[This is the brief filed in the 5th Circuit Court of Appeals on behalf of Jamie Castillo. The table of contents, table of authorities, and other introductory sections have been removed. The line spacing has been changed from the original. The section symbol sometimes appears as '].

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 94-50437

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JAIME CASTILLO,

Defendant-Appellant

BRIEF OF APPELLANT JAIME CASTILLO

Appeal from the U.S. District Court

for the Western District of Texas

Waco Division

Cause No. W-93-CR-46(5)

Stephen P. Halbrook

10560 Main St., Suite 404

Fairfax, Virginia 22030

(703) 352-7276

Counsel for Appellant Jaime Castillo

STATEMENT OF ISSUES

1. Whether, where a defendant is indicted and found guilty by the jury of using or carrying a "firearm" during and in relation to any crime of violence, in violation of 18 U.S.C. '924(c), the maximum punishment of which is five years imprisonment, the court erred in sentencing defendant to thirty years for using or carrying a "machinegun."

2. Whether the court erred in failing to instruct the jury that self defense is a defense to aiding and abetting manslaughter.

3. Whether, under Rule 106 of the Federal Rules of Evidence and the Fifth Amendment privilege against self incrimination, the court erred in allowing the introduction into evidence of part of a statement by defendant but denied admission into evidence of the remainder of the statement, which established that defendant acted in lawful self defense.

4. Whether a reasonable trier of fact could have found defendant guilty of aiding and abetting manslaughter (Count 2), carrying a firearm in relation to a murder conspiracy (Count 3), or carrying a machinegun (Count 3 as amended by the district court). 5. Whether the court deprived defendant of the opportunity to poll the jury where the court dismissed Count 3 of the indictment, directed the reading of the verdict, dismissed the jury, and thereafter reinstated Count 3.

6. Whether the court erred at sentencing in adding points to the offense level because defendant allegedly conspired to murder federal agents, a charge on which the jury acquitted defendant.

7. Whether the First Amendment is violated by the court-ordered restitution of over $1 million to be paid from proceeds of any contract to express in a book or otherwise defendant's thoughts concerning the crimes of which he was convicted.

8. Whether the court committed any other reversible error applicable to this defendant and raised in the briefs filed by the other appellants in this appeal.

STATEMENT OF THE CASE

Course of Proceedings and Disposition in the Court Below

The superseding indictment filed on August 6, 1993, alleged that Jaime Castillo conspired to murder federal agents, in violation of 18 U.S.C. '1117 (Count 1); aided and abetted the murder of federal agents, in violation of 18 U.S.C. ''1111(a), 1114, and 2 (Count 2); and used or carried a firearm during and in relation to a federal crime of violence, i.e., conspiracy to murder federal agents, in violation of 18 U.S.C. '924(c)(1) (Count 3). (19 Record ["R."] 300, 306, 307, in Record Excerpts ["RE"] tab 3.)

Trial began on January 10, 1994. (Transcript ["TR"] 1.) On January 26, 1994, the court granted the government's motion to exclude certain portions of a statement made by defendant. (22 R. 939, in RE tab 7.)

The government rested on February 15, 1994. (TR 6442.) Defendant Castillo moved for a judgment of acquittal on all counts, which was denied. (TR 6467-69.)

On February 17, 1994, the defense rested. (TR 6873) Defendant Castillo again moved for a judgment of acquittal, which was denied. (23 R. 1268, in RE tab 8.)

Contrary to the request of defense counsel, the court refused to instruct the jury that self-defense is a defense to the lesser-included charge of voluntary manslaughter. (TR 6950-52, 7000-01, 7017, in RE tab 15; 23 R. 1228-30, in RE tab 14.)

On February 26, 1994, the jury informed the court that a verdict had been reached. (23 R. 1270.) The jury found all defendants not guilty of Count 1, conspiracy to murder federal officers. All defendants were found not guilty of aiding and abetting the murder of federal officers as alleged in Count 2, but Castillo and four other defendants were found guilty of the lesser included offense of aiding and abetting voluntary manslaughter. Castillo and six other defendants were found guilty of using a firearm in relation to a federal crime of violence as alleged in Court 3. (23 R. 1273-76, in RE tab 4.)

Before the reading of the verdict, the court stated that it was dismissing Count 3. (TR 7399-7402, in RE tab 16.) The verdict was then published and the jury was dismissed. (TR 7407.) The court indicated that it would render a written order dismissing Count 3. (TR 7409-10.) However, pursuant to the government's motion "to reinstate jury's guilty verdicts on Count Three" (23 R. 1280), on March 9, 1994, the court reinstated the guilty verdicts. (23 R. 1307, in RE tab 9.)

Defendant filed a post-verdict motion for judgment of acquittal and a motion for a new trial. (24 R. 1523, 1526, 1539.) These motions were denied on March 21, 1994. (24 R. 1542, in RE tab 10.)

By judgment entered on June 21, 1994, and amended on June 23, 1994 (25 R. 1610, 1616, in RE tabs 5 and 6), defendant Castillo was sentenced to ten years imprisonment on Count 2 (aid and abet manslaughter) and to thirty years imprisonment on Count 3 ("possession of a firearm"), to be served consecutively. (25 R. 1616-17, in RE tab 6.) He was sentenced to pay a $2,000 fine and restitution in the amount of $1,131,687. (25 R. 1619-20.) By order dated June 20, 1994, restitution was limited to proceeds received by defendant from any book or film contracts concerning the crimes for which he was convicted. (25 R. 1590, in RE tab 11.)

Defendant Castillo filed a timely notice of appeal on June 24, 1994. (25 R. 1622, in RE tab 2.)

Statement of Facts

Mount Carmel, located near Waco, Texas, was for some sixty five years the home of the Branch Davidians, a religious group with origins in the Seventh Day Adventist church. The group was devoted to study of the Bible, which it interpreted to foretell the coming of the Kingdom of God on earth.

For some six years, the spiritual father of the group was a young man who took the name David Koresh. There came a time when the federal Bureau of Alcohol, Tobacco and Firearms ("BATF") suspected that Mr. Koresh and perhaps a small number of his numerous followers were in violation of Chapter 53 of the Internal Revenue Code, which requires registration and taxation of certain firearms. BATF agents refused Mr. Koresh's invitation to communicate with him directly about his firearms purchases. (TR 4861, 4904) Instead, a search warrant was obtained.

Unfortunately, Mount Carmel was not just the single living quarters of Mr. Koresh, but was a building complex in which resided some 115 men, women, and children. BATF made no attempt to serve the warrant peaceably or to arrest Mr. Koresh on those occasions when he was off the premises. (TR 1330, 6714, 6718) Instead, on February 28, 1993, unmarked cattle cars full of 75 BATF agents armed with pistols, shotguns, and MP-5 submachineguns, supported by snipers with rifles at another location, arrived at Mount Carmel for a "dynamic entry," a commando raid against the entire premises and all of its residents. (TR 1445-49, 3826-29)

Not surprisingly, it is disputed as to who fired the first shot. House resident and government witness Kathryn Schroeder testified that she did not hear the agents yell "police" or anything else before the first shots were fired. (TR 4584) No insignia could be seen on the armed men outside, who were dressed in black or dark blue. (TR 4600) Bullets came from the outside through the walls into the house. (TR 4603)

Several residents and four BATF agents were killed on February 28. The FBI's final assault on April 19, 1993, resulted in an inferno consuming the entire building complex, leaving only nine adults alive and some 75 children, men, and women dead. Jaime Castillo was one of those who escaped death.

Very little evidence surfaced in the trial about Jaime Castillo. He was interested in music and religion, and joined the Branch Davidians to pursue these interests. After the fusillade of bullets which occurred when BATF attempted its "dynamic entry," and residents of Mount Carmel were shot dead, Jaime Castillo picked up a rifle, which he never fired. (See III., infra.) At one point on February 28, he exposed himself in a doorway and allowed agents to retrieve two of their wounded. (See IV., infra.) Other than that, there is virtually nothing in the massive transcripts in this case about Jaime Castillo.

SUMMARY OF ARGUMENT

18 U.S.C. '924(c) provides for a five-year sentence for use of a "firearm" in a federal crime of violence, and thirty years for use of a "machinegun." Defendant was indicted for and found guilty of use of a firearm, not a machinegun. The court erred in sentencing him to thirty years imprisonment for this offense.

The court instructed the jury that self defense is a defense to aiding and abetting murder, but refused to instruct that self defense is also a defense to aiding and abetting manslaughter. The district court erred in refusing to give the latter instruction.

