate because of the "enormous amou nt of world-wide media

att ention" generated by the case and the emotionally charged

atmosphere surrounding it. Not all celebrated trials merit an

anonymous jury, but "[t]he prospect of publicity militates in favor

of jury anonymity to prevent exposure of the jurors to intimidation

or harassment." U nited States v. Wong

, 40 F.3d 1347, 1377 (2d Cir.

1994), cert. denied , 115 S.Ct. 1968 (1995), and cert. denied , 115

S.Ct. 1968 (1995), and cert. denied

, 115 S.Ct. 2568 (1995), and

cert. denied

, 116 S.Ct. 190 (1995); United States v. Vario

, 943

F.2d 236, 240 (2d Cir. 1991), cert. denied , 502 U.S. 1036 (1992).

It is not just the media attention. This trial aroused deep40

pas sions. The district court feared the potentially disruptive

effects of such public attent ion on the trial in general and the

jurors in particular. That several jurors received mail regarding

the case during the trial only confirmed the concern of the

district court. C f. Unit ed States v. Sanchez , 74 F.3d 562, 565

(5th Cir. 1996) (rejecting anonymou s jury where "there was no

indication that the jurors in this case would be subjected to the

type of extensive publicity that might bring about intimidation and

harassment"). The court was also concerned that persons bent on

mischief might confuse the Davidian jurors with jurors in a highprofile trial involving organized crime figures occurring at the

same time in the same courthouse. These concerns justified the

district court's decision to use an anonymous jury.

Significantly, there is no showing that refus ing to release

the names and addresses of the jury prejudiced the defendants'

ability to select an impartial jury. The court furnished the

defendants with answers to 80 detailed questions submitted by the

district court to prospective jurors. No defendant argues to us

that the infor mation obtained from these questionnaires was

deficient. S ee Childress

, 58 F.3d at 704 (upholding anonymous jury

where "court conducted a searching voir dire and gave jurors an

extensive questionnaire, the scope of which appellants do not

challenge").

We also emphasize that at voir dire, the court asked the

defendants’ proposed questions and elicited additional information

regarding potential juror bias. S ee Wong

, 40 F.3d at 137741

(upholding anonymous jury where "extensive" voir dire ade quately

explored prospective juror bi as). In short, the contention that

the use of the anonymous jury hindered the Davidians' ability to

select an impartial jury sorely underestimates the ability of

counsel t o use the available "arsenal of information" about each

prospective juror. U nited States v. Barnes

, 604 F.2d 121, 142 (2d

Cir. 1979), cert. denied , 446 U.S. 907 (1980).

Similarly, the use of an anonymous jury did not undermine the

defendants' presumption of innocence. At heart, the Davidians'

argument rests on a speculative inference that the jurors were more

likely to render a guilty verdict because of their belief that the

defendants were dangerous. Such speculation is unwarranted.

Indeed, it may be that "[a] juror who fears a defendant's

retaliation might be more apt to return a guilty verdict despite

such fears rather than because of them." S carfo

, 850 F.2d at 1026.

In any event, the district court instructed the jury regarding

the non-defendant-related need for anonymity and the presumption of

innocence. Moreover, at voir dire, Judge Smith explained his

decision to use an anonymous jury because of the public attention

surrounding the case and the fear that the jury would be confused

with the jury in the organized crime case being conducted at the

same time down the hall. Judge Smith then cautioned:

Now, that's why we're do ing this. But I need to make

certain that's not--that's not going to have any negative

impact in your minds towards the Defendants. I have no

indica tion whatsoever that any of these Defendants or

their families or friends would be any threat to any juror selected in this case, and I want to be sure you

fully understand that.42

Judge Smith asked whether anyone had "negative feelings" toward the

defendants because of the use of an anonymous jury. No one

responded. In addition, Judge Smith instructed the jury on the

presumption of innocence both at voir dire and in the final charge.

These cautionary instruct ions, which compare favorably to those

used in other cases in which the use of an anonymous jury has been

upheld, ensured that the defendants' presumption of innocence was

not compromised. See United States v. Riggio , 70 F.3d 336, 340 &

n. 23 (5th Cir. 1995) (up holding use of anonymous jury where the

district court "took effective steps to minimize any prejudicial

effects associated with an anonymous jury"), cert. denied

__ S.Ct.

__ (1 996); United States v. Darden , 70 F.3d 1507, 1533 (8th Cir.

1995) (same), cert. denied

,

__ S.Ct.

__ (1996); Edmond

, 52 F.3d at

1093; United States v. Thomas

, 757 F.2d 135 9, 1364-65 & n.1 (2d

Cir.), cert. denied

, 474 U.S. 819 (1985), and cert. denied

, 474

U.S. 819 (1985), and cert. denied

, 479 U.S. 818 (1986); United

States v. Tutino

, 883 F.2d 1125, 1133 (2d Cir. 1989), cert. denied

,

493 U.S. 1081 (1990), and cert. denied , 493 U.S. 1082 (1990).

We conclude that the decision to not disclose the names and

addresses of the jurors did not violate the David ians'

constitutional rights to a fair trial before an impartial jury. To

the contrary, the district court’s decision reflected great care.

C.

On April 19, 1993, the Texas Rangers arrested Castillo after

he fled the blazing compound. Later that day, Castillo gave a43

statement to Texas Ranger Gerardo de los Santos, who prepared a

written report of the interview.

During the trial, the Government moved for an order precluding

Castillo from offering into evidence exculpatory statements in the

report. The Government argued that such statements were

inadmissible hear say. Anticipating Castillo's response to the

motion, the Government also argued that Rule 106 of the Federal

Rules of Evidence did not require their admission if the Government

introduced other, inculpatory statements in the repor t. The

district court granted the Government's motion in part.

At trial, the Government called Ranger de los Santos to

testify regarding certain portions of Castillo's post-arrest

statement, particularly those concerning the events on February 28,

the day of the ATF raid. The actual report was not introduced into

evidence. During the direct examination of Ranger de los Santos,

the district court denied Castillo's attempt to introduce the

following underlined, exculpatory statements contained in the

Ranger's report of the post-arrest interview:

7. The following was ascertained from Castillo reference his

knowledge and participation reference the initial raid by

ATF on 02-28-93:

A. That on Sunday, 02-28-93, in the early morning hours,

CASTILLO woke up, got dressed in camouflag e style

clothes, and went outside to work on the concrete slab

being built over the bunker that is supposed to be a

torna do shelter. After going outside, CASTILLO stated

that it was too cold, and he decided to go back in and go

to bed.

B. CASTILLO stated that after he laid down, he heard

someone say that something was going to happen. CASTILLO

got up and got dressed again. This time he dressed in a

bla ck shirt and black pants. CASTILLO commented, "I

looked like the ATF." CASTILLO also put on a vest that44 was capable of holding eight (8) ammunition magazines of

an AR-15 that he was given before 02-28-93.

C. CASTILLO doesn't remember the exact time, but stated

he looked out the window of his room facing the front

area of the compound and saw two (2) cattle trucks

driving up to the compound. CASTILLO identified his room

as being the third room facing the front from the

entrance door.

D. After seeing the cattle trucks, CASTILLO went out

into the hallway and saw Vernon HOWELL. He told HOWELL

what he had seen and accompanied HOWELL to the front

door. CASTILLO was carrying an AR-15 rifle. That HOWELL

was wearing regular clothes and unarmed.

E. CASTILLO stated that when they got to the front door,

HOWELL opened the door and yelled out, "Wait a minute.

There's women and children in here." Then all of a

sudden shots were fired at the fr ont door where he

believes HOWELL was shot. At this time CASTILLO stated

he tried to chamber a round in his rifle, but that it

jammed. That Perry JONES was also in the foyer unarmed

and several other men that CASTILLO states he can't

remember who they were, nor if they were armed or not.

F. After his rifle failed, CASTILLO states that he ran

down the hallway and back into his room where he picked

up his own 9mm Beretta handgun. CASTILLO then ran out,

continuing down the hallway toward the other end of the

compound, and went into a room that is located second to

the last on the west side of the compound facing the

front of the compound.

G. As CASTILLO was about to enter said room, he looked

into the room located directly ac ross and observed

"Winston" laying on the floor dead with a gunshot wound

to the head.

H. CASTILLO went into the room identified as McBEAN,

SUMMERS, and HIPSMAN'S room. CASTILLO stated he took

cover during the shooting, never firing a shot. CASTILLO

also stated no one in his room fired a round. CASTILLO

claims that he doesn't know who fired a weapon inside.

I. That after a while, CASTILLO heard someone running

down the hallway yelling cease fi re. According to

CASTILLO, this person sounded like Brad BRANCH.

J. After the cease fire, CASTILLO went to the kitchen

area and picked up an AK-47 rifle that was laying on a

table. CASTILLO observed Adebowado "DaBo" DAVIES in the

kitchen area armed with an AR-15 rifle. CASTILLO looked

out the kitchen door facing the pool and observed a

wounded ATF Agent on the chapel roof. He then observed

four ATF Agents, 3 men and 1 black female approach to

remov e another agent. CASTILLO stated that he never

aimed his rifle at these agents.

K. CASTILLO stated that he doesn't remember anything

else after this date. CASTILLO did state that during the45 standoff he was assigned guard duty at the chapel along

with "DaBo." CASTILLO'S shift was from 6:00 P.M. to

12:00 midnight during these days. CASTILLO was requested

to give a written statement, but stated he would think

about it.

8. According to CASTILLO, he was given the AR-15 weeks prior

to 02-28-93, along with three (3) or four (4) magazine

clips and ammunition. CASTILLO doesn't remember who gave

him the rifle.

* * * *

10. CASTILLO states that he heard that Winsto m, HIPSMAN,

Peter GENT, Perry JONES, an d Jaydean WENDEL had been

killed. That WENDEL was asleep in bed when she was shot.

That GENT had bee n killed by the helicopters and JONES

had been shot in the legs and stomach. That the dead had

been taken to the bunker area because th ey started to

smell bad. That he didn't participate in the removal or

burial of the dead.

11. CASTILLO states that he never received firearms training

by anybody, but did shoot his weapons a couple of times

in the past. That he fired his weapons only a couple of

times into bales of hay in the gym area and assumes the

women also did this.

12. CASTILLO states that there was a lot of ammo kept in the

compound and he personally observed one or two grenades

at one time.

* * * *

16. In reference to the undercover ATF Agents that moved in

across the compound, CASTILLO claims that they knew they

were agents because they were too old to be students and

drove expensive vehicles.

17. CASTILLO'S duties at the compound were to help construct

the tornado shelter, play drums, and study the Bible.

We review the district court's decision for abuse of

discretion. U nited States v. Abroms

, 947 F.2d 1241, 1250 (5th Cir.

1991), cert. denied , 505 U.S. 1204 (1992). Rule 106 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 or any

other writing or recorded stateme nt which ought in

fairness to be considered contemporaneously with it.

Fed.R.Evid. 106. This rule partially codifies the common-law "rule

of completeness." B eech Aircraft Corp. v. Rainey

, 488 U.S. 153,

1 72 (1988). Its purpose is "to permit the contemporaneous46

int roduction of recorded statements that place in context other

writings admitted into ev idence which, viewed alone, may be

misleading." U nited States v. Jamar

, 561 F.2d 1103, 1108 (4th Cir.

1977).

The Government first argues that Rule 106 does not apply to

Castillo's post-arrest statement. Noting that the rule by its

terms only applies to "a writing or recorded statement", the

Government points out that Ranger de los Santos' report of

Castillo's post-arrest statement was not introduced into evidence.

R ather, Ranger Santos testified based on his own recollection of

the post-arrest interview.

The advisory committee's not e to Rule 106 distinguishes

between writings and recorded statements, on the one hand, and

conversations, on t he other. S ee Fed.R.Evid. 106 advisory

committee's note (noting that rule "does not apply to

conversations"). Other circuits have held that Rule 106 does not

apply to testimony regarding conversations, see United St ates v.

Haddad

, 10 F.3d 1252, 1258 (7th Cir. 1993); United States v.

Castro

, 813 F.2d 571, 576 (2d Cir.), ce rt. denied , 484 U.S. 844

(1987), though they have held that Rule 611(a) imposes an

obligation for conversations similar to what Rule 106 does for

writings. Haddad , 10 F.3d at 1258; Castro , 813 F.2d at 576.

Assuming but not deciding that the government used the

recorded statement at trial in a manner that brought it under Rule

106, we agree with the Go vernment that Rule 106 does not require

the admission of the excluded portions of Castillo's post-arrest47

statement. Although different circuits have elaborated Rule 106's

"fairness" standard in different ways, compare United States v. Li

,

55 F.3d 325, 329 (7th Cir. 1995) with Marin

, 669 F.2d at 84, common

to all is the requirement that the omitted portion be relevant and

"necessary to qualify, explain, or place into context the portion

already introduced." U nited States v. Pendas -Martinez , 845 F.2d

938, 944 (11th Cir. 1988); United States v. Crosby

, 713 F.2d 1066,

1074 (5th Cir.), cert. denied

, 464 U.S. 1001 (1983). Castillo has

failed to show how any of the five, excluded portions of his postarrest statement qualify, explain, or place i nto context other

portions about which Ranger de los Santos testified. We address

each excluded statement in turn.

Castillo first argues that the district c o urt improperly

excluded paragraph 7G of Ranger de los Santos' report: "As

CASTILLO was about to enter said room, he looked into the room

located directly across and observed 'Winston' laying on the floor

dead with a gunshot wound to the head." According to Castillo,

this statement explains why l ater, after the cease-fire had been

declared, he went to the kitchen and picked up an AK-47. The

district court excluded the statement as irrelevant to any of the

issues in the trial.

While we think that the excluded portion was relevant, we are

not persuaded that it was necessary to qualify, explain, or place

into context Castillo's statement regarding his actions after the

cease-fir e had been declared. The excluded portion referred to

events that occurred in the opening moments of the gun battle on48

February 28. The cease-fire was declared several hours later. We

find no abuse of discretion in the trial court’s judgment calls

regarding completeness and context.

Casti llo next challenges the district court's exclusion of

paragraph 7H: "CASTILLO went into the room identified as McBEAN,

SUMMERS, and HIPSMAN'S room. CASTILLO stated he took cover during

the shooting, never firing a shot. CASTILLO also stated no one in

his room fired a round. CASTILLO claims that he doesn't know who

fired a weapon inside." According to Castillo, this statement

corrects the impression that he fired a gun that day, an impression

allegedly created by his earlier statement that he returned to his

room and picked up his own 9mm Beretta handgun. The district court

excl uded the statement as "a self-serving inculpatory [sic]

statement that does not contradict, explain, or qualify the rest of

the statement." We find no abuse of discretion.

Ranger de los Santos testified that Castillo said that he went

to his room, picked up his 9mm Beretta handgun, and ran d own the

hall to another room. The cold fact that he went into his room and

picked up his handgun remains unqualified and unexplained. We do

not doubt the exculpatory nature of the excluded statement, but

that does not require its admission under Rule 106. U nited States

v. Smith

, 794 F.2d 1333, 1335 (8th Cir.), cer t. denied , 479 U.S.

938 (1986).

Castillo next contest s the district court's exclusion of

paragraph 10:

CASTILLO stat es that he heard that Winstom, HIPSMAN,

Peter GENT, Perry JONES, and Jaydean WENDEL had been49

killed. That WENDEL was asleep in bed when she was shot.

That GENT had been kill ed by the helicopters and JONES

had been shot in the legs and stomach. That the dead had

been taken to the bunker area be cause they started to

smell bad. That he didn't participate in the removal or

burial of the dead.

According to Castillo, this statement explains why he stood guard

in the chapel after February 28. The district court excluded that

statement as "inadmissible hearsay that does not qualify or explain

the subject matter of the portion offered by the Government." We

find no abuse of discretion.

Excluding Castillo's statem e nt about his learning of the

deaths of other Davidians did not mislead the jury about Castillo's

admission that he had stood guard in the chapel area after February

28. The excluded statement did not tie Castillo's learning of the

deaths of the other Davidians and his decision to stand guard after

the 28th. The statement does not specify when Castillo learned of

the deaths. From the Ranger's report, it appears that Castillo

learned of the deaths after he began guard duty.

Castillo next challenges the exclusion of the first sentence

of paragraph 11: "CASTILLO states that he never received firearms

training by anybody, but did shoot his weapons a couple of times in

the past." According to Castillo, this statement was erroneously

excluded, while testimony regarding the remainder of paragraph 11

and all of paragraph 12 was adm itted. In its amended order, the

district court ruled that the statement was excludable as

inadmissible hearsay that does not qualify or explain the remainder

of paragraph 11.50

We do not reach the merits of the district court's ruling. At

trial, Ranger de los Santos did not testify about Castillo's

statement, contained in paragraph 11, that he had fired his weapons

only a couple of times into bales of hay. Therefore, there was no

prejudicial omission for Rule 106 to correct.

Finally, Cas tillo challenges the exclusion of paragraph 17:

"CASTILLO'S d uties at the compound were to help construct the

tornado shelter, play drums, and study the Bible." According to

Castillo, this statement counters the impression that Castillo was

part of a conspiracy to murder federal agents. The district court

excluded the statement as irrelev ant and as inadmissible hearsay

that does not clarify or explain any other statement. We agree on

both counts. Castillo fails to explain how any of Ranger de los

Santos' testimony misled the jury and requi red the admission of

paragraph 17.

In short, the district court did not abuse its discretion in

refusing to admit these portions of Castillo's post-arrest

statement pursuant to Rule 106. We acknowledge the danger inherent

in the selective admission of post-arrest statements. U nited

States v. Walker , 652 F.2d 708, 713 (7th Cir. 1981). Neither the

Constitution nor Rule 106, however, requires the admission of the

entire statement once any portion is admitted in a criminal

prosecution. S ee United States v. Mulligan

, 573 F.2d 775, 778 (2d

Cir.) (rejecting all-or-nothing approach), cert. denied , 439 U.S.

827 (1978 ). We do no violence to criminal defendants'

constitutional rights by applying Rule 106 as written and requiring51

that a defendant demonstrate with particularity the unfairness in

the selective admission of his post-arrest statement. See Wright

& Graham, Federal Practice and Procedure: Evidence § 5077 at 370.

This, Castillo failed to do.

V.

Each Davidian contests the sufficiency of the evid ence to

support his conviction on the various counts. We review the

evidence in the record in the light most favorable to the

Government and draw all reason able inferences in favor of the

jury’s verdict. United States v. Ruggiero , 56 F.3d 647, 654 (5th

Cir.), cert. denied

, 116 S.Ct. 397 (1995), and cert. denied

, 116

S.Ct. 486 (1995). Our review is limited to the determination

whether a reasonable trier of fact could find the evidence

established t he defendant's guilt beyond a reasonable doubt.

United States v. Jaramillo , 42 F.3d 920, 922-23 (5th Cir.), cert.

denied

, 115 S.Ct. 2014 (1995). We address the convictions on each

count in turn.

A.

The jury convicted Avraam, Branch, Castillo, and Whitecliff of

aiding and abetting the voluntary manslaughter of federal agents in

violation of 18 U.S.C. §§ 2, 1112. Significantly, the Davidians do

not contest the sufficiency of the evidence establishing that the

four ATF agents were killed by gunfire coming from inside the

compound. Rather, the Davidians challenge the sufficiency of the

evidence that each of them aided and abetted that killing. The

gravamen of the defendants’ argument is that the Government failed52

to prove that they participated in the gunbattle or assisted those

who killed the four ATF agents on February 28. We disagree.

The Gov ernment must prove that each defendant 1) associated

with the criminal venture, 2) participated in the venture, and 3)

sought by action to make the venture succ eed. N ye & Nissen v.

United States

, 336 U.S. 613, 619 (1949); United States v. Menesses

,

962 F.2d 420, 427 (5th Cir. 1992). "To aid and abet simply means

to assist the perpetrator of a crime while sharing the requisite

criminal intent." Jaramillo , 42 F.3d at 923. We have cautioned,

however, that "mere presence and association alone are insufficient

to sustain a conviction for aiding and abetting." U nited States v.

Martiarena , 955 F.2d 363, 366-67 (5th Cir. 1992).

Renos Avraam

Two witnesses testified regarding Avraam's activity on

February 28. Kathryn Schroeder, a Davidian, testified on behalf of

the Government as part of a plea bargain. Several days after the

ATF raid, she spoke with Avraam regarding his actions on February

28. He said that he had fired his weapon that morning. She also

testified that when she distributed amm unition to the Davidians

standing guard after the raid, Avraam told her that he had a .50

caliber rifle with ammunition in the gymnasium near the rear of the

compound. She did not see the rifle, but another Davidian

confirmed that Avraam had the gun.

Bradley Rogans, Avraam's cellmate in the Coryell County jail

after his arrest, testified that he spoke with Avraam regarding the

events at Mount Carmel on February 28. Avraam told Rogans that he53

had hid behin d a safe during the gunbattle. When Rogans asked

whether he had shot at the agents, Avraa m responded that he had

not. Avraam then laughed, however, and added, "Well, I'm not a bad

shot." In addition, Avraam told Rogans that he had a fully

automatic gun while he was at the compound.

Avraam admitted to Schroeder that he had fired his weapon

during the gunbat tle, and Avraam's tongue-and-cheek statement to

Rogans that he was a "good shot" lent credence to this testimony.

Moreover, numerous ATF agents testified that they heard .50 caliber

gunfire during the raid. There were only two .50 caliber rifles

owned by the Davidians. Schroeder's testimony linked one of the

two to Avraam. Based on this evidence, a reasonable jury could

find that Avraam aided and abetted the vo luntary manslaughter of

the federal agents.

Brad Branch

All three Davidians who were present at the compound on

February 28 and who testified at trial witnessed Branch

participating in the gu nbattle that morning. Victorine

Hollingsworth was near her room on the second floor of the compound

when gunfire erupted. Early into the gunbattle, she saw Branch on

the second floor armed with a rifle. According to Hollingsworth,

he ran from room to room, firing in each. At one point, she

o verheard Branch, who was in a room facing the front of the

compound where the ATF agents were, exclaim, "He nearly got me and

I got one."54

Marjorie Thomas confirmed Hollingsworth's account. Thomas saw

Branch with a gun on the second floor moving from room to room.

After t he gunbattle, Thomas guarded the chapel with Branch,

Whitecliff, and another Davidian. At one point, she overheard

Branch tell the others that he had shot s omeone on the outside

during the ATF raid. In addition, Kathryn Schroeder, who remained

in her room on the first floor at the front of the compound during

the gunbattle, testified that she heard Branch "yelli ng, running

around the hallways, very hyper." Based on this evidence, a

reasonable jury could find that Branch actively participated in the

gunbattle on February 28.

Jaime Castillo

The most incriminating evidence aga inst Castillo came from

Castillo hi mself. According to his own post-arrest statement,

Castillo awoke very early in the morning on Febru ary 28. He got

dressed in camouflage clothing and went outside to begin working on

the underground bunker the Davidians were constructing. The cold

morning air prompted him to return to b ed. Sometime later, he

heard someone say something was going to happen that morning. He

got out of bed again but, this time, got dressed in black clothing.

He put on a vest holding eight magazines of ammunition and

retrieved his AR-15 assault rifle. Looking out the window of his

room on the front of the co mpound, he saw two cattle trailers

approaching the compound. He joined Koresh and others at the front

door. After gunfire erupted through the door, he attempted to

chamber a round in his rifle, but it jammed. He returned to his55

room, retrieved a 9mm Beretta pistol he had purchased himself, and

went down the hall to another room on the first floor facing the

front of the compound.

According to his statement, after the cease-fire was declared,

Castillo went to the kitchen area toward the rear of the compound.

He grabbed an AK-47 lying on the kitchen table and proceeded to the

rear door of the compound. He observed two wounded ATF agents, one

on the roof and one on the ground. In addition, he saw four agents

searching for the wounded agents.

Other witnesses corroborated and supplemented Castillo's

account of his actions during the gunbattle. Marjorie Thomas

witnessed Castillo with a gun on the second floor of the compound

during the gunfight. According to Thomas, he looked around and

then left. Kathryn Schroeder testified that, after the gunbattle,

Castillo informed he r that he had been at the front door with

Koresh but had returned to his room.

Special Agent Bernadette Griffin, one of the four agents sent

to rescue ATF agent King at the rear of the compound, confirmed

Castillo's presence at the rear of the compound during the ceasefire. She saw an individual at the rear door of the compound with

a gun, who she later identified as Castillo. According to Griffin,

Castillo watched the agents and briefly aimed his weapon at her

while they were rescuing Agent King.

Finally, during t he subsequent stand-off with the FBI,

Schroeder asked Castillo about his weapon and need for ammunition.

Castillo informed her that he had an AK-47, along with ammunition56

for it. Schroeder offered more ammunition, but Castillo refused,

stating, "Well, I don't want more, I don't want any more than what

I've got."

Based on this evidence, a reasonable jury could find that

Castillo actively partici pated in the gunbattle on February 28.

His actions were not those of a passive witness but rather evince

an active role in the firefight. The jury could reasonably infer

the intent to repel the ATF agents with deadly force from his

dress, his attempt to cha mber a round at the front door, and his

immediate flight to his room to retrieve another weapon. Moreover,

despite the absence of direct evidence that he fired his weapon

that morning, the jury could reasonably find that he did shoot at

the ATF agents. Numerous ATF agents testified regarding the large

volume of gunfire coming from the rooms at th e front of the

compound, and Castillo admitted that he was in a room at the front,

armed with a gun, during the gunbattle.