At trial, the court allowed admission into evidence of parts of a statement made by defendant and denied admission of other parts of the same statement. The latter were explanatory and exculpatory. This violated Rule 106, Federal Rules of Evidence, and the privilege against self incrimination.

A reasonable trier of fact could not have found that Jaime Castillo aided and abetted voluntary manslaughter (Count 2) or that he used or carried a firearm during and in relation to a conspiracy to murder federal officers (Count 3). Nor was there any evidence that he carried a machinegun (Count 3 as amended by the court after the verdict).

After the jury communicated to the judge that it voted to acquit defendant of Count 1 but guilty of Count 3, the district court dismissed Count 3. The verdict was then published and the jury was dismissed. This violated defendant's right and opportunity to poll the jury as to Count 3.

At sentencing, the court raised the offense level based on its assertion that defendant conspired to murder federal officers. Yet defendant was acquitted by the jury of that allegation (Count 1).

The court ordered defendant to pay over $1 million in restitution from the proceeds of any book or movie contract concerning the crime. This violates the First Amendment.

Defendant Castillo adopts all of applicable grounds of error and arguments raised by the other appellants in this appeal.

ARGUMENT

I. A PERSON MAY NOT BE SENTENCED UNDER '924(C)(1)

FOR USE OF A MACHINEGUN WHERE THE INDICTMENT

DOES NOT ALLEGE, AND THE JURY IS NOT INSTRUCTED

AND DOES NOT FIND, THE USE OF A MACHINEGUN

The indictment alleged, and the jury decided, that defendant was guilty of using a "firearm" in violation of 18 U.S.C. '924(c)(1). However, the district court's Sentencing Findings and Opinion (RE tab 12) decided that the portion of '924(c)(1) that refers to enhanced weapons is an "enhancement provision" and not a "separate offense." (25 R. 1598) The court erroneously proceeded to sentence defendant to thirty years imprisonment for using a "machinegun," an enhanced weapon (25 R. 1617), rather than to five years, the sentence for use of a "firearm." This Court reviews matters of statutory interpretation de novo. United States v. Headrick, 963 F.2d 777, 779 (5th Cir. 1992).

The court began (25 R. 1598-99) by quoting the first sentence of '924(c)(1), which provides:

Whoever, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime which provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which he may be prosecuted in a court of the United States, uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime, be sentenced to imprisonment for five years, and if the firearm is a short-barreled rifle, short-barreled shotgun to imprisonment for ten years, and if the firearm is a machinegun, or a destructive device, or is equipped with a firearm silencer or firearm muffler, to imprisonment for thirty years.

It is undisputed that, to convict a person of use of a "firearm" under this provision, the indictment must make that allegation and the jury must make that finding. It is inconsistent to argue that the indictment need not allege and the jury need not find that a person used a "machinegun."

Moreover, the statute explicitly refers to a "conviction under this subsection" and to a person "convicted of a violation of this subsection," which can only mean that one has been convicted of each element, including the use of a firearm, machinegun, or other weapon. The district court failed to quote or consider the second and third sentences of '924(c)(1), which provide:

In the case of his second or subsequent conviction under this subsection, such person shall be sentenced to imprisonment for twenty years, and if the firearm is a machinegun, or a destructive device, or is equipped with a firearms silencer or firearm muffler, to life imprisonment without release. Notwithstanding any other provision of law, the court shall not place on probation or suspend the sentence of any person convicted of a violation of this subsection, nor shall the term of imprisonment imposed under this subsection run concurrently with any other term of imprisonment including that imposed for the crime of violence or drug trafficking crime in which the firearm was used or carried. (Emphasis added.)

Thus, consideration of the entire statutory text leads to the conclusion that one must be "convicted" of use of a firearm or "convicted" of use of a machinegun. Moreover, the meaning of "conviction" in this subsection was the subject of a recent Supreme Court decision which the district court does not even mention. Deal v. United States, 113 S.Ct. 1993, 1996 (1993), aff'g 954 F.2d 262 (5th Cir. 1992), noted that generally "the word 'conviction' can mean either the finding of guilt or the entry of a final judgment on that finding." Contrary to the district court here, Deal found the former and not the latter meaning to apply to the statute at issue: "In the context of '924(c)(1), we think it unambiguous that 'conviction' refers to the finding of guilt by a judge or jury that necessarily precedes the entry of a final judgment of conviction." 113 S.Ct. at 1996.

Thus, when '924(c)(1) refers to being "convicted" of violations of "this subsection," which includes the use of a machinegun, it refers to the finding of guilt, which in this case was made by the jury, and does not refer to findings by the court at sentencing, when the final judgment of conviction is entered.

The Fifth Circuit has addressed the specific issue here, but the district court refused to follow the decision. Specifically, the district court (25 R. 1599) acknowledged defendants' reliance on United States v. Correa-Ventura, 6 F.3d 1070, 1087 n. 35 (5th Cir. 1993), which states:

We do note (without deciding) that a different situation may be presented when the evidence tends to prove the use of more than one weapon, and the firearms proven fall within different classes of Section 924(c)'s proscribed weapons. For example, if a firearm violation is asserted, and evidence is introduced as to both shotguns and rifles (with a mandatory 5-year imprisonment penalty) and revolvers with silencing equipment (resulting in a 30-year imprisonment), the jury may well be required to agree on which type of weapon was used in order for the court to assess the appropriate penalty. In that instance, a unanimity instruction as to the class of weapon may be necessary, since the legislature, in amending Section 924(c) to provide varying penalties for certain classified firearms, appears to have indicated its intent that a unanimous verdict be reached with respect to the given class of firearms. United States v. Sims, 975 F.2d 1225, 1235-36 (6th Cir. 1992), cert. denied, ___U.S. ___, 113 S.Ct. 1315, 122 L.Ed.2d 702 (1993).

The above was a footnote in support of the proposition that "we recognize that verdict specificity may be required for some violations of 18 U.S.C. '924(c)." Id. at 1087. Strangely, the district court did not discuss the above statement in Correa-Ventura any further, nor did it discuss the Sims case or any of the other precedents which reach the very point at issue here. Instead, the court proceeded to quote cases that are irrelevant to this issue and even to '924(c).

To be sure, the district court does note that Correa-Ventura, 6 F.3d at 1083 n. 22, states that '924(c)(1) defines a separate crime and is not merely an enhancement provision, adding: "That premise was the basis of this Court's Order validating Count Three despite the absence of a guilty finding on Count One." (25 R. 1600) That in itself suggests that the indictment must allege and the jury must find each element, including use of a machinegun. Correa-Ventura, at 1083, also observes that '924(c)'s dependence upon an underlying crime "contributes to the appearance that it is akin to a penalty enhancement provision." But the Court explicitly states that this appearance is not dispositive and that the section establishes a separate crime. Id.

Sims, endorsed by the Fifth Circuit above, involved four '924(c) counts, one alleging a machinegun, and three alleging firearms. 975 F.2d at 1231. However, under the Double Jeopardy Clause, a court may not sentence a defendant for more than one '924(c) offense which relates to only one predicate offense. Id. at 1233. Since only one predicate drug trafficking offense was involved in Sims, the court held that multiple '924(c) counts must be consolidated into one count. Id. at 1235. The court explained:

This may be accomplished prior to trial by consolidating those counts into a single section 924(c) count and submitting special interrogatories or a special verdict form to the jury, requiring that if the jury returns a guilty verdict on the gun charge, it must specify which category or categories of weapons it unanimously has found the defendant was using or carrying. Or, it may be accomplished by submitting the separate gun counts to the jury and, should there be more than one conviction, merging those convictions after trial. Id.

In short, the jury must determine whether the defendant used a "firearm" or a "machinegun." And if the jury convicts the defendant of using both a firearm and a machinegun, the court should merge the counts and sentence the defendant for use of a machinegun. Id. at 1236. In any event, the jury must actually convict the defendant specifically of using a machinegun. Id. at 1235-36.

Sims was followed in United States v. Martinez, 7 F.3d 146, 148 n. 1 (9th Cir. 1993), which held:

Where the defendant is charged for using different types of weapons under section 924(c)(1), the district court should either (1) submit separate counts under section 924(c)(1) to the jury, and, if there is more than one conviction, merge those convictions after the trial, or (2) submit one section 924(c)(1) charge to the jury to specify which weapon or weapons the defendant used or carried.

In Martinez, the jury convicted the defendant of one predicate count, one count of use of a machinegun, and one count of use of a firearm. Id. at 147. Since "the jury found that Martinez used or carried both weapons," it was appropriate to merge the counts and to sentence the defendant only for the machinegun. Id. at 149.