Kevin Whitecliff

Kathryn Schroeder testified that, after the gunbattle,

Whitecliff told her that he had fired at the helicopters

approaching from the north. In addition, Whitecliff stood guard in

the chapel with Marjorie Thomas after the gunbattle. During that

time, Thomas overheard Whitecliff claim that he had shot someone

outside the compound during the ATF raid. Based on this evidence,

a reasonable jury could co nclude that Whitecliff actively

participated in the gunbattle on February 28. Indeed, on appeal,57

Whitecliff concedes that he was shooting towards the helicopters to

the north.

Finally, in respo nse to this evidence showing their

participation in the gunbattle, the defendants argue that the

Government did not prove who actually killed the agents and that

each one of them assisted those individuals or small group of

individuals. According to the Davidians, mere participation in the

gunbattle itself is insufficient to convict them of aiding and

abetting the voluntary manslaughter of federal agents killed during

the gunbattle. Along this line, Whitecliff emphasizes that he shot

toward the helicopters to the north of the compound, while the four

ATF agents were killed on the other side of the compound. We are

not persuaded.

In a prosecution for aidi ng and abetting a crime, the

Gov ernment need not identify a specific person or group of

individuals as the principal. U nited States v. Campa

, 679 F.2d

1006, 1013 (1st Cir. 1982); Hendrix v. United States

, 327 F.2d 971,

97 5 (5th Cir. 1964). To the contrary, the Government need only

s how that "the substantive offense had been committed by someone

and that the defendant aided and abetted him." C ampa

, 679 F.2d at

1013; see also United States v. Yost

, 24 F.3d 99, 104 (10th Cir.

1994) ("All that is required for a conviction based on 18 U.S.C.

§ 2 is a finding that [the defendant] aided someone in committing

the crime.") (emphasis in original). The Government never claimed

to be able to prove who fired the specific rounds that killed the

four ATF agents. The inability to identify the actual gunmen,58

however, does not negate the evidence proving that someone in the

compound killed the agents.

Moreover, the defendant need not fire a weapon to aid and abet

murder or manslaughter. C f. United States v. Villarreal

, 963 F.2d

725, 730 (5th Cir.) (holding that subduing victim aided and abetted

murder), cert. denied

, 506 U.S. 927 (1992). We find no difficulty

in holding that actively participating in a gunbattle in which a

gunmen kills a federal officer can aid and abet that killing.

We affirm the convictions on Count 2.

B.

The jury convicted Avraam, Branch, Castillo, Craddock, and

Whitecliff of using or carrying a firearm during and in relation to

the co mmission of a crime of violence in violation of 18 U.S.C.

§ 924(c)(1). The jury acquitted Fatta on this count.

To sustain the Davidians' convictions under 18 U.S.C.

§ 924(c)(1), the Government must prove that the defendant "used or

carried a firearm" and that the use or carrying was "during and in

relation to" a "crime of viol ence." S mith v. United States

, 113

S.Ct. 2050, 2053 (1993); United States v. Harris

, 25 F.3d 1275,

1279 (5th Cir.), cert. denied

, 115 S.Ct. 458 (1994). The Davidians

contend that there is insufficient evidence of the three elements.

We address each element in turn, beginning with the last.

1.

The predicate crime of violence charged in the indictment was

conspiracy to murder federal agents in viola tion of 18 U.S.C.

§ 1117 as charged in Count 1. The crime of conspiracy contains59

three elements: 1) two or more people agreed to pursue an unlawful

objective; 2) the individual defendant voluntarily agreed to join

the conspiracy; and 3) one or more of the members of the conspiracy

performed an overt act to further the objectives of the conspiracy.

United States v. Baker

, 61 F.3d 317, 325 (5th Cir. 1995). When the

object of the conspiracy is second-degree mur der, the Government

must additionally prove that the individual defendant conspired to

kill with malice aforethought. United States v. Chagra , 807 F.2d

398, 401, 403 (5th Cir. 1986), cert. denied , 484 U.S. 832 (1987);

United States v. Harrelson , 754 F.2d 1153, 1172-73, reh'g denied

,

766 F.2d 186, 189 (5th Cir.), cer t. denied , 474 U.S. 908 (1985),

and cert. denied , 474 U.S. 1034 (1985).

The Davidians argue that, even if a consp iracy to murder

federal agents existed, there is insufficient evidence showing that

eac h voluntarily joined that conspiracy. According to the

Davidians, they were each excluded from Koresh's inner circle and

knew nothing of his murderous plans. We are not persuaded.

That the jury acquitted the defendants of the predicate crime

o f conspiracy to murder federal agents as charged in Count 1 did

not negate the jury's guilty verdict on Count 3. "[I]t is only the

fact of the offense, an d not a conviction, that is need to

establish the required predicate." M unoz-Fabela

, 896 F.2d at 910-

11; Ruiz

, 986 F.2d at 911 (holding that acquittal on predicate

offense does not bar conviction under 18 U.S.C. § 924(c)).

The record is replete with evidence of a conspiracy to murder

federal agents and each individual defendant's membership in that60

conspiracy. In "Bible studies," Koresh taught that there would be

a battle between the "beast" and the Davidians. There was no doubt

that the "beast" was the ATF and FBI. Indeed, residents watched a

film entitled "Breaking the Law in th e Name of the Law: The ATF

Story," an unfavorable portrayal of the ATF. Koresh also told the

women to become strong so as to prevent the U.S. Army from raping

them.

The evidence in the record also shows how Koresh expected the

residents to respond if the "beast" approached the co mpound.

Koresh instructed the Davidians to kill the "enemy", an instruction

driven home by Koresh's admonition that "if you can't kill for God,

you can't die for God." Indeed, final salvation and deliverance to

Heaven--or "translation" as the Davidians called it--could occur

either through immediate delivery to Heaven or through death in

battle.

Koresh and the Davidians began preparing fo r this final

battle. The Davidians fortified the compound, building an

underground shelter. Koresh, along with Paul Fatta and Mike

Schroeder, purchased large amounts of weapons and ammu n ition.

Koresh incorporated firearms into his apocalyptic message. Weapons

were often passed out at Bible studies, while Koresh instructed the

Davidians in their use and mainte nance. Residents practiced

shooting, at times aiming at a target head. The women sewed vests

and black pants capable of holding multiple ammunitio n magazines

for all of the men. At Passover in the Spring of 1992, Koresh

announced that it would be the la st Passover, that the end was61

coming. In short, there was a climate of both fear and aggression

at Mount Carmel prior to February 28.

At the least, the conspiracy to murder federal agents matured

on February 28. The defendants' conduct on that day more than

suffices to demonstrate both the existence of the conspiracy and

their membership in it.

Shortly before the raid, ATF undercover agent Roberto

Rodriguez visited the compound and spoke with Koresh. During their

conversation, Koresh was informed that he had a phone call and left

the room. When Koresh returned, he was "literally shaking."

Koresh told Rodriguez, "Robert, neither the ATF or National Guard

w ill ever get me. They got me once and they'll never get me

again." Koresh looked out the front windows and repeatedly

exclaimed, "They're coming, Robert. The time has come."

After Rodriguez left, the evidence shows that Koresh and the

other Davidians began preparing for the ATF raid. Sometime during

the morning, both Kathryn Sc hroeder and Victorine Hollingsworth

learned that all the women were to go to the chapel. When they got

t here, they noticed that no men were present. Koresh later came

into the chapel and told the women to get back to their rooms and

"watch". According to Schroeder, Koresh was wearing a black,

magazine vest and carryi ng an AK-47. Other men at the compound

were also dre ssed in black clothing and carried weapons, and

Kathryn Schroeder testified that the Davidians loaded ammunition

prior to the raid.62

Contrary to the defendants' arguments, the evidence supports

the jury's conclusion that each was a member of this conspiracy,

that each was a "Member of the Message." Koresh's "Bible studies"

were an integral part of the conspiracy. As both Kathryn Schroeder

and Victorine Hollingswor th testified, all adult Davidians were

expected to attend these studies and usually did. Hollingsworth

confirmed that Craddock usually attended Koresh's studies.

The actions of each defendant on the morning of the ATF raid

and thereafter signal mem bership in this conspiracy. To repeat:

Each defendant actively participated in the g unbattle. Branch

roamed the second floor, firing in each room. Whitecliff shot at

the helicopters. Castillo attempted to shoot while he was at the

front door with Koresh; he later kept armed watch over the four ATF

agents rescuing Agent King. Although no one saw Avraam fire during

the gunbattle, Avraam told Schroeder afterwards t hat he had done

so.

The evidence also shows that Craddock, who was acq uitted of

aiding and abetting the voluntary manslaughter of federal agents,

was a member of the conspiracy to murder the agents. On April 19,

after fleeing the blazing compound, Craddock gave a post-arrest

statement and, the next day, testified before a grand jury.

Craddock's post-arrest statement and grand jury testimony belie his

claim of innocence.

Craddock arrived at Mount Carmel almost a full year before the

ATF raid. He received firearms training, and, two weeks before the

ATF raid, he was issued a pistol and an AR-15, which he kept in his63

room. On February 28, Craddock learned of the impending ATF raid.

He saw Rodriguez meeting with Koresh and overheard Koresh say,

"They're comin g. Whether the BATF or FBI or whatever, they are

coming." Peter Hipsman confirmed the likelihood of an ATF raid

later that morning, telling Craddock that David Jones had been

outside the compound and had heard that approximately 75 ATF agents

had arrived at the Waco airport. Tellingly, after learning of the

impending ATF raid, Craddock returned to his room and retrieved his

AR-15. He got dressed in black clothing and donned his ammunition

vest. Later, he went to the kitchen to get ammunition for his 9mm

handgun, which he loa ded. When asked why he did these things,

Craddock responded, "I did what I think was expected of me." Even

in spite of Craddock's self-serving claim that he did not shoot at

the ATF agents that morning, a reasonable jury could find that he

was a member of the conspiracy to murder federal agents.

A reasonable jury could also have found that this conspiracy

continued long after the February 28 raid. After the cease-fire,

the Davidians developed a pla n to exit the compound, fire at the

agents, and die in the ensuing battle. Although the Davidians did

not execute that plan, the remaining residents engaged in a standoff with the FBI for over fifty days. Whitecliff and Branch stood

guard i n the chapel with an FN-FAL and M-1A, respectively.

Castillo stood guard with an AK-47 in his room on the first floor.

Craddock, who had an AR-15, kept his armed vigil in Kathryn

Schroeder's bedroom on the first floor. Avraam stood guard above

the gym or chapel with a .50 caliber rifle. As Kathryn Schroeder64

and Marjorie Thomas, both of whom also stood guard, testified, the

Davidians were instructed to open fire if the FBI attempted to

e nter the compound. Craddock maintained an electrical generator

and kept the telephone line in working order.

The compound residents were free to leave Mount Carmel at any

time. The Davidians chose to remain, to stand guard against the

FBI, and, if necessary, to use deadly force to repel the FBI.

The defendants argue that this evidence only shows that they

were present at Mount Carmel and associated with some of the

r esidents there. S ee United States v. Espinoza-Seanez

, 862 F .2d

526, 538-39 (5th Cir. 1988) (reversing conspiracy conviction based

on mere association with conspirators and presence in foul

climate). But a reasonable juror could see an entirely different

picture, not innocent individuals caught "in the wrong place, at

the wrong time," but active participants in an armed camp, willing

to defend that camp with deadly force and to die with the firm

belief that eternal salvation was their divine reward.

Craddock separately argues that there was insufficient

evidence that he conspired to murder fe deral agents with malice

aforethought. In particular, Craddock emphasizes that he did not

fire a shot the day of the ATF raid and, therefore, cannot have had

the requisite mental state. Even accepting this self-serving

factual assertion, we disagree with the legal conclusion Craddock

draws from it.

Malice aforethought means "an intent, at the time of a

killing, wilfully to take the life of a human being, or an intent65

wilfully to act in callous and wanton disregard of the consequences

to human life; but 'malice aforethought' does not necessarily imply

any ill will, spite or hatred towards th e individual killed."

Harrelson

, 766 F.2d at 189 n.5 (quoting 2 E. Devitt & C. Blackmar,

Federal Jury Practice and Instructions 215 (1977)). The evidence

shows that C raddock attended Bible studies, at which Koresh

preached of the need to kill the enemy; that Craddock received

several firearms and participated in firearms training; that, upon

learning of the impending ATF raid on February 28, he changed

clothing and retrieved his weapons; and that, after the raid, he

chose to remain in the compound during the stand-off, despite the

possibility of further bloodshed. C f. Chagra

, 807 F.2d at 404

(rejecting non-gunman's insufficiency of evidence challenge to

conviction for conspiracy to murder).

Based on this evidence, a reasonable jury could find that a

conspiracy to murder federal agents existed and that each of the

five defendants voluntarily joined that conspiracy with the

requisite mental state.

2.

We are also persuaded that sufficient evidence supports the

conviction for using or carrying a firearm during the conspiracy.

In Bailey v. United States

, 116 S.Ct. 501, 509 (1995), the Supreme

Court reversed the § 924(c)(1) gun convictions of two defendants,

one of whom had kept an undisclosed firearm in a foot locker in a

bedroom closet and the other of whom had concealed an undisclosed

firearm in the trunk of his car. The Court explained that "use"66

required more than "mere possession" of a firearm by the defendant.

Id. at 506. Rather, the Government must show "active employment"

of the firearm. Id.

The "active employment" requirement is not an ov erly taxing

one. The Court gave several examples of conduct constituting

"active employment," among them, "brandishing, displaying,

bartering, striking with, and most obviously, firing or attempting

to fire, a fi rearm." I d. at 508. While the Court held that

storing a concealed weapon nearby for potential use did not

constitute "active employment," i t noted that "an offender's

reference to a firearm in his possession could satisfy

§ 924(c)(1)." I d. Finally, the Court held out the possibility

that the "carry" prong of § 924(c)(1) reached conduct that the

"use" prong did not. Id. at 509.

Like the Supreme Court in Bailey

, we need not address whether

the evidence suffices to establish that the defendants "carried" a

firearm during the conspiracy. The evidence is overwhelming that

each of the five defendants "used" a firearm as the Supreme Court

has defined the term. The evidence demonstrates that Branch and

Whitecliff fired their weapons on the 28th. By his own admission,

Castillo attempted to chamber a round at the front door and, after

the cease-fire, brandished a weapon while the ATF rescued one of

its injured agent s. Similarly, according to his own statements,

Craddock retrieved his AR-15 assault rifle, loaded ammunition into

his handgun, and awaited instructions. Finally, Avraam admitted to

Schroeder that he had fired a weapon on February 28.67

There was also evidence that after the ATF raid, all of the

defendants stood watch in the compound with loaded firearms. In

particular, FBI Special Age nt Toulouse witnessed a .50 caliber

rifle protruding from a hole in wall of the compound near the rear.

Avraam reportedly stood guard in that area with one of the

Davidians' two .50 caliber rifles. Based on this evidence, a

reasonable ju ry could find that the defendants used a firearm

during the conspiracy.

3.

Lastly, the defendants claim that the evidence is insufficient

to show that each used a firearm"during and in relation" to the

conspiracy to murder federal agents. In particular, Branch argues

that the evidence only indicates that he used his firearm in selfdefense. We disagree.

There is no question that each defendant used his firearm

"during" the conspiracy. S ee Smith

, 113 S.Ct. at 2058. Nor is

there any question that each used his firearm "in relation" to the

conspiracy. In S mith

, the Supreme Court explained that

§ 924(c)(1)'s requirement that the firearm be used "in relation to"

the predicate offense ensures that the firearm must have "some

purpose or effect with respect to" the predicate offense, that it

"facilitate or have the potential of facilitating" that crime. I d.

at 2059 (alterati ons omitted). Stated negatively, the firearm's

presence or involvement "cannot be the result of acci dent or

coincidence." Id.68

The use of the firearms during and after February 28 was not

accidental; it was part and parcel of the conspiracy to murder

federal agents. We have affirmed § 924(c)(1) convictions where the

relationship between the firearm and the predicate offense has been

far more attenuated than here. S ee United States v. Wilson

, 884

F.2d 174, 177 (5th Cir. 1989).

Finally, Whitecliff's argument that the evidence does not show

that he used his firearm during and in relation to the conspiracy

to murder the federal agents "at the front door" misapprehends the

scope of the conspiracy. The conspiracy to murder federal agents

did not end with the death of the four agents on February 28.

Rather, there was evidence that beginning prior to February 28 and

continuing for almost two months after the ATF raid, the defendants

conspired to kill any federal agent who attempted to approach the

compound. Firing at the National Guard helicopters approaching the

compound and standing guard durin g the ensuing stand-off was

Whitecliff's contribution to that conspiracy.

In sum, we are persuade d that the evidence supports the

D avidians' convictions for violating § 924(c)(1). We affirm the

convictions on Count 3.

C.

The jury convicted Fatta of c onspiring to unlawfully

manufacture and possess machineguns and of aiding and abetting the

unlawful possession of machineguns, both in violation of 18 U.S.C.

§ 922(o). We address both counts jointly.69

Whether the object of the conspiracy is murder or the unlawful

manufacture and possession of machineguns, the Gove rnment must

p rove the same, three elements: 1) two or more people agreed to

pursue the unlawful objective; 2) the individual defendant

voluntari ly agreed to join the conspiracy; and 3) one or more of

the members of the conspiracy performed an overt act to further the

objectives of the conspiracy. Baker , 61 F.3d at 325. Similarly,

whether the c rime is voluntary manslaughter or possession of

machineguns, the Government must prove that each defendant 1)

associated with the criminal vent ure, 2) participated in the

venture, and 3) sought by action to make the venture succeed. N ye

& Nissen , 336 U.S. at 619; Menesses , 962 F.2d at 427.

Fatta argues that there is no evidence showing that he knew of

or voluntarily agreed to join the conspirac y to manufacture and

possess machineguns. According to Fatta, the evidence shows only

that he lawfully purchased firearms, ammunition, and accessories.

He emphasizes that other Davidians, not he, purchased the parts and

tools for converting semiautomatic weapons to fully automatic ones.

Finally, Fatta argues that there is no evidence that he assisted

Koresh in possessing machineguns.

The evidence at trial supports the jury's verdict on both

counts. After Koresh began preaching about the upcoming

confrontation with the "beast", Paul Fatta began traveling to gun

shows and purchasing weapons. Firearm records indicated that Fatta

purchased a large number of firearms and related accessories in the

two years prior to the ATF raid. Included among Fatta's purchases70

were semiautomatic AK-47 and .308 caliber FN-FAL assault rifles,

magazines, an d cases of ammunition. In December 1991, Fatta

t raveled with Koresh to Indiana to purchase guns. On that trip,

Koresh and Fatta together bought approximately $25, 000 worth of

firearms.

The evidence also demonstrates that the Davidians were engaged

in the conversion of semiautomatic firearms to fully au tomatic

firearms. Kathryn Schroeder testified that fully automatic guns

were made at the compound and that the resident s knew about it.

According to Schroeder, Koresh announced at a Bible study that

"we're going to take a gun that goes rat-tat-tat and make it into

a gun that goes rata-tat-tat." Indeed, numerous fully-automatic

weapons were recovered from the ruins of Mount Carmel after April

19.

Invoices from firearm suppliers confirmed Schroeder's

testimony. The Davidians had ordered parts and tools used in

manufacturing fully automatic weapons. These items were shipped to

the Mag Bag, a garage located a short distance from the compound

used by the Davidians for the buying and selling of firearms. In

particular, conversion kits, along with books and videotapes on how

to convert semiautomatic weapons into fully automatic machineguns,

were shipped to the Mag Bag.

The evidence left no doubt as to Fatta's involvement in the

Davidians' automatic weapons oper ations. Two of the fully

automatic weapons recovered from the ruins of Mount Carmel had been

purchased by Fatta as semiautomatic weapons and later converted.71

Fatta's personal checks were discovered in the machine room where

the Davidians manufactured machineguns and silencers.

Moreover, the evidence demonstrated Fatta's involvement with

the Mag Bag. Fatta procured a Texas Sales/Use Tax Permit in

February 1992 for the Mag Bag. The application for the permit

listed Fatta as the owner of the Mag Bag, and, contrary to Fatta's

suggestion that the Mag Bag was simply an automotive repair shop,

it indicated that "gun and firearm accessories" were the "primary

product" sold by the Mag Bag. Numerous firearm purchase invoices

and related documentation also confirmed Fatta's association with

the Mag Bag. In fact, among the items found in a search of the Mag

Bag was a phone bill addressed to the Mag Bag listing Fatta as the

account name. Based on this evidence, a reasonable jury could find

that Fatta voluntarily joined the conspirac y to manufacture and

possess machineguns.

In response, Fatta argues that, even so, there is no direct

evidence of his knowledge that the weapons were machineguns. Even

more brazenly, Fatta claims that the Government must prove that he

knew his conduct was illegal, relying on Ratzlaf v. United States

,

114 S.Ct. 655 (1994). We disagree with both arguments.

The Governm ent may prove Fatta's knowledge through either

direct or circumstantial evidence. Staples v. United States , 114

S.Ct. 1793, 1802 n.11 (1994) (noting that knowledge of machinegun's

status as such "can be inferred fro m circumstantial evidence").

There was abundant circumstantial evidence of Fatta's knowledge

that machineguns were being manufactured and possessed by Koresh72

and the other Davidians. S ee United States v. Tylkowski

, 9 F.3d

1255, 1260 (7th Cir. 1993).

Nor must the Government prove Fatta knew his conduct to be

illegal. C heek v. United States

, 111 S.Ct. 604, 609 (1991);

Staples

, 114 S.Ct. at 1805 n.3 (Ginsburg, J., concurring in the

judgment). Fatta's reliance on R atzlaf is misplaced. R atzlaf was

a prosecution under 31 U.S.C. § 5322(a) for structuring a financial

transaction for the pu rpose of evading currency reporting

requirements. There, the Supreme Court found that Congress in that

particular statute had chosen to depart from the general rule that

ignorance of the law is no defens e to a criminal charge. I d. at

663. Fatta offers no argument based on statutory text, legislative

history, or case law suggesting that Congress has acted in a

similar fashion with regard to § 922(o). Nor could he. S ee United

States v. Farrell , 69 F.3d 891, 893 (8th Cir. 1995) (holding that

§ 922(o) does not require knowledge of law or intent t o violate

it), cert. denied , 116 S.Ct. 1283 (1996).

In sum, a reasonable jury could find that Fatta willingly

joined a conspiracy to manufacture and possess machineguns. In

addition, the jury could find that he aided and abetted Koresh in

possessing machineguns.

VI.

The district court sentenced Avraam, Branch, Cast illo, and

Whitecliff to the statutory maximum of 10-years imprisonment on

Count 2 and to 30-years imprisonment on Count 3, such terms to be

served consecutively; Craddock to 10-years imprisonment on Count 373

and to 10-years imprisonment on Count 7, such terms to be served

consecutively; and Fatta to consecutive prison sentences of 5 years

for Count 9 and 10 years for Count 10. In addition, the district

court ordered all of the Davidians to pay restitution of over $1.1

million.

We first address the defendants' challenge to their sentences

on Count 3 for using or carrying a firearm during and in relation

to a crime of violence. We then turn to the defendants' individual

sentencing claims. We conclude our review with the restitution

order.

A.

18 U.S.C. § 924(c )(1) defines both the crime and the

applicable sentence. It provides:

Whoever, during and in relation to any crime of violence

or drug trafficking crime . . . , uses or carries a

firearm, shall, in addi tion to the punishment provided

for such crime of violence or drug trafficking crime, be

sentenced to imprisonment for five years, and i f the

firearm is a short-barreled rifle, short-barreled

shotgun, or semiautomatic assault weapon, to imprisonment

for ten years, and if the firearm is a machinegun, or a

destructive device, or is equippe d with a firearm

silencer or firearm muffler, to imprisonment for thirty

years.

Finding that each of the five defendants had used or were

criminally responsible for someone who had used a machinegun during

the conspiracy, the district cour t sentenced Avraam, Branch,

Castillo, and Whi tecliff to 30-years imprisonment. Although the

district court found that Craddock was also subject to the 30-year

sentence, it departed dow nward from the mandatory statutory term

a nd sentenced Craddock to only 10-years imprisonment on Count 3.74

The United States has not cross-appealed Craddock's sentence on

this count.

The Davidians claim tha t the district court improperly

enhanced their sentences for using a machinegun. The Davidians

point out that the indictment did not allege nor did the jury find

that each had used a machinegun. Rather, the indictment alleged

and the jury found only that each had used a "firearm". According

to the Davidians, the determination whether the defendant used one

of the aggravating firearms enumerated in § 924(c)(1) lies with the

jury, not the court at sentencing. Consequently, the Davidians ask

us to vacate their sentence on that count and remand with

instructions to impose only a 5-year prison sentence on Count 3.

The validity of the district court's action turns upon whether

§ 924(c)(1)'s machinegun provision creates a separate, independent

offense or is a sentence-enhancement provision. This question is

one of first impression. The United States and the Davidians rely

on the case l aw, waging a war of dicta. We begin with first

principles.

Whether § 924(c)(1)'s machinegun provision "creates an

independent f ederal offense or is merely a sentence-enhancement

provision is a matter of legislative intent." U nited States v.

Jackson

, 891 F.2d 1151, 1152 (5th Cir. 1989) (per curiam), cert.

denied , 496 U.S. 939 (1990). In prior cases, we have suggested

that four factors are illuminating: 1) whether the statute

predicate s punishment upon conviction under another section; 2)

whether the statute multiplies the penalty received under another75

section; 3) whether the statute provides gu idelines for the

sentencing hearing; and 4) whether the statute is titled as a

sentencing provision. I d. These factors, however, complement and

do not substitute for our traditional tools of statutory

interpretation, namely, the statute's text and legislative history.

See United States v. Davis

, 801 F.2 d 754, 755 (5th Cir. 1986)

(enumerating four factors but explai ning that statute's text is

"primary guide to congressional intent").