The First Circuit was next in line to adopt the Sims-Martinez reasoning. United States v. Melvin, 27 F.3d 710, 711 (1st Cir. 1994) noted that "all parties concede that the jury mistakenly was not asked to identify which of the six firearms at issue in this case--ranging from machine guns to handguns--underlay its guilty verdict . . . ." The United States itself agreed with defendant's position in the case at bar:

The government acknowledges that a defendant found guilty of violating '924(c) may be sentenced to a thirty-year term only if the jury specifically identifies a machine gun or silencer as the firearm supporting the conviction. . . . . It also is undisputed that the jury in this case mistakenly was not asked to specify the weapon or weapons underlying its verdict. Id. at 714.

Nonetheless, the government argued that the jury made an "implicit" finding that machineguns were used. Id. The district court made its own finding based on a preponderance of the evidence that the defendants used machineguns. Id. However, the district court found that because it had not submitted the issue to the jury, it could impose only a five-year sentence. Id. The government sought to appeal the sentence because "the record" showed use of a machinegun. Id. at 712.

Melvin decided that "we may not exclude beyond a reasonable doubt the possibility that the jury rendered a guilty verdict . . . based on a determination that the defendants possessed only a handgun . . . ." Id. at 715. The verdict did not establish that defendants used "weapons subject to a term of imprisonment greater than five years." Id. Thus, the court affirmed the five year sentence. Id.

The issue also arose in United States v. Rodriguez, 841 F.Supp. 79, 81 (E.D.N.Y. 1994), which states: "The government submits that . . . the enhanced penalty for use of a firearm equipped with a silencer is not a matter for the jury in determining whether guilt has been proved, but only for the court in sentencing. This court disagrees . . . ."

The government argued that whether an enhanced weapon was used was an issue for the sentencing court, not the jury, citing United States v. Harris, 959 F.2d 246 (D.C.Cir.), cert. denied 113 S.Ct. 362 (1992). To the contrary, Rodriguez, 841 F.Supp. at 81-82, observed:

The Harris jury was asked to decide (1) whether the defendant knowingly possessed and used a firearm, and (2) whether that firearm was, in fact, a machinegun. Id. at 258-59. So too in this case, the jury will have to find, inter alia, that the defendant knowingly used a firearm in relation to a drug trafficking crime, and that the firearm at issue was equipped with a silencer.

The district court in the case at bar quoted at length from Harris (25 R. 1603), but the quotations relate to mens rea issues, and not to the issue here. The relevance of Harris here is accurately explained above by Rodriguez.

The district court noted (25 R. 1600) the following statement in Smith v. United States, 113 S.Ct. 2050, 2053 (1993):

Section 924(c)(1) requires the imposition of specified penalties if the defendant, "during and in relation to any crime of violence or drug trafficking crime[,] uses or carries a firearm." By its terms, the statute requires the prosecution to make two showings. First, the prosecution must demonstrate that the defendant "use[d] or carrie[d] a firearm." Second, it must prove that the use or carrying was "during and in relation to" a "crime of violence of drug trafficking crime."

The district court proceeded to state: "Under the plain language of the statute, and the Supreme Court's determination of the elements, the type of weapon is not an element of the offense." (25 R. 1600) This is accurate only to the extent the prosecution wishes to prove that the weapon is a "firearm," which could be a rifle, pistol, or shotgun. Smith certainly does not state that a machinegun need not be alleged and proven in order to convict for a machinegun. In fact, the district court conceded (n. 1):

It should be noted, however, that because the defendant in Smith was actually indicted for and convicted of using or carrying a machinegun during a drug trafficking crime, the particular issue facing this Court was not presented. The indictment alleged that the defendant "knowingly used the MAC-10 and its silencer during and in relation to a drug trafficking crime." Smith at 2053.

In fact, after noting that the indictment alleged that the defendant "knowingly used the MAC-10," Smith stated that "the jury convicted petitioner on all counts." Id. Thus, in Smith, the indictment alleged, and the jury found, that the defendant used a machinegun.

The district court (25 R. 1601) called attention to United States v. Singleton, 16 F.3d 1419, 1423 (5th Cir. 1994) (citing Smith), which stated: "The relevant portions of '924(c) require proof of only two elements: the defendant (1) used or carried a firearm (2) during and in relation to a crime of violence." That case only involved a "firearm." What Singleton called "the relevant portions" of '924(c) are certainly not the relevant portions at issue here.

Similar to Smith, in United States v. Capote-Capote, 946 F.2d 1100, 1102 (5th Cir. 1991), cert. denied 119 L.Ed.2d 204 (1992), defendants "were indicted . . . [for] using and carrying a fully automatic machine gun during and in relation to a drug trafficking offense in violation of" '924(c), and "a jury" found certain defendants guilty of that charge. They challenged "the sufficiency of the evidence in support of their conviction . . . for using or carrying a machine gun." Id. at 1103. Clearly, naming a machinegun in the indictment and the jury instructions is recognized in the Fifth Circuit to be the appropriate practice.

Instead of deciding on the basis of the above jurisprudence concerning the statute at issue, the district court focused on a wholly irrelevant statute, 21 U.S.C. '841, which contains enhancing provisions based on the quantity of controlled substances involved. (25 R. 1599-1602) United States v. Royal, 972 F.2d 643, 650 (5th Cir. 1992), cert. denied 122 L.Ed.2d 655 (1993), which the district court cites, held that "quantity is not an element of the offenses proscribed by '841(a)." What that has to do with the statute at issue here is unclear.

As the district court noted (25 R. 1602), the following factors are relevant in determining whether a statute creates an independent offense or is merely a sentence enhancement: (1) punishment is predicated upon conviction under another section; (2) the statute multiplies the penalty received under another section; (3) the statute provides guidelines for sentencing hearings; and (4) the statute is titled as a sentencing provision. United States v. Jackson, 891 F.2d 1151, 1152 (5th Cir. 1989); United States v. Affleck, 861 F.2d 97, 98 (5th Cir. 1988), cert. denied 489 U.S. 1058 (1989).

The district court concedes (25 R. 1602-03) that here, punishment is not predicated upon a conviction for another offense, the first factor. United States v. Munoz-Fabela, 896 F.2d 908, 909 (5th Cir.), cert. denied 498 U.S. 824 (1990) ('924(c)(1) "constitutes an independent basis for criminal liability."); United States v. Ruiz, 986 F.2d 905, 911 (5th Cir.), cert. denied 114 S.Ct. 145 (1993).

As to the second factor, the district court notes that the statute multiplies the penalty received under another section. (25 R. 1603) The district court disregards the third factor, that the statute provides guidelines for sentencing hearings, which this statute obviously does not.

While the fourth factor is met because the statute is titled "Penalties," the district court wrongly concluded that "Congress intended the enhancement factors to be just that, and not essential elements." (25 R. 1603) Following that logic, one would only have to be convicted of a predicate offense to be sentenced under '924(c), even for just a "firearm," which is clearly contrary to the above precedents. The Fifth Circuit in Correa-Ventura, 6 F.3d at 1083 & n. 22, clearly states that, despite the fact that its dependence upon an underlying crime "contributes to the appearance that it is akin to a penalty enhancement provision," '924(c)(1) defines a separate crime and is not merely an enhancement provision.

In sum, it is well established that, to sentence a defendant to thirty years for use of a machinegun in a crime of violence under '924(c), the indictment must allege, and the jury must be instructed and must find, that the defendant used a machinegun, not just a firearm. Here, the indictment alleged and the jury found only use of a firearm. Consequently, the district court erred in sentencing the defendant to thirty years incarceration, and was authorized to sentence the defendant to only five years.

II. THE COURT ERRED IN REFUSING TO CHARGE THE

JURY THAT SELF DEFENSE IS A DEFENSE TO MANSLAUGHTER

Defendant was convicted of aiding and abetting voluntary manslaughter, which is defined in part as "the unlawful killing of a human being without malice." 18 U.S.C. '1112(a). The court erred in refusing to instruct the jury, as defense counsel requested, that a killing done in defense of self or others is not unlawful, and hence is a defense to manslaughter. (TR 6950-52, 7000-01, 7017, in RE tab 15; 23 R. 1228-30, in RE tab 14.) This Court reviews matters of law de novo. United States v. Headrick, 963 F.2d 777, 779 (5th Cir. 1992).

Holloway v. McElroy 632 F.2d 605, 630-31 (5th Cir. 1980), cert. denied 451 U.S. 1028 (1981), applying Georgia law, reversed a voluntary manslaughter conviction because of failure to give a correct self defense instruction, holding that "unlawfulness--in the sense of absence of excuse or justification--is an essential element of the crime of murder. By incorporation, it is also made an essential element of the crime of voluntary manslaughter." The court further explained:

Having decided that the absence of self-defense is an essential element of the crime of voluntary manslaughter, and that the trial court's charge operated to place the burden of persuasion on Holloway on this issue, we are compelled . . . to conclude that Holloway's conviction was in violation of his due process rights under the United States Constitution.