Section 924(c)(1) defines a crime whose existence turns upon

the commission of another crime. The statute requires another

offense--either a "crime of violence or drug trafficking crime"--

though, as we have made clear, the defendant need not be charged or

convicted of that predicate offense . The relationship between

§ 924(c)(1) and the predicate crime of violence or drug trafficking

crime is not at issue here. Decisions discussing that relationship

are, therefore, not helpful. S ee Munoz-Fabela

, 896 F.2d at 910

(holding that § 924© provides independent basis for criminal

li ability from p redicate offense ). The key is the relationship

between prohibiting the use or carrying of a firearm during such

predicate offense (the firearm clause) and mandating a 30-year

sentence when the firearm is a machinegun (the machinegun clause).

The text of § 924(c)(1) forecloses nei ther of these two

competing readings of the statute. The legislative history and

statu t ory structure, however, persuade us that the machinegun

clause of § 924(c)(1) is a sentence-enhancement provision.76

The Gun Control Act of 1968, Pub. L. No. 618, § 102, 82 Stat.

1213 (1968), created § 924(c), which provided in relevant part:

Whoever--

( 1) uses a firearm to commit any felony which may

be prosecuted in a court of the United States, or

(2) carries a firearm unlawfully during the

commission of any felony which may be prosecuted in

a court of the United States,

shall be sentenced to a term of imprisonment for not less

than one year nor more than 10 years.

Congress later merged the two clauses into the text we know today

but did not distinguish among types of firearms. The Comprehensive

Crime Control Act of 1984, Pub. L. No. 473, § 1005, 98 Stat. 1837,

2138 (1984).

In 1986, Congress enacted the Firearms Owners' Protection Act,

Pub. L. No. 99-308, § 104, 100 Stat. 449, 456 (1986), a dding the

machinegun clause to the statute. Congress appended the machinegun

clause to the firearm clause, rather than create a new section.

The House Report accompanying the 1986 Act explained that the

provision "add[ed] a new mandatory prison term . . . for using or

carrying a machinegun during and in relation to a crime of

violence" and referred to the provision as the "[e]nhanced penalty

for machine gun use in crime." S ee H. Rep. No. 495, 99th Cong., 2d

Sess. 28 (1986), reprinted in 1986 U.S.C.C.A.N. 1327, 1354. Floor

debates also referred to the provision as requiring a "mand atory

prison term", providing "mandatory penalties", or requiring "stiff

mandatory sentences" for use of a machinegun. S ee 132 Cong.Rec.

9603 (statement of Sen. McClure); 132 Cong.Rec. 3809 (statement of

Rep. Hughes), 4512 (statement of Rep. Hughes), 6837 (statement of

Rep. Hughes), 6843 (statement of Rep. Volkmer), 6850 (statement of77

Rep . Moore), 6856 (statement of Rep. Wirth), 6857 (statement of

Rep. Gallo), 7081 (statement of Rep. Gallo). Representative Hughes

described the provision as "creating a new extra mandatory prison

term for carrying a machinegun." 132 Cong.Rec. H1646. Noticeably

absent from both the Hous e Report and the floor debates was any

discussion suggesting the creation of a new offense.

Subsequent acts increased the mandatory prison term for using

or carrying a machinegun and subjected criminals who use or carry

destructive devices or other types of firearms to the enhanced

penaltie s. See Anti-Drug Abuse Act of 1988, Pub. L. No. 690,

§ 6460, 102 Stat. 4181, 4373 (1988); Crime Control Act of 1990,

Pub. L. No. 647, § 1101, 104 Stat. 4789, 4829 (1990). At no point

did Congress indicate that it intended to create a new, separate

offense for t hose weapons. S ee H. Rep. No. 681, 101st Cong., 2d

Cong. 107 (1990), reprinted in 1990 U.S.C.C.A.N. 6472, 6511

(describing amendment to section as intending "to increase the

mandatory add itional penalties for using or carrying certain

weapons during a crime of violence or a drug felony"); 134

Cong.Rec. S17360 (Judiciary Committee section analysis) (describing

amendment to section as increasing the "mandatory pen alty" for

using a machine gun).

The defendants rely on our suggestion in United States v.

Correa-Ventur a , 6 F.3d 1070, 1087 n.35 (5th Cir. 1993), that

§ 924(c) may require the jury to agree on which type of weapon was

used "in order for the court to assess the appropriate penalty."

Correa-Venture held, however, that the jury need not agree on which78

firearm was actually used by the defendant where all of the

firearms were from the same class of weapons. The suggestion was

dicta.

In addition, for support for the suggestion, we cited the

Sixth Circuit's opinion in United States v. Sims

, 975 F.2d 1225,

1235-36 (6th Cir. 1992), cert. denied

, 507 U.S. 932 (1993), and

cert. denied , 507 U.S. 998 (1993), and cert. denied , 507 U.S. 999

(1993). S ims

, upon which the Davidians also rely, did not address

the issue here. Rather, S ims held that, where the Government

charges two separate § 924(c) counts, one for a "firearm" and one

for an enhancing weapon, such as a machinegun, the district court

"must consolidate those section 924(c) counts so that no defendant

will be convicted on more than one gun co unt relative to the one

drug traffick ing offense." I d. at 1235. S ims did not hold that

the Government mu st charge the defendant with using an enhanced

firearm. S ee also United States v. Martinez

, 7 F.3d 146 (9th Cir.

1993). That the Government can include separate counts in the

indictment for each type of firearm does not answer our statute.

Nor is the Davidians' reliance on United States v. Melvin

, 27

F.3d 710 (1st Cir. 1994), well-placed. The jury convicted Melvin

of using a "firearm", and he was sentenced to a five-year term as

specified in § 924(c). The Government appealed, arguing that given

the prevalence of machineguns among the other firearms, a finding

that defendants used machineguns wa s "implicit and inescapable"

from the jury's verdict. I d. at 714. The First Circuit disagreed,

holding that "[o]ur task in these circumstances, however, is not to6 Although the Government had conceded the point, the First

Circuit cited Martinez and Sims for support for this proposition.

As noted above, those decisions did not address that specific

issue.

79 determine whether the evidence and argument could support the

government's interpretation of the jury's verdict, but whether it

i nevitably must lead to such a construction." I d. On the facts

before it, the First Circuit concluded that it could not exclude

the possibility that the jury had convicted the defendants based on

a finding that they possessed only a firearm and not the

machineguns. Id. at 715.

In Melvin

, the Government conceded that the 30-year term is

available "only if the jury specifically identifies a machine gun

or silencer as the firearm supporting the conviction." I d. at

714. 6 The court expressly refused to consider the validity of that

reading of § 924(c). S ee id. at 715 n.9 (refusing to consi der

whether it is jury's or court's role to find nature of weapon used

by defendant) . Unlike M elvin

, the Government here has contested

that interpretation of § 924(c).

The statute's structure and its legislative history persuade

us that Congress did not intend to create a new, separate offense

by adding the machinegun clause to § 924(c). The Government need

not charge in the indictment nor must the jury find as part of its

verdict the particular type of firearm used or carried by the

defendant.

The Davidians next argue that, even so, there is insufficient

evidence for the district court to find by a preponderance of the80

evidence that each one of them used or carried a machinegun during

and in relation to the conspi racy to murder federal agents. The

district court found that "[e]ach either had actual or constructive

possession of the numerous fully automatic weapo ns and hand

grenades present in the Compound before February 28, 1993 and

through the 51 day siege."

§ 924(c) requires more than "mere possession" of a firearm by

the defendant. B ailey v. United States

, 116 S.Ct. 50 1, 506, 509

(1995). The Government must show "active employment" of the

firearm. I d. The district court did not have the benefit of

Bailey and found only that each defend ant had actual or

constructive possession of an enhanced weapon. This finding does

not meet the statutory requirement as read by Bailey

.

As we have explained, there is evidence from which it could be

found that machineguns and other enhancing weapons were used by one

or more members of the conspiracy in the firefight of February 28.

The jury was not required to do so and the district court entered

only those findings then required. With B ailey the district court

must take another look and enter its fi ndings regarding “active

employment.” Should the district court find on remand that members

of the conspiracy actively employed machineguns, it is free to

reimpose the 30-year sentence. We vacate the defendants' sentences

on Count 3 and remand for resentencing on that count.

We note that, on remand, the district cour t should consider

whether t he defendants actively employed a weapon during and in

relation to the conspiracy to murder federal agents.81 B.

Branch, Castillo, Craddock, and Fatta raise numerous

o bjections to the district court's application of the Sentencing

Guidelines. We review the application of the sentencing guidelines

de novo and its findings of fact for clear error. U nited States v.

Palmer

, 31 F.3d 259, 261 (5th Cir. 1994). We address the sentence

on each count in turn.

1.

The district court sentenced Avraam, Bran ch, Castillo, and

Whitecliff to the statutory maximum 10-years imprisonment on Count

2 for aiding and abetting the voluntary manslaughter of federal

agents. Branch and Castillo contest the application of the

Sentencing Guidelines on Count 2.

The district court began with the base offense level of 25

from U.S.S.G. § 2A1.3 and added the 3-level enhancement for

official victim pursuant to § 3A1.2(b) and the 2-level enhancement

for obstruction of justice pursuant to § 3C1.1. Given their

criminal history categories, the total offense level yielded

guideline ranges of 108-135 months and 97-121 months, respectively.

However, the statutory maximum senten ce of 10-years imprisonment

reduced the guideline ranges to 108-120 months and 97-120 months,

respectively.

Branch and Castillo both contest the 3-level enhancement for

an official victim. Section 3A1.2(b) of the Sentencing Guidelines

provides for a 3-level enhancement if "during the course of the

offense or immediate flight therefrom, the defendant

. . . knowing82

or having reasonable ca use to believe that a person was a law

enforcement or corrections officer, assa ulted such officer in a

manner creating a substantial risk of serious bodily injury."

Branch argues that there is insufficient evidence that he knew the

agents' official identity. Castillo claims that the jury's

acquittal of the Davidians on Count 1 (conspiracy to murder federal

agents) precl udes enhancing his sentence for assault on a law

enforcement officer.

We think it beyond cavil that the Davidians knew the agents'

identity on February 28, 1993. We do not address Castillo's

argument since he did not object to the official victim enhancement

either at the sentencing hearing or in his written objections to

the Pre-Sentence Report. S ee United States v. Chapman

, 7 F.3d 66,

69 (5th Cir. 1993) (holding defendant "waived any error based on

this issue as he failed to raise it ei ther in his written

objections to the pre-sentence report or orally at the sentencing

hearing"), cert. denied , 114 S.Ct. 2713 (1994).

Castillo contests the 2-level enhancement for obstruction of

justice. Section 3C1.1 provides for a 2-level enhancement "if the

defendant willfully obstructed or impeded, or attempted to obstruct

or impede, the administration of justice during the investigation,

prosecution, or sentencing of the instant offense." Castillo

claims that the district court's finding that he obstructed the

execution of the search warrant for 51 days is not supported by

sufficient evidence.83

In his own post-arrest statement, Casti llo admitted to

participating in the initial gunbattle and the ensuing armed standoff. In addition, Kathryn Schroeder, Marjorie Thomas, and

Victorine Hollingsworth all confirmed Castillo stood guard with a

firearm during the stand-off. The district court's finding is not

clearly erroneous.

C a stillo next challenges the district court's refusal to

reduce his offense for acceptance of responsibility. Section 3E1.1

provides a 2-level reduction "[i] f the defendant clearly

d emonstrates acceptance of responsibility for his offense." An

additional 1- level reduction is available where, among other

thing s

, the defendant "has assisted authorities in the

investigation or prosecution of his own misconduct by

. . . timely

providing complete information to the government concerning his own

involvement in the offense." Castillo claims that he is entitled

to the full, 3-level reduction, pointing out that he provided a

statement to Texas Rangers immediately after his arrest.

The district court found this claim to be "ludicrous". We

agree. Castillo pled not guilty to all charges against him. While

conviction by trial does not "automatically preclude" the

availability of this section, the Guidelines contemplate that those

cases in which the defendant both accepts responsibility within the

meaning of this section and goes to trial will be "rare". U.S.S.G.

§ 3E1.1, comment (n.2); United States v. Broussard , 987 F.2d 215,

224 (5th Cir. 1993). Castillo contested his factual guilt,

claimi ng that he acted in self-defense. Moreover, Castillo84

addressed the district court at sentencing and proclaimed that "we

still stand on our innocence." He expressed no remorse or regret

for his personal involvement in the deaths of the ATF agents. We

agree with the district court that this is not one of those "rare"

instances warranting the reduction. See United States v. Waloke

,

962 F.2d 824, 832 (8th Cir. 1992) (rejecting § 3E1.1 reduction

where defendant c laimed self-defense); U nited States v. Sanchez

,

893 F.2d 679, 681 (5th Cir. 1990) (rejecting reduction due to

defendant's lack of remorse).

Finally, Branch argues that the district court d eparted

upwards from the guideline sentence and that insufficient evidence

exists to justify the departure. The district court did not depart

upwards from the sentencing guidelines but rather sentenced Branch

to the statut ory maximum 10-years imprisonment, which was within

the guideline range.

We affirm the sentences on Count 2 for aiding and abetting the

voluntary manslaughter of federal agents.

2.

The district court sentenced Craddock to the statutory maximum

10-years imprisonment on Count 7 for possession of an unregistered

destructi ve device, such term to be served consecutively to that

imposed on Count 3.

The district court began with Craddock’s base offense level of

18. U.S.S.G. § 2K2.1. It added 6 levels for the involvement of 50

or more firearms pursuant to § 2K2.1(b)(1)(F), 2 levels for the

involvement of a destructive device pursuant to § 2K2.1(b)(3), and85

4 levels for possession of a firearm in connection with another

felony pursuant to § 2K2.1(b)(5). The court then applied the

§ 2K2.1(c)(1)( A) cross-reference for possession of a firearm in

connection with another offense, here, conspiracy to murder federal

agents. Application of the cross-reference yielded an adjusted

base offense leve l of 43. To that, the district court added 3

levels for an official victim pursuant to § 3A1.2(b) and 2 levels

for obstru ction of justice pursuant to § 3C1.1. This yielded a

total offense level of 48 and a guideline sentence of life

imprisonment. See U.S.S.G. § 5A.

Craddock first contests the 2K2.1(c)(1)(A) cross-reference to

§ 2X1 .1. Section 2K2.1(c)(1)(A) directs the sentencing court to

apply § 2X1.1 if the defendant "used or p ossessed any firearm or

ammunition in connection with the commission or atte mpted

commission of another offense, or possessed or transf erred a

firearm or ammunition with knowledge or intent that it would be

used or possessed in connection with another offense." Here, the

district court adopted the Pre-Sentence Report's finding that

Craddock "was involved in a conspiracy that resulted in the murder

of four federal agents."

Section 2X1.1, in turn, directs the sentencing court to apply

the guideline for the "substantive offense," in other words, the

object of the conspiracy. Craddock points to application note 2,

which provides that "'[s]ubstantive offense,' as used in this

guideline, means the offe nse that the defendant w as convicted of

solici ting, attempting, or conspiring to commit." U.S.S.G.86

§ 2X1.1, comment (n.2) (emphasis added). Craddock argues that his

acquittal of Count 1 for conspiring to murder federal agents

therefore bars application of the cross-reference.

As a general matter, that the jury ac quitted Craddock of

conspiring to murder federal agents does not preclude the district

court from finding in a sentencing hearing that Craddock did commit

that offense. The sentencing court "may rely on facts underlying

an acquitt ed count if the preponderance standard is satisfied."

See United States v. Allibhai , 939 F.2d 244, 254 (5th Cir. 1991),

cert. denied

, 502 U.S. 1072 (1992). As we explained elsewhere,

"[a]lthough the jury may have det ermined that the government had

not proved all of the elements of the [other] offense beyon d a

reas onable doubt, such a determination does not necessarily

preclude cons ideration of underlying facts of the offense at

sentencing so long as those facts meet the reliability standard."

United States v. Juarez-Ortega

, 866 F.2d 747, 749 (5th Cir. 1989).

Nor are we persuaded that the § 2X1.1 cross-reference itself

restricts the district court's ability to use the facts underlying

t he acquitted count in calculating the sentence on the convicted

count. In U nited States v. Smith

, 997 F.2d 396, 397 (8th Cir.

1993), the Eighth Circuit rejected the identical argument Craddock

advances before us. In Smith , the court wrote:

We reject Smi th's argument that, under the 1991

amendment, a prerequisite for applying section 2X1.1 to

him i s a conviction for [the underlying offense]. The

commentary to the 1991 version of section 2X1.1 requires

the use of the Guideline applicable to the substantive

offense that the defendant was "convicted" of attempting,

soliciting or consp i ring to commit. Section 2X1.1,

comment (n.2) (1991). We conclude, however, that, when87

read in context, this commentary applies only if section

2X1.1 is applied directly, rather than as a crossreference from section 2K2.1. The cross-reference

provision contains no language requiring that the

defendant be convicted of the other offense.

See a lso United States v. Fleming

, 8 F.3d 1264, 1266 (8th Cir.

1993). That Smith was not charged with the underlying offense

while Craddock was acquitted of it makes no difference. S ee United

States v. Concepcion

, 983 F.2d 369, 387-88 (2d Cir. 1992), cert.

denied

, 114 S.Ct. 163 (1993). In short, the district court did not

err in applying the § 2K2.1(c) cross-reference for criminal conduct

of which Craddock was acquitted.

Craddock next contests the 6-level enhancement for possession

of more than 50 enhanced weapons and the 4-level enhancement for

possessing a destructive device in connection with another felony

offense. § 2K2.1(b)(1), (5). We do not address these contentions.

Even assuming without deciding that these enhance ments are not

supported by the record, the application of the cross- reference

obviated any impact these enhancements had on Craddock's sentence.

Nor do we address Craddock's last contention challenging the

3-point enhancement for an official vic tim pursuant to § 3A1.1.

Even without that particular enhancement, Craddock's guideline

sentence is life imprisonment. Stated another way, the official

victimenhancement had no effect on the calculation of his

guideline sentence.

We affirm Craddock's sentence on Count 7 for possession of an

unregistered destructive device.

3.88

The district court sentenced Fatta to the statutory maximum 5-

years imprisonment on Count 9 for conspi ring to manufacture and

possess machineguns. In addition, the court sentenced Fatta to the

statutory maximum 10-years imprisonment for aiding and abetting the

possession of machineguns, such terms to be served consecutively.

To calculate Fatta's sentence, the district court grouped the

two counts, yielding a base offense level of 18. It added 6 levels

for the involvement of 50 or more fir earms pursuant to

§ 2K2.1(b)(1)(F), 2 levels for the involvement of a destructive

device pursuant to § 2K2.1(b)(3), and 4 levels for possession or

transfer of firearms with knowledge, intent or reason to believe it

would be used in connection with another felony pursuant to

§ 2K2.1(b)(5). The district court then applied the

§ 2K2.1(c)(1)(A) cross-reference for posses sion of a firearm in

connection with a nother offense, here, the conspiracy to murder

federal agents. Application of the cross-reference yielded an

adjusted base offense level of 43 and a guideline sentence of life

imprisonment. See U.S.S.G. § 5A.

Fatta first contests the § 2K2.1(c) cross-reference on two

grounds. First, he contends that his acquittal on Count 1 of the

conspirac y to murder federal agents precludes application of the

cross -reference. Second, he argues that there is insufficient

evidence that he was a member of the conspiracy to murder federal

agents.

The first argument is the same as Craddock's and fails for the

same reason. The second argument is more problematic. Fatta was89

not present at Mount Carmel on February 28 or thereafter. Unlike

the other defendants whose ac tivities on the day of the ATF raid

and the reafter demonstrated both the existence of and their

mem bership in the conspiracy to murder federal agents, Fatta's

membership in that conspiracy turns solely upon his conduct prior

to February 28, 1993.

The district court adopted the PSR's findings that the

Davidians had prepared in advance for a war with the U.S.

Government and that "Paul Fatta assisted in thi s preparation by

purchasing and thereby providing firearms for Koresh and other

Davidians knowing these weapons would be used against law

enforcement officials." This finding is not clearly erroneous.

We n ote that the district court need only be persuaded by a

preponderance of the evidence that a conspiracy to murder federal

agents existed prior to February 28. United States v. Mackay , 33

F.3d 489, 496 (5th Cir. 1994) (holding that district court "may

base the findings underlying its sentence on facts in the record

that have been proven by a preponderance of the evidence").

Kathryn Schroeder testified that Paul Fatta began going to gun

shows and purchasing weapons after Koresh began preaching about the

apocalyptic confrontation with the "beast". Indeed, Fatta was one

of the Davidians' primary gun purchasers, and he traveled to gun

shows numerous times, on at least one occasion with Koresh himself.

In addition, Fatta had intimate knowledge of the amount and

type of weapons purchased by Koresh and the other Davidians. Fatta

was the owner of the Mag Bag, the machine shop through which much90

of the Davidians' firearm purchases flowed. Fatta himself

purchased tens of thousands of dollars worth of semiautomatic

assault rifles and handguns. He bought cases of ammunition and, on

at least one occasion, nearly $300 worth of .50 caliber armorpiercing rounds. Several of the fully automatic weapons recovered

from Mt. Carmel had been purchased by Fatta. We think that both

the amount and type of firearms acquired by Fatta are significant.

They are c onsistent with Koresh's instruction to prepare for an

armed confrontation with the "beast"; these are not the armaments

of weekend sportsmen or the efforts of an ardent gun collector.

These were weapons of war, by type and quantity. In short, based

on this evidence, the district court could reasonably find by a

preponderance of the evidence that Fatta knew of and had joined the

conspiracy to murde r federal agents. The district court's

application of the § 2K2.1(c) cross-reference is not erroneous.

We do not address Fatta's other contentions challenging the 6-

level enhancement for possession of more than 50 enhanced weapons

and the 4-level enhancement for possessing a destructive device in

c onnection with another felony offense. U.S.S.G. § 2K2.1(b)(1),

(5). As with Craddock, these enhancements had no effect on Fatta's

sentence after the district court applied the § 2K 2.1(c) crossreference.

We affirm Fatta's sentences on Counts 9 and 10 for conspiring

to manufacture and possess machineguns and aiding and abetting the

possession of machineguns, respectively.

C.91

The district court ordered the defendants to pay, jointly and

s e verally, $1,131,687.49 in restitution. The court’s initial

order required that the restitution be paid "solely f rom the

proceeds received by any Defendant from any contract which relates

to the depiction of the crimes for which they were convicted in any

movie, book, newspaper, magazine, radio or television production or

live entertainment of any kind, or any expression of the

Defendants' thoughts, opinions, or emotions regarding such crime."

The defendants argue, and the Government concedes, that such a

limitation would violate the First Amendment. S ee United States v.

Jackson

, 978 F.2d 903, 915 (5th Cir. 1992) (holding that "district

court cannot limit restit ution order solely to the income the

defendants earn on speech associated with their criminal

activities"), cert. denied

, 508 U.S. 945 (1993), and cert. denied

,

113 S.Ct. 3055 (1993); see also Simon & Schuster, Inc. v. Members

of the New York St. Crime Victims Bd. , 502 U.S. 105, 118 (1991).

The district court did not, however, attach the restriction as part

of the judgments entered against the defendants. We affirm the

judgments as entered.

VII.

We AFFIRM the convictions on Counts 2 and 3. Bound by court

law upholding the constitutionality of 18 U.S.C. § 922(o), we

AFFIRM Fatta's convictions on Counts 9 and 10. We VACATE the

sentences on Count 3 and REMAND for findings and resentencing on

that count. Finally, we AFFIRM the sentences on the remaining

counts. We hold the mandate pending the decision in U nited States92

v. Kirk

, 70 F.3d 791 (5th Cir. 1995), opinion vacated

, 78 F.3d 160

(5th Cir. 1996).

SCHWARZER, District Judge, dissenting.

The court’s opinion is thorough and workmanlike and deserves

respect. I regret, however, that I am unable to agree on three

points: (1) that the evidence was insufficient to entitle

defendan ts to a self-defense instruction; (2) that it was not

prejudicial error to exclude the portion of Castillo’s statement

which explained and qualified the portion received into evidence;

and (3) that the evidence sufficed to establish the predicate

offense of conspiracy to murder federal officers.

I. THE FAILURE TO INSTRUCT ON SELF-DEFENSE

A. The Governing Standard

Considerable confusion exists in this circuit over the precise

formulation of the standard for determining whether a defendant is

entitled to an instruction on a theory of defense. This court

recently held that “where the district court ‘refuse[s] a charge on

a defense theory for which there is an evidentiary foundation and

which, if believed by the jury, would be legally sufficient to

render the accuse d innocent,’ this court presumes that the lower

court has abused his discretion.” U nited States v. Correa-Ventura

,

6 F.3d 1070, 1076 (5th Cir. 1993)93

(quoting United States v. Rubio

, 834 F.2d 442, 446 (5th Cir.

1987)). But this court has applied three different standards for

what constitutes “an eviden tiary foundation” requiring a selfdefense instruction: (1) “any evidence” regardless of how

insubstantial; (2) “substantial evidence” defined as “more than a

scintilla”; and (3) “evidence sufficient for a reasonable jury to

find in [the defendant’s] favor” (the formulation adopt ed from

Mathews v. United States , 485 U.S. 58 (1988)).

The “any evidence” standard has been applied in this circuit

since the seminal cases Perez v. United States , 297 F.2d 12 (5th

Cir. 1961), and S trauss v. United States

, 376 F.2d 416 (5th Cir.

1967). Courts have continued to apply the “any evidence” standard

both before and after the Supreme Court's decision in Mathews

, 4857 See, e.g.