Id. at 635.

This rule was reaffirmed in Tennon v. Ricketts 642 F.2d 161, 164 (5th Cir. 1981) as follows:

For both murder and voluntary manslaughter, unlawfulness, in the sense of absence of excuse or justification, is an essential element of the crime. The [Holloway] court defined this unlawfulness as an absence of self-defense, noting that lawfulness was proved by establishing self-defense.

A review of Supreme Court jurisprudence makes clear that self defense is a defense to manslaughter. Beginning with the law of self defense, Brown v. United States, 256 U.S. 335, 343 (1921) states:

If a man reasonably believes that he is in immediate danger of death or grievous bodily harm from his assailant, he may stand his ground, and that if he kills him, he has not exceeded the bounds of lawful self-defense. . . . Detached reflection cannot be demanded in the presence of an uplifted knife.

Further, Gourko v. United States, 153 U.S. 183, 191 (1894) held that arming oneself for self defense does not turn a homicide into murder or manslaughter:

the jury were not authorized to find him guilty of murder because of his having deliberately armed himself, provided he rightfully so armed himself for purposes simply of self-defense, and if, independently of the fact of arming himself, the case, tested by what occurred on the occasion of the killing, was one of manslaughter only.

Gourko makes clear that self defense is a defense to both murder and manslaughter:

If the accused was justified in the eye of the law in arming himself for self-defense, and if without seeking but on meeting, his adversary, or a subsequent occasion, killed him not in necessary self-defense, then his crime was that of manslaughter or murder, as the circumstances, on the occasion of the killing, made it the one or the other. If guilty of manslaughter, looking alone at those circumstances, he could not be found guilty of murder by reason of his having previously armed himself solely for self-defense.

Id. at 191-92 (emphasis added).

Similar to the case at bar, in Beard v. United States 158 U.S. 550 (1895), the defendant was charged with murder but was convicted of manslaughter. The court reversed the conviction because the charge concerning self defense was in error, thereby making clear that self defense is a defense to manslaughter. The Court described the law of self defense as follows, which would have been the correct jury instruction when the defendant was retried for manslaughter:

The defendant was where he had the right to be, when the deceased advanced upon him in a threatening manner, and with a deadly weapon; and if the accused did not provoke the assault and had at the time reasonable grounds to believe and in good faith believed, that the deceased intended to take his life or do him great bodily harm, he was not obliged to retreat, nor consider whether he could safely retreat, but was entitled to stand his ground and meet any attack made upon him with a deadly weapon, in such way and with such force as, under all the circumstances, he, at the moment, honestly believed, and had reasonable grounds to believe, was necessary to save his own life or to protect himself from great bodily injury.

Id. at 564.

Stevenson v. United States, 162 U.S. 313, 321-22 (1896) involved a shootout between a deputy U.S. marshal and a citizen. There was contradictory evidence over who fired first; the citizen claimed that the marshal, without warning, shot at the citizen, barely missing his head, and that the citizen shot back in self defense, killing the marshal. The Court stated:

It is difficult to think of a case of killing by shooting, where both men were armed and both in readiness to shoot, and when both did shoot, that the question would not arise for the jury to answer, whether the killing was murder or manslaughter, or a pure act of self-defense. The evidence might appear to the court to be simply overwhelming to show that the killing as 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 source of such evidence must be for the jury, cannot be matter of law for the decision of the court.

Id. at 314-15.

Stevenson is yet another case in which the Supreme Court held that self defense is a defense to both murder and manslaughter. The Court explained:

The fact that the evidence might raise an issue as to whether any crime at all was committed is not in the least inconsistent with a claim that it also raised an issue as to whether or not the plaintiff in error was guilty of manslaughter instead of murder. It might be argued to the jury, under both aspects, as an act of self-defense and also as one resulting from a sudden passion without malice. Id. at 322.

As the Court concluded: "We only decide that the question as to the grade of the crime, whether murder or manslaughter, should have been submitted to the jury as well as the question of self-defense." Id. at 323. The defendant was thus entitled to a new trial.

McNeil v. Cuyler 782 F.2d 443, 446 (3rd Cir. 1986), cert. denied 479 U.S. 1010 (1986), clarifies that voluntary manslaughter may be based on a person's genuine but unreasonable belief that the killing is necessary in self defense, but that self defense as a defense to murder or manslaughter means that the belief is reasonable:

The trial judge's charge included a long definition of first- and second-degree murder; a charge on the subject of self-defense . . .; and a discussion of that form of voluntary manslaughter based on "heat of passion" and "provocation." However, there was only a brief reference to the theory of voluntary manslaughter based on the defendant's genuine but unreasonable belief that the shooting was necessary in self-defense--the type of voluntary manslaughter the district court viewed as most plausibly applicable to McNeil's defense.

McNeil makes the above distinction even clearer in the following language:

Evidence of Walker's aggressive nature would have been relevant either to a self-defense verdict for McNeil, which excuses a shooting perpetrated in reasonable fear of one's own life, or a voluntary manslaughter verdict, which applies to shootings in "unreasonable fear."

Id. at 450.

United States v. Scafe, 822 F.2d 928, 932 (10th Cir. 1987) also expostulates the correct view that a court should instruct the jury on the elements of murder and manslaughter, and that self defense is a defense to either:

Voluntary manslaughter is a lesser included offense of murder. It is the unlawful killing of a human being without malice upon a sudden quarrel or heat of passion. . . . Manslaughter differs from first degree murder in that there is no element of "malice aforethought." Malice is negated by the heat of passion. . . . Where there is evidence of circumstances exciting in the defendant's mind a sudden passion, either of rage or fear, it can be found that there was a willful and unlawful killing, but at the same time one without malice, and thus manslaughter and not murder. . . . Further, self defense and voluntary manslaughter instructions are not always inconsistent.

Scafe added: "A defendant is entitled to jury instructions on any theory of defense finding support in the evidence and the law. Failure to so instruct is reversible error." Id. at 932.

Kinard v. United States, 96 F.2d 522, 526 (D.C.Cir. 1938) explained that self defense is a defense to both murder and voluntary manslaughter as follows:

Provocation sufficient to produce a heat of passion and a resulting absence of malice may give such character to a homicide as to make it manslaughter; the same provocation may, under slightly varied circumstances, justify a person in killing in self-defense. . . . Heat of passion may be produced by fear as well as by rage . . . and, if the provocation therefor is adequate . . ., the resulting killing may be manslaughter. The essence of the self-defense situation is a reasonable and bona fide belief of the imminence of death or great bodily harm. . . . Heat of passion may or may not be present. It is the function of the jury, under proper instructions, to determine whether either defense is available to the accused under the circumstances of the particular case.

Since the trial court had not so instructed the jury, the case was reversed and remanded for a new trial. Id.

Because the court here refused to charge the jury that self defense is a defense to manslaughter, the judgment of conviction on Count 2 must be set aside.

III. THE TRIAL COURT ERRONEOUSLY EXCLUDED EXCULPATORY

PORTIONS OF CASTILLO'S STATEMENT, CONTRARY TO RULE 106

After exiting the burning buildings on the final day, defendant Castillo made a statement to Texas Ranger De Los Santos. The government offered major portions of the statement into evidence, but the court, both in a pretrial order and at trial, refused to allow admission of the remainder, which was exculpatory and explanatory. Had the excluded statements been heard by the jury, there is a substantial likelihood that the jury would have acquitted Mr. Castillo of all charges. The error being prejudicial, the convictions must be set aside. While the trial court has some discretion concerning the presentation of evidence, the issue here is a matter of law which is to be reviewed de novo. United States v. Headrick, 963 F.2d 777, 779 (5th Cir. 1992).

The refusal of the court to allow introduction of the full statement was contrary to Rule 106, Federal Rules of Evidence, which provides:

Remainder of or Related Writings or Recorded Statements. 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 statement which ought in fairness to be considered contemporaneously with it.

The interview took place on April 19, 1993, only two hours after Mr. Castillo escaped the fire, at the county jail in Waco. (TR 3099.) Mr. Castillo, whose hands were injured and whose hair and skin were burned, signed a waiver of rights. (Report of Investigation & 4, 22 R. 929; TR 3069.) The following sets forth pertinent parts of the statement given by Mr. Castillo, showing the portions excluded from evidence by the court in bold type and the portions admitted into evidence in normal type.