, United Sta tes v. Garcia , 452 F.2d 419, 422-23 (5th

Cir. 1971), (“The test is whether there is some evidence to support

the defense theory.”); United States v. Young

, 464 F.2d 160, 164

(5th Cir. 1972) (defendant was “effectively deprived . . . of his

right ‘to have presented instr uctions relating to a theory of

defense for which there is any foundation in the evidence.’”);

United States v. Taglione

, 546 F.2d 194 (5th Cir. 1977) (citing

Strauss

, court stated, “Where the evidence presents a theory of

defense for which there is foundation in the evidence, refusal to

charge on that defense is reversible error.”) ; United States v.

Parke r , 566 F.2d 1304 (5th Cir.) (“In deciding this case we must

look at the facts in the light most favorable to defendant, since

defendant is entitled to jury instructions relating to a theory of

defense for which there is any foundation in the evidence.”), cert.

denied

, 435 U.S. 956 (1978); United States v. Goss

, 650 F.2d 1336,

1343 (5th Cir. 1981) (“We have often held that, if there is any evidentiary support whatsoever for a legal defense, and the trial

cour t's attention is specifically directed to that defense, the

trial judge commits reversible error by refusing thus to charge the

jury

. . . . Because [the proposed defense] was an available

defense, we must determine whether, construing the eviden ce most

favorably to the defense, there was an underlying evidentiary

foundation to support the [de fendant's claim], regardless of how

weak, inconsistent or dubious the evidence of [the d efense] may

have been.”); United States v. Washington , 688 F.2d 953 (5th Cir.

1982) (“Indeed, an instruction specifically embracing the theory of

the defense must be given even though the evidence underlying the

defense be ‘weak,’ ‘insufficient,’ or ‘dubious.’”); United States

v. Rubio

, 834 F.2d 442, 446 (5th Cir. 1987) (“‘[I]f there is any

evidentiary support whatsoever for a legal defense, and the trial

court’s attention is spe cifically directed to that defense, the

trial judge commits reversible error by refusing to charge the

jury.’”) (quoting United States v. Goss , 650 F.2d 1336, 1344 (5th

Cir. 1981)); U nited States v. Kim

, 884 F.2d 189, 193 (5th Cir.

1989) (“A criminal defenda nt is entitled to have the jury

instructed on a theory of the defense for w hich there is any

foundation in the evidenc e.”); U nited States v. Cordova-Larios

, 907 F.2d 40, 42 (5th Cir. 1990) (“A defendant is entitled to have

the jury instructed on a theory of the defense for which there is

any foundation in the evidence.”).

94 U.S . 58, on which the opinion relies. 7 Other courts within the

circuit have applied a slightly more demanding “more than a

scintilla” test. S ee Pierce v. United States

, 414 F.2d 163, 166-68

(5th Cir.), cert. denied

, 396 U.S. 960 (1969); United States v.

Groessel

, 440 F.2d 602, 606 (5th Cir. 1971). But those courts that95

have recognized the existence of the two different standards--”any

evidence” and “more than a scintilla”--have found no outcomedetermining difference between them. S ee United States v. Andrew

,

666 F.2d 915, 922-24 nn.10-11 (5th Cir. 1982); United States v.

Fischel

, 686 F.2d 1082, 1086 n.2 (5th Cir. 1982); United States v.

Leon

, 679 F.2d 534, 539 n.5 (5th Cir. 1982). S ee also United

States v. Hill

, 626 F.2d 1301, 1303-04 n.3 (5th Cir. 1980) (noting

that the semantic discrepancies between these two formulations have

not produced disparate results in cases). Finally, there is U nited

States v. Stowell

, 953 F.2d 188, 189 (5th Cir.) (per curiam), cert.

denied

, 503 U.S. 908, and cert. denied

, 506 U.S. 902 (1992), which

the court reads as explaining away the “any evidence” test based on

a statement in Mathews

, 485 U.S. at 63, that “a defendant is

entitled to an instruction as to any recognized defense for which

there exists sufficient evidence for a reasonable jury to find in8 Mathews did not directly address the evidentiary standard under

which a jury instruction must be given. The quoted statement was

only a link in the Court’s chain of reasoning, leading to a holding

that a defendant is entitled to raise inconsistent defenses. See

Mathews

, 485 U.S. at 63. But the case M athews cites in support of

the quoted statement, Stevenson v. United States

, 162 U.S. 313

(1896), is instructive. See Mathews , 485 U.S. at 63.

Stevenson involved a defendant who was charged with murder.

The t rial court refused to give a jury instruction on the lesser

included offense of manslaughter and the defendant appe aled this

refusal. In deciding whether the trial court erred by failing to

give the instruction, the Court stated:

The evidence might appear to the court to be simply

overwhelming to show that the killing was in fact murder,

and not manslaughter or an act performed in self defense,

and yet, so long as there was some evidence relevant to

the issue of manslaughter, the credibility and force of

such evidence must be for the jury, and cannot be matter

of law for the decision of the court.

. . . .

. . . A judge may be entirely satisfied from the

whole evidence in the case that the person doing the

killing was actuated by malice; that he was not in any

such passion as to lower the grade of the crime from

murder to manslaughter by reason of any absence of

malice; and yet if there be any evidence fairly tending

to bear upon the issue of manslaughter, it is the

province of the jury to determine from all the evidence

what the condition of mind was, and to say whether the

crime was murder or manslaughter.

Stevenson , 162 U.S. at 314-15, 323 (emphasis added). S tevenson

illuminates the meaning of Mathews , making clear that a defendant

is entitled to a defense instruction so long as it is supported by

any evidence.

96 his favor.” But Mathews seems to me a thin reed on which to lean

that proposition. 8

Whateve r formulation of the standard applies here, however,

defendants are entitled to an instruc tion on self-defense. Even

under the Mathews / Stowell standard, which is arguably the most97

demanding of the three, there need only be sufficient evidence in

the record to permit a ju ry to have a reasonable doubt that

defendants wer e not acting in self-defense; this is so because,

while the defendant bears the burden of production on self-defense,

the government maintains the burden of persuasion to prove the

absence of self-defense beyond a reasonable doubt. S ee United

States v. Alvarez

, 755 F.2d 830, 842-43 & n.12 (11th Cir.) (setting

out the bu rden of proof for self-defense under federal criminal

law), cert. denied

, 474 U.S. 905 (1985); United States v. Johnson

,

542 F.2d 230, 233-34 n.4 (5th Cir. 1976). See also Fifth Circuit

Pattern Jury Instruct ions (Criminal Cases), No. 2.51 at 137-38

(1990 ed.). As the following discussion shows, I believe that

there was ample evidence to permit a jury to have had a reasonable

doubt as to whether the defendants acted in self-defense.

B. Sufficency of the Evidence

At the outset it is necessary to recognize that this case is

about the culpability of individual defendants. The crime of which

each defendant was convicted--aiding and abetting the manslaughter

of federal ag ents--was allegedly committed by each defendant

individually; it was not a group crime. Contrary to the opinion’s

general approach, each defendant is entitled to individual

consideration of the charges against him and his defenses.

Specifically, each is entitled to individual determination of his

right to a self-defense instruction. The court acknowledges as

much when it holds that Castillo is not entitled to an instruction9 The factual basis for the c ourt’s conclusion omits the

undisputed evidence, erroneously excluded by the district court,

that Castillo took cover during the gun battle and never fired a

shot. See infra p. number

.

98 because of the evidence reflecting his conduct on the day of the

gun battle, 9 but the court forsakes t his approach in other

respects.

The first issue is whether, treating each defendant

individually, there is evidence in the record showing that he was

the aggressor in the gun battle. The defense of self-defense is

available only to one who is “not the aggressor.” S ee Wayne R.

LaFave & Austin W. Scott, Jr., Criminal Law § 53 (1972). If there

were evidence that any of these defendants had provoked the

shooting, that evidence might dis qualify that defendant from

claiming a se lf-defense instruction. But a defendant is not

required to take the stand to deny his role as an aggressor.

Here, there is no evidence that any of the individual

defendants provoked the shooting. While there is conflicting

evidence as to whether the first shot came from within the compound

or outside the compound, no evidence identifi es any of the

individual defendants as firing the first shot. In the absence of

such evidence, the defendants were entitled to a self-defense

instruction so long as there was enough evidence to permit a

reasonable jury to have a reasonable doubt about whether the agents

did not use excessive force.

The “first shot” evidence is, therefore, of limited

significance. To the extent that evidence is relevant to whether1 0 While the court must determine whether the requisite amount of

evidence has been produced to support the instruction sought, the

court may not weigh the evidence and pass on its credibility. S ee

Pierce , 414 F.2d at 166 (“[O]nce there is [sufficient evidence to

raise the defense and justify its consideration], it is the

function of the jury to weigh i t, and the judge cannot refuse to

submit the issue merely because he thinks that the defense has

lit tle merit.”). S ee also Stevenson

, 162 U.S. at 316 (“If there

were some appreciable evidence [to support the instruction sought],

its proper weight and credibility were for the jury.”); S trauss

, 376 F.2d at 419 (“If the trial judge evaluat es or screens the

evidence su pporting a proposed defense, and upon such evaluation

declines to charge on that defense, he dilutes the defendant’s jury

trial by removing the issue from the jury’s consideration.”).

99 any defendant was an aggressor, the court’s treatment of it goes

beyond the determination of its suffi ciency and engages in

i mpermissible weighing and evaluation of its credibility. 1 0 The

opinion rejects Ballesteros’ testimony because it was contradicted

at trial and Castillo’s post-arrest statement as a “self-serving,

post-arrest” statement contradicted by “overwhelming” testimony of

agents and media representatives and by physical facts. The

evidence the opinion describes, however, portrays a scene of great

complexity and confusion. Deciding who shot first based on that

evidence requires a difficult factual determination that should not

be made by a court of appeals, but should have been left to a jury.

The heart of the matter is w hether there was sufficient

evidence to raise a reasonable doubt as to whether the agents used

excessive for ce. The defendants contend that the evidence shows

that agents fired indiscriminately through the windows and walls of

rooms from which no gunfire originated. This contention was amply

supported by the testimony of Kathryn Schroeder and Marjorie Thomas1 1 Kathryn Schroeder, a government witness, testified that on the

morning of February 28, 1993, she was in her room with her children

watching out the window. She testified that there were no firearms

in her room at that time. (R. 4455.) While watching out the

window, she saw uniformed men jump out of two cattle trucks and

start running up the walk with rifles pointed and held about midway, meaning not all the way at their shoulders. (R. 4460-63.)

She testified, “Then alm ost immediately, I heard shots.” (R.

4462.) When she heard the shots, she got down on the floor. (R.

4463.) “Within another five or ten seconds,” (R. 4463), or

(another estimate) “about 15-20 seconds” after the in itial shot,

(R. 4603), shots began coming into her room. According to

Schroeder’s testimony, bullets came through her window and walls,

(R. 4602, 4663, 4665-66), from the top of the window to the bottom

as well as through the corner of the window and wall, (R. 4603,

4464); about a half dozen shots came through the window, (R. 4464);

and dogs were shot in front of her room, (R. 4602, 4665-66). She

testified that after the onset of the gunfire she and her children

got down on the floor and she had her children lie under the beds.

(R. 4464.) According to her testimony, Schroeder never fired a

shot during this time, (R. 4665-66), and no one else fired from her

room either, (R. 4602-03). Schroeder testified that after she was

on the floor she heard the gunfire going on and on. (R. 4465.) As

the gunfire continued, she was able to tell which bullets were coming from outside and which were coming from inside. (R. 4465.)

She feared for her life so she stayed on the floor. (R. 4602.)

Eventually, Brad Branch came in and asked if they had a man and/or

a gun in the room. When they said no, he said they had to get out

because it was not safe there. (R. 4466.)

Similarly, Marjorie Thomas, also a government witness,

testified (by video deposition) that, on the morning of the 28th,

she went into her room and saw her friends looking out the window.

(Transcript of redacted video depositio n at pp. 28-29.) Thomas

joined them at the window and saw three helicopters approaching.

As the helicopters drew nearer, she h eard a sound. Then bullets

began coming through the window, shattering the blinds. (Tr. 30-

31.) Thomas explained in her testimony that she saw the helicopter

first and then heard a shot, (Tr. 181), but she did not know if the

shot came from the helicopter. (Tr. 197.) She saw a man hanging

from the helicopter, but could not tell if he was armed . (Tr.

200.) She just knew that the first shot she heard came from

outside. (Tr. 181.) Thomas testified that the gunfire coming into

the room shattered the window and left a bullet hole above the

window near the ceiling.

(Tr. 145.) She testified that when she saw the helicopter and

heard the shots, she thought they were all in danger of being

killed. (Tr. 87-88.) She and the other women dived to the floor

to avoid the bullets flying overh ead. (Tr. 30-31.) After they

100 (summarized i n the margin), 1 1 who were present in the compoundwere on the floor, someone called up from the second floor to hand

over their guns; three of the women in the room had guns present.

(Tr. 32.) Thomas testified, however, that when the women were

looking out the window before the gunfire started, they were not

firing weapons or sticking anything out of the window. (Tr. 197.)

Whe n the person called up from the second floor asking for the

guns, the wom en retrieved the guns from the floor, the bed, and

beside the bed. They then passed the guns, along with ammunition

vests, down to the lower floor. Thomas testified that she did not

see who received the guns. (Tr. 33-34.) After passing the guns

and ammunition to the lower floor, the women remained in the loft.

Thereafter, someone called for them to come down to the second

floor because it was not safe for them to be in the loft. At that

time they all went to the second floor where Thomas saw many women

and children on the floor close tog ether, almost on top of each

other. (Tr. 35.) Thomas testified that they remained on the

ground du ring the shooting. Bullets were flying everywhere and

they feared for their lives. Thomas testified that, during this

time, she did not see anyone on the floor near her shooting out at

the agents. (Tr. 116-19.)

101 during the gun battle and were called at trial as government

witnesses. The court rejects this evidence because it does not

show that any of the defendants came under indiscriminate,

unprovoked fire or knew that such fire was taking place. S ee supra

p. number . That Schroeder and Thomas might have been entitled to

a self-defense instruction had they been defe ndants, the opinion

argues, does not vicariously entitle these defendants to such an

instruction.

It is difficult t o accept the opinion’s contention that the

testimony of Schroeder and Thomas provides no basis upon which a

jury could infer that defendants knew of and were responding to

excessive force. The opinion suggests that, before defendants

could claim to be entitled to a self-defense instruction, Thomas or

Schroeder had to tell them about the gun fire they witnessed. S ee

supra p. 33. However, there is substantial evidence, recited102

elsewhere in the opinion, that during the gun battle the defendants

were active in the same area in which Sc hroeder and Thomas were

located and that the latter were close enough to observe the

defendants’ activities and hear their exclamations. S ee supra pp.

63-65. If the evidence showed that the defendants were in the same

general vicinity as Schroeder and Thomas while a battle involving

helicopters and some 76 well-armed ATF agents raged in the compound

and ultimately resulted in over 30 casualties, surely that evidence

was sufficient to raise an issue for the jury as to whether the

defendants knew of and were responding to the random firing through

walls and into windows observed by Schroeder and Thomas.

Finally, while we can all agree, as the opinion states, that

a citizen may not initiate a firefight so lely on the ground that

the police sent too many well-armed officers to arrest him, it is

too late in the day to argue that there are no limits on the amount

of force the police may u se in executing warrants. The Fourth

Amendment protects individuals against “the use of excessive force

by a law enforcement officer even when that officer is making a

lawful arrest.” U nited States v. Span

, 970 F.2d 573, 577 n.3 (9th

Cir. 1992) (citing Graham v. Conner

, 490 U.S. 386, 394-96 (1989)).

“[D]etermining whether force used to effect a particular seizure is

‘reasonable’ under the Fourth Amendment requires a careful

balancing of ‘the nature and quality of the intrusion on the

individual’s Fourth Amendment interests’ against the countervailing

governmental interests at stake.” G raham

, 490 U.S. at 396. The

opinion declares that a “dynamic entry” by 76 agents armed with 9103

millimeter pistols and AR-15 semiautomatic rifles and accompanied

by helicopters will not support an inference of unreasonable force.

But under the court’s sweeping rationale, it would have made no

difference if the agents had been sup ported by armored personnel

carriers, or by tanks, or by suppression fire from aircraft.

In conclusion, this appeal presents no mere “lawyer’s sporting

search for error” or for a “device for defendant to inv oke the

mercy-dispensing prerogative of the jury.” S ee supra p. n umber

.

The trial judge gave a self-defense instruction in connection with

the principal offense; while obviously not de terminative, that

shows that the person in the best position to evaluate the evidence

regarded it as sufficient to warrant such an instruction. These

defendants had a serious claim that the ATF used excessive force.

Therefore, they were entitled to a self-defense instruction in

relation to the manslaughter charge, and the trial court’s failure

to give one was reversible error.

II. EXCLUSION OF A PORTION OF CASTILLO’S STATEMENT

Texas Ranger De Los Santos testi fied that Castillo made the

following statement about the day of the battle:

That in the morning he heard someone saying that

something was going to happen, so he got out of bed, put

on his black clothing and an ammunition vest which held

eight magazines, and picked up his AR-15. He then looked

out the window and sa w two cattle trailers approaching

the compound. When he saw them he exited his room and

went to the foyer where h e saw Vernon Howell, Perry

Jones, and others. Vernon Howell opened the front door

and stated “Wait a minute, there’s women and children in

here.” Then gunfire erupted through the door. When the

gunfire erupted, he tried to chamber a round in his AR15, but it jammed. He then ran down the hallway, back to

his roo m, where he got his own personal 9-millimeter

Baretta pistol. He exited his room and went down the104

hallway toward the other end of the compound to the

second to the las t room, facing the front of the

compound. He entered that room, where there were three

other Davidians.

Following this testimony, the prosecutor as ked De Los Santos

questions to clarify that the room Castillo entered faced the front

of the compound. The clear inference to be drawn from this

testimony is that, upon entering that room, Castillo participated

in the gun battle, thereby aiding and abetting the manslaughter of

federal agents.

The court barred Castillo from eliciting testimony from De Los

Santos about the following portion of Castillo’s statement:

Castillo went int o the room identified as McBean,

Summers, and Hipsman’s room. Castillo stated he took

cover during the shooting, never firing a shot. Castillo

also stated no one in his room fired a round. Castillo

claims that he doesn’t know who fired a weapon inside.

See supra p. number (emphasis added). This excluded portion of

Castillo’s statement reveals the potentially misleading nature of

the admitted portions of his statement.

Under the rule of completeness embodied in Fed. R. Evid. 106,

additional portions of a defendant’s statement must be admitted if

they are “relevant to the issues [in the case]” and “ q ualify or

explain the subject matter of the portion offered by the opponent

. . . .” U nited States v. Crosby

, 713 F.2d 1066, 1074 (5th Cir.),

cert. denied , 464 U.S. 1001 (1983) (emphasis added).

Citing United States v. Smith

, 794 F.2d 1333, 1335 (8th Cir.),

cert denied , 479 U.S. 938 (1986), the court upholds the exclusion

of this portion of the testimony because it leaves Castillo’s

“pick[ing] up his handgun

. . . unqualified and unexplained.” S ee105

sup ra p. n umber

. S mith

, however, is not analogous to this case

but, in fact, reveals the weakness of the court’s reasoning here.

In Smith

, a police officer testified about a small portion of

a defendant’s post-arrest stat ement that he “was present on

Hamilton Street at the time of [his co-defendant’s] arrest and

observed the arrest . . . [and] that he owned a red or maroon

bicycle.” See Smith , 794 F.2d at 1335. That statement served as

a parti al admission supporting the testimony of two government

witnesses who placed the defendant in the vicinity of Hamilton

Street at the time of his co-defendant’s arrest. I d. Additional

state ments the defendant sought to have admitted were: “(1) that

[the defendant] had met [his co-defendant] two months earlier; (2)

that five weeks before [the defendant’s] arrest [his co-defendant]

asked [the defendant] if he could dispose of Anheuser-Busch stock

certificates; (3) that [the defendant] never dealt in stocks; (4)

t hat stocks were a ‘white boy’s game’; and (5) that he was not

involved in attempting to sell the stocks and had no idea what to

do with stock certificates.” None of these statements are related

to the defendant’s presence on Hamilton Street at the time of his

co-defendant’s arrest and, therefore, could not be said to qualify

or explain the admitted portion of the statement. The only thing

that could be said about the additional statements was that they

were exculpatory. Thus, while Smith stands for the fact that the

exculpatory nature of a statement does not a lone require its

admission under the Rule 106 fairness analysis, Smith does not106

speak to why Castillo’s statement that he took cover in the room

and did not fire his gun does not qualify the statement that he

picked up a gun and went in to the room facing the front of the

compound (the side from which much of the Davidian gunfire came)

and, therefore, should have been admitted.

Instead, Smith highlights the error in no t admitting

Castillo’s additional statements. In S mith

, the lower court

affirmed t he defendant’s conviction, recognizing that the trial

court had allowed “ Sutton to cross-examine the government agent

with respect to the portion of the statement testified to

, [even

though] it refused to allow Sutton to cross-examine . . . with

respect to other portions [of his statement]

. . . .” I d. at 1335-

36 (emphasis added). When De Los Santos placed Castillo armed in

a room facing the front of the compound where the battle was taking

place, Castillo surely was entitled to cross-examine him about that

portion of the statement by asking what else he said about his

presence in that room.

The opinion also cites United States v. Haddad , 10 F.3d 1252

(7th Cir. 1993), which is analogous to this case and supports the

conclusion that the additional portion of Castillo’s statement

should have been admitted. In Haddad , a police officer testified

that the defendant admitted that he knew there was marijuana under

the bed. The trial court, however, excluded testimony that the

defendant, at the same time, had denied knowledge of a gun that was

found under the bed some six inches from the marijuana. The court

held the ruling to be error, saying:107

The admission of the inculpatory portion only (i.e. that

he knew of the location of the marijuana) might suggest,

absent more, that the defendant als o knew of the gun.

The whole statement should be admitted in the interest of

completeness and context, to avoid misleading inferences,

and to help insure a fair and impartial understanding of

the evidence.

10 F.3d at 1259 (ultimately holding that the error was not

prejudicial because the same evidence was received through another

witness).

Here, too, the receipt of the inculpatory por tion of the

statement (that Castillo went armed into a room facing the battle)

required receipt of the other related portion of the statement

( that he took cover and never fired a shot) to avoid misle ading

inferences. S ee, e.g.

, supra p. number (this court’s statement

that “Castillo admitted that he was in a room at the front, armed

with a gun, during the gun battle.”).

Castillo stood ch arged with murder. When De Los Santos’

testimony placed Castillo where he might have fired a fatal shot,

it was abuse of discretion to preclude cross-examination to show

that he had taken cover and never fired a shot.

III. SUFFICIENCY OF EVIDENCE OF CONSPIRACY UNDER § 924(c)(1)

Defendants Branch, Whitecliff, Castillo, Avraam and Craddock

were convicted under section 924(c)(1) and each was sentenced to 30

years. The predicate “crime of violence” on which this conviction

was based was a conspiracy to murder federal officers. Because the

jury acquitted the defendants on the conspiracy count, this court

must determine whether there was sufficient evidence that each of

the defendants joined the conspiracy with the requisite intent.108

See United States v. Powell

, 469 U.S. 57, 67 (1984); United States

v. Ruiz

, 986 F.2d 905, 911 (5th Cir.), cert. denied

, 114 S. Ct. 145

(1993).

Murder is “the unlawful killing of a human being with malice

aforethought.” 18 U.S.C. § 1111. As this court said in U nited

States v. Harrelson

, 754 F.2d 1153, 1173 (5th Cir.), reh’g denied

,

766 F.2d 186, cert. denied

, 474 U.S. 908, a nd cert. denied

, 474

U.S. 1034 (1985), reversing a conviction:

[Defendant] was charged . . . with conspiracy to commit

first degree murder; first degree murder re quires the

criminal intent of premeditation and malice aforethought.

It was therefore incumbent upon the government to prove

[defendant] had that criminal intent . . . .

See also Ingram v. United States

, 360 U.S. 672, 678 (“conspiracy to

commit a particular substantive offense cannot exist without at

least the degree of criminal intent necessary for the substantive

offense itself.”), reh’g denied

, 361 U.S. 856 (1959); United States

v. Beil

, 577 F.2d 1313, 1314-15 (5th Cir.), reh’g denied

, 585 F.2d

521 (5th Cir. 1978), cert. denied

, 440 U.S. 946 (1979). A leading

text elaborates the point:

At the outset, it is useful to note that there are really

two intents required for the crime of conspiracy. Every

cons piracy involves an agreement, so it must be

established that the several parties intended to agree.

But such an intent is “without moral content,” and thus

it is also necessary to d etermine what objective the

parties intended to achieve by their agreement. Only if

there is a common purpose to attain an objective covered

by the law of conspiracy is there liability.

2 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law

§ 6.4(e)(1986).109

The court states that “[t]he record is replete with evidence

of a conspira cy to murder federal agents and each individual

defendant’s membership in that conspiracy.” But the evidence as to

these defendants relating to the events of February 28 reflects at

most that each, as a member of the Branch Davidian sect,

p articipated in some fashion in the gun battle. There is no

evidence that any of them entered into an agreement to kill federal

officers, much less that any did so with premeditation and malice

aforethought. That these defendants were members of the sect led

by David Koresh, whose teachings may well have been inflammatory,

and that they were present in the compound during the battle and in

various ways participants in it, does not support a finding that

each of them conspired to murder federal officers.

Each defendant is entitled to individual justice by means of

a review of the evidence to determine whether the requisite

elements of such a conspiracy have been established as to him.

Failing that, their conviction of the predicate offense r ests on

nothing more than guilt by association.

Accordingly, I would reverse the convictions and remand for a

new trial.