Early on the morning of the BATF raid, February 28, Castillo was in bed when "he heard someone say that something was going to happen." He "put on a vest that was capable of holding eight (8) ammunition magazines of an AR-15 that he was given before 02-28-93." (Report & 7.B, 22 R. 930; TR 3050-51, 3091-93.) After seeing cattle trucks driving up, Castillo went to the front door with Vernon Howell (David Koresh). "CASTILLO was carrying an AR-15 rifle. That HOWELL was wearing regular clothes and unarmed." (Report &7.D, 22 R. 930; TR 3051, 3055, 3093.) The Report continues:

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 front door when 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. (Report & 7.E, 22 R. 930; TR at 3051-53, 3094.)

After his rifle failed, CASTILLO stated that he ran down the hallway and back into his room where he picked up his own 9mm. Baretta 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. (Report & 7.F, 22 R. 930; TR 3053.)

The following paragraph was excluded by the district court as being irrelevant:

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. (Report & 7.G, 22 R. 931; Amended Order, 22 R. 942, 944.)

Counsel explained that the above statement was relevant to explain Mr. Castillo's actions set forth in the following paragraph which was admitted into evidence:

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 AFT Agent on the chapel roof. He then observed four AFT Agents, 3 men and 1 black female approach to remove another agent. CASTILLO stated that he never aimed his rifle at these agents. (Report & 7.J, 22 R. 931; TR 3055-57.)

In response to counsel's statement that seeing Winston shot dead through the head was relevant to Castillo picking up the rifle in the kitchen, the court stated: "I disagree. Next item?" (TR 3059.)

The following paragraph was excluded by the court as "a self-serving inculpatory statement that does not contradict, explain, or qualify the rest of the statement":

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 this room fired a round. CASTILLO claims that he doesn't know who fired a weapon inside. (Report & 7.H, 22 R. 931; Amended Order, 22 R. 943.)

As counsel pointed out, that statement was relevant to the charges and explained and qualified the evidence, such as the statement in the previous paragraph (7.F) that Castillo picked up his own 9mm Beretta handgun. (TR 3058-59; see also 3054.) The judge stated that "while it is relevant, it doesn't explain or clarify anything." (TR 3059; see also 3094.)

The court allowed admission of the statement that "CASTILLO did state that during the standoff he was assigned guard duty at the chapel . . . ." (Report & 7.K, 22 R. 931; TR 3057, 3098.) The following statement was admitted:

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. (Report & 8, 22 R. 931; TR 3057.)

However, the court excluded the following statement which would excite any normal human to exercise the first law of nature, self defense:

CASTILLO states that he heard that Winstom, HIPSMAN, Peter GENT, Perry JONES, and Jaydean WENDEL had been killed. That WENDEL was asleep in bed when she was shot. That GENT had been killed by the helicopters and JONES had been shot in the legs and stomach. That the dead had been taken to the bunker area because they started to smell bad. (Report & 10, 22 R. 932.)

The court excluded this as "inadmissible hearsay that does not qualify or explain the subject matter of the portion offered by the Government." (Amended Order, 22 R. 942.) As counsel noted, this would have explained why Mr. Castillo stood guard and his other actions. The court's only comment was: "I disagree with that." (TR 3061-62.)

The following two statements follow one another in the Report, but the court excluded the first sentence, which was exculpatory, and admitted the remainder, which was not:

CASTILLO states that he never received firearms training by anybody, but did shoot his weapon 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.

CASTILLO states that there was a lot of ammo kept in the compound and he personally observed one or two grenades at one time. (Report & 11, 12, 22 R. 932; Amended Order, 22 R. 943.)

The court excluded the last statement in the Report as irrelevant: "CASTILLO's duties at the compound were to help construct the tornado shelter, play drums, and study the Bible." (Report & 17, 22 R. 932; Amended Order, 22 R. 942.) Counsel's remark that "this counters the Government's impression that he was there as a part of this conspiracy and one of the--" was cut short by the judge, who stated that "we don't allow inadmissible hearsay to counter an impression that's another hearsay statement that was offered as an admission. That doesn't clarify or explain anything." (TR 3062.)

The above is a classic example of what Rule 106 seeks to avoid. Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 171 (1988) explained the purpose of the rule as follows:

The common-law "rule of completeness," which underlies Federal Rule of Evidence 106, was designed to prevent exactly the type of prejudice of which Rainey complains. In its aspect relevant to this litigation, the rule of completeness was stated succinctly by Wigmore: "[T]he opponent, against whom a part of an utterance has been put in, may in his turn complete it by putting in the remainder, in order to secure for the tribunal a complete understanding of the total tenor and effect of the utterance."

This was a "concern that the court not be misled because portions of a statement are taken out of context . . . ." Id. n. 14. The intent of Rule 106 is as follows:

When one party has made use of a portion of a document, such that misunderstanding or distortion can be averted only through presentation of another portion, the material required for completeness is ipso facto relevant and therefore admissible under Rules 401 and 402. The District Court's refusal to admit the proffered completion evidence was a clear abuse of discretion. Id. at 172.

United States v. Walker, 652 F.2d 708, 713 (7th Cir. 1981) (en banc) held that it was reversible not to admit the entire statement into evidence. The court noted:

The Advisory Committee's Note indicates that Rule 106 is primarily designed to affect the order of proof. "The rule is based on two considerations. The first is the misleading impression created by taking matters out of context. The second is the inadequacy of repair work when delayed to a point later in the trial." Fed.R.Evid. 106, Advisory Committees' Note. Id.

Walker further explains in regard to criminal cases where the right not to testify exists:

In criminal cases where the defendant elects not to testify, as in the present case, more is at stake than the order of proof. If the Government is not required to submit all relevant portions of prior testimony which further explain selected parts which the Government has offered, the excluded portions may never be admitted. Thus there may be no "repair work" which could remedy the unfairness of a selective presentation later in the trial of such a case. While certainly not as egregious, the situation at hand does bear similarity to "[f]orcing the defendant to take the stand in order to introduce the omitted exculpatory portions of [a] confession [which] is a denial of his right against self-incrimination." . . . The admitted testimony in this case cannot properly be characterized as a confession. It contains no admission of guilt and, since most of the admitted testimony was excerpted from Walker's direct examination, it naturally contains statements favorable to Walker. Nonetheless, the Government's incomplete presentation may have painted a distorted picture of Walker's prior testimony which he was powerless to remedy without taking the stand. Id. at 713.

In Walker, the government read 14 out of 28 pages into evidence. The court noted:

Forcing the Government to include the remainder would not have seriously disrupted the prosecution's case. Most importantly, it is axiomatic that the Government has a duty to conduct a fair trial. As this court admonished in oral argument, the Government's efforts to execute this obligation should be at least as active as its zeal to secure convictions.

The potential unfairness to the defendant, by contrast, was substantial. Because Walker chose not to testify at the second trial, the Government's selective presentation of his prior testimony resulted in the total exclusion of Walker's testimony explaining the parts admitted, not just a delay in the introduction of the remaining parts. This result penalizes Walker for failing to testify at his second trial. Id. at 714.

Walker held the following, which is directly instructive in the case at bar:

Because the evidence in this case is close and often conflicting, we cannot be assured that the error in excluding portions of Walker's prior testimony, which should in fairness have been admitted under Rule 106, had at most only a slight effect upon the jury. When the Government's case involves close factual issues and its proof of an element of the crimes alleged leaves room for a reasonable inference inconsistent with guilt, we will scrutinize claimed error with particular care. Error which may be deemed relatively minor in other circumstances may reach prejudicial proportions in a close factual case such as this. Id. at 715.

United States v. Marin, 669 F.2d 73, 84 (2d Cir. 1982) states about Rule 106: "We have interpreted this Rule to require that a statement be admitted in its entirety when this is necessary to explain the admitted portion, to place it in context, or to avoid misleading the trier of fact . . . ." Marin further states (id. at 85 n. 6):

When the government offers in evidence a defendant's confession and in confessing the defendant has also made exculpatory statements that the government seeks to omit, the defendant's Fifth Amendment rights may be implicated. In such circumstances the Seventh Circuit has stated that the Fifth Amendment right to remain silent is violated when the omission "paint[s] a distorted picture . . . which [the defendant is] powerless to remedy without taking the stand." United States v. Walker, supra, 652 F.2d at 713, and results in "substantial" prejudice to the defendant. Id. at 714. See Burns v. Beto, 371 F.2d 598, 602 (5th Cir. 1966) (dictum) . . . .

The Fifth Circuit opinion in Burns cited above involved a murder prosecution in which a confession was introduced; exculpatory statements supporting self defense were omitted. The defense argued that defendant "was forced to take the stand to testify to the omitted exculpatory portions of the confession. If that is true, the contention of a denial of due process would indeed be of great weight." Id. at 602. However, the court pointed out that the rules of procedure did provide that the exculpatory statements were admissible, so that due process was not denied. Id.

The Walker rationale was also adopted in United States v. Soures, 736 F.2d 87, 91 (3d Cir. 1984), cert. denied 469 U.S. 1161 (1985), which held that, under the doctrine of completeness, a writing "required to be read if it is necessary to (1) explain the admitted portion, (2) place the admitted portion in context, (3) avoid misleading the trier of fact, of (4) insure a fair and impartial understanding."

United States v. Sutton, 801 F.2d 1346, 1369 n.18 (D.C. Cir. 1986) agreed with the following:

Professors Wright and Graham assert: No self-respecting judge would permit a party to manipulate the rules of evidence to put on a case that looked like an advertisement for a bad movie -- bits and pieces taken out of critical context to create a misleading impression of what was really said. Id. at 1369 n. 18.

Sutton held as follows:

The excluded statements would have partially rebutted the government's use of the recordings, and were relevant to Sucher's defense. Since this was a criminal case Sucher had a constitutional right not to testify, and it was thus necessary for Sucher to rebut the government's inference with the excluded portions of these recordings. . . . Under our analysis of the Federal Rule of Evidence 106, Sucher should have been permitted to introduce these four portions of the recorded conversations with Peacock if considerations of "fairness" justified contemporaneous admission and consideration. Id. at 1370.

In its Amended Order, Jan. 26, 1994, at 2 (22 R. 935), the court acknowledged "the misleading impression created by taking matters out of context" and "the inadequacy of the repair work when delayed to a point later in trial." Id., citing Walker, 652 F.2d at 713. The district court then stated, Amended Order, Jan. 26, 1994, at 3 (22 R. 936), as follows:

Unlike in the Walker case, the present case does not involve prior testimony in an earlier trial which is now being used to implicate the Defendant. Also, this statement is not a confession in the traditional sense because it contains no admissions of guilt. Instead, it is only a recitation of certain statements made by the Defendant which are relevant to issues in this case. Therefore, this Court is not concerned that some heightened degree of scrutiny should be utilized to protect the Defendant's right not to be forced to testify.

However, the distinctions the district court sought to make are present neither in Rule 106 nor in the precedents. The district court simply erred in excluding the statements. Defendant is entitled to a new trial on both counts.

IV. INSUFFICIENT EVIDENCE EXISTS TO SUPPORT EITHER GUILTY VERDICT

A reasonable trier of fact could not have found that Jaime Castillo aided and abetted voluntary manslaughter (Count 2) or that he used or carried a firearm during and in relation to a conspiracy to murder federal officers (Count 3). Nor was there any evidence that he carried a machinegun (Count 3 as amended by the court after the verdict).

The standard of review is set forth in United States v. Straach, 987 F.2d 232, 237 (5th Cir. 1993) (citation omitted) as follows: "[W]e must examine all the evidence and reasonable inferences in the light most favorable to the government and determine whether a reasonable trier of fact could find that the evidence establishes guilt beyond a reasonable doubt."

Very little evidence about Jaime Castillo came out at trial. Castillo's statement after exiting the fire to a Texas Ranger has been analyzed in detail in part III of this brief. Not one iota of evidence is contained therein that he aided and abetted the killing of anyone, nor is there any evidence that he conspired to do so, or that he carried a machinegun. He seems to have been charged simply because he was not killed in the fire.

Long before the raid, Castillo lawfully purchased a pistol from a firearms dealer and completed the federal purchase forms. (TR 4902) This was his only connection with a firearm before the raid. No witness identified Castillo as being in Koresh's inner circle.

Virtually the only other evidence about Castillo is that, during the February 28 raid, he held a rifle and allowed officers to recover one of their wounded. As the testimony shows, his behavior was fully consistent with that of a frightened young man who had seen his friends killed and who wanted no bloodshed.

BATF Agent Bernadette Griffin participated in the raid on February 28, 1993. She testified on direct examination that she exited the cattle trailer, pistol drawn, ran to a mobile home, and then moved to a shed. (TR 2967-69) She assisted Agent Jordan, who was wounded, and fired her pistol. (TR 2969-70)

Griffin then went to the assistance of Agent King, who was also wounded. She left the shed, went to the side of the building, to the back, and around the corner. There she saw a person in the doorway. (TR 2971) There were four agents altogether, and as they walked she kept her eyes on the person in the doorway, who was holding "either a AR-15 or maybe an M-16." (TR 2972) She thought King might be on the roof and was going to stand on an oven but was told by the person in the doorway "that I could not get up there." (TR 2972-73) She identified Jaime Castillo as that person. (TR 2974)

The person then told Griffin, "If you want to get upon the roof of the compound, that we would have to get our own ladder and then come back." (TR 2975) While waiting for one of the agents to get the ladder, Griffin heard a sound from Agent King ("Ken"), who turned out to be on the ground. (TR 2975-76) As they tried to sit him up, "I heard someone--I'm not exactly sure, but someone saying to me to 'bring my black ass back out so that they could see, me,'" after which she went back closer to the building. (TR 2976) She said to the person in the doorway that the agent was in pain and "'we are trying to move him as quick as we can.' And he said, 'Just stand there,' and he aimed in on me . . . ." (TR 2976) Griffin then walked back to King, who the agents took away. (TR 2976)

On cross examination, Agent Griffin clarified that she had been notified that there was a cease-fire when the four agents removed the wounded. (TR 2977-78) The four agents were armed with pistols and one shotgun. (TR 2980-81) She turned her back to the person in the doorway, but was not able to get up on the stove, after which the man suggested that she get a ladder. (TR 2982-83) The man in the doorway never fired at anyone. (TR 2984) There were also two other individuals in the vicinity. (TR 2990)

Agent Griffin again clarified that Castillo, who was wearing no goggles or head gear, did nothing to stop the agents from moving the wounded agent, even though they were in a vulnerable position. (TR 2992-93) Griffin's statement to the Texas Rangers was that the man in the doorway "allowed Agent Bonaventure to go around to the front and get a ladder," and he did not say that she would have to get her own ladder. (TR 2994)

BATF Agent Kenneth Chisholm, one of the above four agents, testified that he focused totally on helping the wounded agent, "moved directly to him," and the man in the doorway did nothing to stop him. (TR 3122) He went looking for a ladder to use for a stretcher. He told the person in the doorway that he need a ladder, and the person responded, "Okay, hurry up." (TR 3123) He found a loading pallet and brought it back, without anyone trying to stop him. (TR (3123-24) While the man at the doorway pointed a weapon at them, he did nothing to stop them. (TR 3124) An ambulance driven by two BATF agents was allowed to come in. (TR 3125)

Victorine Hollingsworth, a resident of Mount Carmel who survived the raid and became a prosecution witness, testified generally about bullets ripping through the building and about agents and residents firing at each other. (TR 4079-4129) At one point in the siege she saw Castillo, who had "a belt with a gun." (TR 4131)

Kathryn Schroeder, another resident of Mount Carmel who survived the raid and became a prosecution witness in exchange for a plea agreement (TR 4543), testified that the conflict began when men in dark clothes ran up the walkway with rifles and "almost immediately, I heard shots." (TR 4462) Bullets came in her window and she and her children hit the floor. (TR 4464) She only saw "ATF" on the backs of their jackets as they walked away. (TR 4468) She testified about the wounded, the dying, and the dead. (TR 4476-78) She saw one woman dead on her top bunk. (TR 4490)

This was the context in which Schroeder testified that she organized the distribution of ammunition to some residents. (TR 4491) Unlike others, Jaime Castillo was not receptive: "He had an AK-47 and he was supposed to have a certain number of mag[azine]s, and he didn't have that many. And I was giving him more and telling him he needed more, and . . . he said, 'Well, I don't want more, I don't want any more than what I've got.'" (TR 4500) She did not know whether Castillo had a fully automatic or a semiautomatic AK-47. (TR 4501)

As the siege progressed, residents were assigned watch positions. Schroeder testified that her responsibility was "to protect my life, the lives of my friends and not let them into the building." (TR 4512) Jaime Castillo's watch position was his room, next to Schroeder's. (TR 4514)

After the February 28 raid, Schroeder collected accounts of the event from residents. Castillo "gave me a statement of the activities at the front door, on what David had said, and that he went back to his room, I believe. . . . I don't remember him saying, 'I shot at somebody,' in particular, but, yes, he had a gun." (TR 4516)

Marjorie Thomas, a former resident who had third-degree burns over 51% of her body, testified by video deposition. (Trans. of Video Deposition at 21.) She remembered that on February 28 three helicopters began approaching the house, and then suddenly "a bullet [was] coming--which came through the window and shattered the blinds. . . . We moved from the window and dived to the floor on hearing the bullets flying over our heads." Id. at 31. She believed that she and the other women, children and men were in danger of being killed. Id. at 88.

Thomas recalled hearing three persons discuss having shot someone. Id. at 50-51. However, "Jaime" did not claim to have shot anyone. Id. at 51. She saw Jaime with a gun, but never saw him fire it. Id. at 37, 106. She never heard Castillo discuss any agreement to harm federal agents. Id. at 107.

The above is all of the relevant testimony concerning Jaime Castillo. There was not one shred of evidence that he aided and abetted voluntary manslaughter (Count 2). There was not one shred of evidence that he carried a firearm during and in relation to a conspiracy to murder federal officers, or that he was even a member of, knew of, or agreed to join such a conspiracy (Count 3). Nor was there any evidence that he ever used or carried a machinegun (Count 3 as amended by the district court).

The evidence shows only that Jaime Castillo, after a fusillade of bullets began flying, got a rifle and stood, in full view of the agents, at a doorway. By standing in the doorway, Castillo exposed himself to being shot and killed by the agents. He let his presence be known and talked to at least one agent, thereby showing his good faith effort to have peace and allow the wounded to be treated. He later stood watch from his room and refused more ammunition magazines. These are not the actions of a person carrying a firearm in a murder conspiracy or of a person aiding or abetting manslaughter.

Jaime Castillo's actions were passive, and by any account were fully consistent with what Thomas Hobbes in the Leviathan called "the summe of the Right of Nature," which is, "by all means we can, to defend our selves." "A man cannot lay down the right of resisting them, that assault him by force, to take away his life . . . ." Hobbes, Leviathan 88-89 (1964). Fearful of his life being taken, Castillo did no more than to arm himself without, for aught it appears, ever firing a shot.

Accordingly, a rational trier of fact could not have found Castillo guilty of Counts 2 or 3, and those convictions should be set aside. Even if there was sufficient evidence to convict for Count 3, there was no evidence that Castillo carried a machinegun, and thus his 30-year sentence pursuant to the judge's amendment of Count 3 should be vacated.

V. BY DISMISSING COUNT 3, PUBLISHING THE VERDICT,

AND THEN DISMISSING THE JURY, THE COURT TOOK AWAY

DEFENDANT'S OPPORTUNITY TO POLL THE JURY AS TO COUNT 3

After the jury communicated to the judge that it voted to acquit defendant of Count 1 but guilty of Count 3, the district court dismissed Count 3. The verdict was then published and the jury was dismissed. The judge then reinstated Count 3. This violated defendant's right and opportunity to poll the jury as to Count 3. This is a legal issue which this Court reviews de novo. United States v. Headrick, 963 F.2d 777, 779 (5th Cir. 1992).

Federal Rule of Criminal Procedure 31(d) provides:

When a verdict is returned and before it is recorded the jury shall be polled at the request of any party or upon the court's own motion. If upon the poll there is not unanimous concurrence, the jury may be directed to retire for further deliberations or may be discharged.

This, of course, gives the court the above two options when it discovers, upon polling the jury, that a juror dissents from the verdict. United States v. Deerman, 837 F.2d 684, 688 (5th Cir. 1988), cert. denied 488 U.S. 856 (1988). United States v. Edwards, 469 F.2d 1362, 1366 (5th Cir. 1972) explains:

Fed.R.Crim.P. 31(d) establishes an absolute right to have the jury polled. The object of a poll is to give each juror an opportunity, before the verdict is recorded, to declare in open court his assent to the verdict which the foreman has returned and thus to enable the court and parties "to ascertain for a certainty that each of the jurors approves of the verdict as returned." . . . In this case, the poll indicated that at least one juror was "still in doubt."

The polling of the jury helps ensure that the verdict is unanimous, and even then the poll may be questioned. Fox v. United States, 417 F.2d 84, 89 (5th Cir. 1969) noted the following:

The verdict in a criminal case must be unanimous or it constitutes no verdict at all. Rule 31, Fed.R.Crim.P. The affidavits of Larkin and the four other jurors, we feel, demonstrate clearly that there was never any unanimity expressed in open court in the poll of the jury and that the verdict purportedly returned in open court was not the verdict of each of the twelve jurors.

United States v. F.J. Vollmer & Co., Inc., 1 F.3d 1511, 1522-23 (7th Cir. 1993), cert. denied 126 L.Ed.2d 655 (1994), reversed a conspiracy conviction related to matters involving the Gun Control Act because the court did not, pursuant to defendant's motion, poll the jury. The court stated:

A defendant has an "absolute right" to poll the jury to ensure the unanimity of the verdict against him. Mackett v. United States, 90 F.2d 462, 466 (7th Cir. 1937). . . . The right to poll the jury is a substantial right. . . . Failure to poll the jury upon a timely request is "per se error requiring reversal." Government of Virgin Islands v. Hercules, 875 F.2d 414, 418 (3rd Cir. 1989). (1 F.3d at 1522.)

In Vollmer, defendant made a motion to poll the jury and a motion for acquittal. The district court reserved ruling on the motion for acquittal. "Immediately after the reservation of ruling, the court dismissed the jury." Id. at 1522. That made it impossible to poll the jury:

The very next thing the district court did after reserving ruling was dismiss the jury. The record indicates no opportunity for F.J. Vollmer to pursue its motion. . . . Because the motion was timely and defendants enjoy an absolute "right" to poll the jury . . . unless it has been expressly waived," Mackett v. United States, 90 F.2d at 465, we must reverse F.J. Vollmer's conviction for conspiracy to defraud the United States and remand for a new trial. (1 F.3d at 1523.)

The trial transcript reflects that the court dismissed Count 3 and then had the jury verdict read in open court. Defendants had no opportunity or even reason to poll the jury as to Count 3, since the judge said it was dismissed. Later, the court reinstated Count 3, making it impossible to poll the jury as to that count.

On February 26, 1994, the court brought in the jury, after which the presiding juror confirmed that a unanimous verdict had been reached, and handed it to the bailiff. (TR 7399-7400) The court then asked counsel to approach the bench, where the following transpired:

THE COURT: Each of your clients, and both of your clients have been found guilty of the firearms charge in Count Three, but not guilty of the conspiracy. The first element of the firearms charge is that they find the Defendant guilty of the conspiracy.

MR. JAHN: I don't see how the Court can accept that verdict.

THE COURT: Do I send them back to reconsider their verdict? . . .

MR. ROSEN: I ask that you accept that as a verdict of not guilty to Number Three. They have to find guilty to Number One.

THE COURT: That's correct.

MR. ROSEN: They have found not guilty to Number One, there's no way they can find guilty to Number Three.

THE COURT: That's correct.

MR. JAHN: It seems logical, since that's their verdict, they have to go back and resolve it.

MR. ROSEN: There's not anything to resolve. . . .

MR. KEARNEY: I think the Court has no other choice than a verdict of not guilty.

MR. TINKER: They's already found not guilty to the conspiracy, there's no way that you can send them back and they can change that action.

THE COURT: That's true. . . . (TR 7400-01) Emphasis added.)

The court noted the basis of its ruling by referring to the two elements of the jury charge: "The first element, that you have found the Defendant guilty of the conspiracy alleged in Count One. The second element is that they used or carried a firearm during the commission of that offense." (TR 7403)

The court clearly ruled the defendants were entitled to a verdict of not guilty. The following further conversation occurred at the bench conference:

MR. JAHN: If you not accept the verdict, you're going to have to re-poll the jury, and they could come back and someone said, "No, that's not my verdict?

MR. KEARNEY: They've made a finding on that issue.

MR. ROSEN: Judge, because the prosecution in their Indictment may have made a mistake or were not careful about it, you have to accept it. The fact is, they do not find guilty of Number Three.

THE COURT: I don't see anyway they can correct their mistake except by a finding of not guilty on Count Three. (TR 7401-02.) (Emphasis added.)

The court then directed the clerk to publish the verdict, which took place. After the reading of the verdict, the court asked: "Does anyone desire the jury being polled? I take it not." The court then discharged the jury. (TR 7407)

After the jury left, both counsel and court confirmed their understanding that Count 3 stood dismissed and that the conviction was only on Count 2:

MR. KEARNEY: Also, as to Mr. Castillo, Your Honor, we would ask, since he has been found guilty of the lesser charge, that you consider bond pending sentencing on him.

Also, Judge, I don't know -- is there going to be some further action as to the finding on Count Three?

THE COURT: I'll enter a written order. . . .

THE COURT: The guilty finding as to Count Three will have to be set aside, because, of necessity, the jury could not find a Defendant guilty of that offense without first having found 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 seems 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. (TR 7409-10)

Pursuant to its understanding that Count Three was dismissed, on February 28, 1994 the government filed its "Motion for the United States to Reinstate Jury's Guilty Verdicts on Count Three of the Indictment." (23 R. 1280.) The motion "requests that the Court reconsider its decision to set aside the jury's guilty verdicts on Count Three of the Indictment which the Court announced in open Court upon receipt of the verdict . . . ."

Defendant Castillo opposed the government's motion to reinstate, arguing that "the Court's action in setting aside the government's verdict as to Count Three was proper in all respects." (23 R. 1290.)

The court responded with its Memorandum and Order of March 9, 1994. (23 R. 1297, in RE tab 9.) The court ignored its ruling when the jury returned its verdicts but before the verdicts were published, and characterized its statement after the jury was discharged was "not intend[ing] to set the verdict on Count Three aside at that time. Rather the Court always spoke prospectively, noting that it 'will' set the verdict aside in a written order." Id. at 1298. That simply was not what the court actually said, nor was it what counsel for the government or the defendants understood, as the transcript and the government's motion to "reinstate" the verdicts make clear. Indeed, the court concluded, "ORDERED that the Motion for the United States to Reinstate Jury's Guilty Verdicts on Count Three of the indictment is GRANTED." Id. at 1307 (emphasis added).

In sum, the court set aside Count 3 before the jury verdict was published. This effectively took away defendant's option to poll the jury on that count, without which the conviction cannot stand.

VI. SENTENCING ERRORS

The court misapplied the Sentencing Guidelines and made factual errors in its sentencing findings. "We review the district court's interpretation of . . . the Guidelines de novo, but its application of the Guidelines to the facts for clear error." United States v. Headrick, 963 F.2d 777, 779 (5th Cir. 1992).

The district court adopted the factual findings and guideline application in the presentence report as supplemented except that the court raised the offense level by two for obstruction of justice. The total offense level was set at 30. (25 R. 1621, in RE tab 6.)

The district court made several factual errors in its Sentencing Findings and Opinion filed on June 21, 1994 (see RE tab 12.). It asserted that Castillo and the other defendants "engaged in a conspiracy to cause the deaths of federal agents" (25 R. 1592), yet the jury acquitted them of Count 1, which made that very allegation. It asserted that "there was credible evidence that . . . Castillo actually possessed an enhanced weapon." (25 R. 1593) No such evidence existed.

The district court asserted the existence of "a literal fortress, manned by each of the Defendants convicted on this count" (using a firearm) and asserted that "each had actual or constructive possession of the numerous fully automatic weapons . . . ." (25 R. 1596) No such evidence exists as to Castillo. The court asserted that the use of full automatics "was foreseeable and foreseen by all of the Defendants, who were taught, who planned, and who practiced for just such an outcome." (25 R. 1598) No evidence exists that Castillo knew about or participated in any such scheme.

The district court, pursuant to U.S.S.G. '3C1.1, added two points to the offense level for obstruction of justice. (25 R. 1604) The court found that "each of the Defendants, for 51 days, conspired to prevent lawful authorities from executing a lawful search warrant and did so by threat of force . . . ." (25 R. 1605) No such evidence exists as to Castillo.

The court added a three level increase in the Official Victim provision of U.S.S.G. 3A1.2, based on the court's erroneous assertion that the defendants were guilty of conspiracy to murder federal officers (25 R. 1605), for which the jury acquitted defendants by finding them not guilty of Count 1.

The court rejected defendants' request, under U.S.S.G. 3E1.1, for a three point reduction in the offense level for acceptance of responsibility. (25 R. 1606) Yet Castillo was correct in going to trial, for he was acquitted of Counts 1 and 2 (but convicted of a lesser included offense under Count 2). The court ignored the fact that Castillo gave a detailed statement to the Texas Rangers just two hours after escaping the fire. '3E1.1 provides that the offense shall be decreased by a level of 1 if the defendant "timely provid[es] complete information to the government concerning his own involvement in the offense . . . ."

Should the Count Two conviction be affirmed, the case should be remanded to correct the above sentencing errors.

VII. THE SENTENCE REQUIRING RESTITUTION FROM

WRITINGS AND FILMS VIOLATES THE FIRST AMENDMENT

The district court ordered defendant to pay restitution in the amount of $1,131,687. (25 R. 1619-20, in RE tab 6.) Restitution is limited to proceeds received by defendant from any book or film contracts concerning the crimes for which he was convicted. (Sentencing Findings and Opinion, 25 R. 1590, in RE tab 12.) This violates the rights to free speech and press guaranteed by the First Amendment. This is a legal issue which this Court reviews de novo. United States v. Headrick, 963 F.2d 777, 779 (5th Cir. 1992).

The restitution order violates the right to free speech and press as exposited in Simon & Schuster, Inc. v. Members of the New York State Crime Board, 116 L.Ed2d 476 (1991), which declared as contrary to the First Amendment a statute requiring that a convicted person's income from books describing a crime be paid to victims. "A statute is presumptively inconsistent with the First Amendment if it imposes a financial burden on speakers because of the content of their speech." Id. at 486-87. The Court added:

The Son of Sam law is such a content-based statute. It singles out income derived from expressive activity for a burden the State places on no other income, and it is directed only at works with a specified content. Id. at 487.

Such is the case here. The restitution order affects only works with a specified content, and thus violates the First Amendment.

The district court agreed that 18 U.S.C. '3681, which provides for a forfeiture of proceeds received from movie and book contract rights, is unconstitutional under Simon & Schuster. The court nonetheless asserted that a restitution order doing the same thing would be constitutional. (25 R. 1590.) However, the court made no attempt to explain the distinction, and there is none under the First Amendment. The restitution order is void.

VIII. ARGUMENTS AND ISSUES RAISED BY OTHER APPELLANTS

Defendant Castillo hereby adopts by reference all of grounds of error and arguments applicable to him raised in the briefs filed by the other appellants in this appeal.

CONCLUSION

The judgment should be reversed and defendant should be acquitted on both counts. Alternatively, the case should be remanded to the district court and defendant should be given a new trial on Count 2 (aiding and abetting manslaughter) and/or Count 3 (carrying firearm). If Count 2 is not set aside or remanded for retrial, the sentence should be reduced to a lower total offense level. If Count 3 is not set aside or remanded for retrial, the sentence should be reduced from thirty years to five years.

Respectfully submitted,

Jaime Castillo

By counsel

Stephen P. Halbrook

10560 Main St., Suite 404

Fairfax, Virginia 22030

(703) 352-7276

Counsel for Appellant Castillo

CERTIFICATE OF SERVICE

I hereby certify that two copies of the brief and one copy of the record excerpts were mailed, first class postage prepaid, this

5th day of May, 1995 to the following:

LeRoy Morgan Jahn Richard G. Ferguson

Assistant U.S. Attorney 1512 Lake Air Drive

601 N.W. Loop 410 Suite 118

Suite 600 P.O. Box 1157

San Antonio, TX 78216 Waco, TX 76710

Stanley Rentz Steven Rosen

506 Franklin Avenue 440 Louisiana

Waco, TX 76701 Suite 2100

Houston, TX 77002

John Carroll Mike DeGeurin

310 S. St. Mary's Street 909 Fannin, Ste. 590

1515 Tower Life Bldg. Houston, TX 77010

San Antonio, TX 78205

Stephen P. Halbrook

ADDENDUM

18 U.S.C. '924(c) provides in pertinent part:

(1) Whoever, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime which provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which he may be prosecuted in a court of the United States, uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime, be sentenced to imprisonment for five years, and if the firearm is a short-barreled rife, short-barreled shotgun to imprisonment for ten years, and if the firearm is a machinegun, or a destructive device, or is equipped with a firearm silencer or firearm muffler, to imprisonment for thirty years. In the case of his second or subsequent conviction under this subsection, such person shall be sentenced to imprisonment for twenty years, and if the firearm is a machinegun, or a destructive device, or is equipped with a firearms silencer or firearm muffler, to life imprisonment without release. Notwithstanding any other provision of law, the court shall not place on probation or suspend the sentence of any person convicted of a violation of this subsection, nor shall the term of imprisonment imposed under this subsection run concurrently with any other term of imprisonment including that imposed for the crime of violence or drug trafficking crime in which the firearm was used or carried. No person sentenced under this subsection shall be eligible for parole during the term of imprisonment imposed herein.

* * * *

(3) For purposes of this subsection the term "crime of violence" means an offense that is a felony and-

(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.