From: [c h risw] at [bga.com] (chris walker)
Newsgroups: talk.politics.guns
Subject: Waco: Defense Response to Reinstatement of Verdict
Date: 28 Jul 1994 17:49:52 -0500
* Origin: The Rock BBS--Religion, Debate, Literature. (1:387/31)
Defense Response to Motion to Reinstate of Branch Davidian verdicts.
> IN THE UNITED STATES DISTRICT COURT
> FOR THE WESTERN DISTRICT OF TEXAS
> WACO DIVISION
>
> {not filed}
>
>UNITED STATES OF AMERICA :
>
>v. : Criminal No. W-93-CR-046(12)
>
>RUTH OTTMAN RIDDLE (12) :
>
>
> DEFENDANT'S RESPONSE TO GOVERNMENT'S
> MOTION TO REINSTATE GUILTY VERDICTS
> (WITH AUTHORITIES)
>
> TO WALTER S. SMITH, JR., UNITED STATES DISTRICT JUDGE:
>
> COMES NOW Defendant Ruth Ottman Riddle, by and through her
>undersigned counsel, and files this response to the Motion for
>the United States to Reinstate Jury's Guilty Verdicts on Count
>Three of the Indictment. Defendant responds thusly:
>
> I.
>
> On February 26, 1994, the jury in this case found all eleven
>defendants not guilty on Count One, conspiracy to murder federal
>agents, and Count two, murder of federal agents. The jury found
>seven defendants, including Ruth Riddle, guilty on Count three,
>using or carrying a firearm during and in relation to the
>commission of the conspiracy alleged in Count one. The jury
>instructions as to Count three specifically required the jury
>to find that a defendant had committed the crime of conspiracy
>alleged in Count one before it could find a defendant guilty of
>Count three.
>
> II.
>
> Concerned by the inconsistent verdicts in Counts one and three,
>the Court asked counsel for the affected defendants to approach
>the bench. a bench conference ensued,
page 1
>which has been transcribed, and which Defendant will refer to
>here as "TR." At the bench conference, the Government urged the
>Court _not_ to accept the verdict in Count three, TR.-4; and
>asked the Court to send the jury back to "resolve" the conflict.
>TR.-5. The Court agreed with counsel for Defendant Brad Branch
>that the jury could not change its verdict on Count one. _Id_.
>The Court further opined that "I don't see anyway they can
>correct their mistake except by a finding of not guilty on Count
>three." TR.-6.
>
> Of equal significance, the Court realized that jeopardy had not
>terminated since it had not yet accepted the verdict. TR.-6 (The
>Court said jeopardy had not "attached" but obviously meant that
>the defendants were still in jeopardy until there was a final
>verdict). The transcript of the bench conference ends with Mr.
>Johnston requesting that the jury be reinstructed as to Count
>three and Mr. Jahn saying "Send them back." TR.-7
>
> III.
>
> On February 28, 1994, the Government filed a motion requesting
>relief it never asked for at trial _and in fact specifically
>objected to_: namely, that the Court accept the verdict on Count
>three. Defendant maintains that it is unnecessary and legally
>improper to consider the merits of the Government's motion as far
>as the propriety of accepting the inconsistent verdicts here. The
>Government's motion should be rejected out-of-hand, for three
>reasons.
>
> A.
>
> The first reason is self-evident from the record. Not only was
>the Government "unable at [the time of the trial] to articulate a
>legal rationale not to set the verdict in Count three aside,"
>Court's order of March 1, 1994, but the Government in fact did
>not want the
page 2
>verdict to be accepted. Instead, what the Government wanted was
>for the jury to reconsider the conspiracy issue in Count one,
>hoping, of course, for a guilty verdict on _both_ Count one and
>Count three. Never did the Government say, as they now want to
>say in an eleventh-hour attempt to save an unsuccessful
>prosecution, that the Government must accept the verdict in Count
>one, and the Defendant must accept it on Count three.
>
> Under Rule 51 of the Federal Rules of Criminal Procedure,
>however, a party must "at the time the ruling or order of the
>court is made or sought, make known to the court the action which
>that party desires the court to take or that party's objection to
>the action of the court and the grounds therefor. . . ." The
>United States of America is not above the law, and Rule 51
>applies just as equally to it as to a criminal defendant. In this
>case, not only did the objection to the Court's action come one
>and one-half _days_ after trial, _cf. United States v. Pool_, 660
>F.2d 547 (5th Cir. 1981)(Government objection to defense closing
>argument timely when issue raised before and after, but not
>during, argument), but the Government now asks for relief that
>Mr. Jahn specifically refused that the time of trial.
>
> If, however, the shoe were on the other foot, and Defendants had
>asked for the jury to reconsider its verdicts, and the jury had
>then returned guilty verdicts on Counts one and three, would the
>Defendants be heard thirty-six hours later to request that the
>original verdicts be reinstated, since inconsistent verdicts are
>not such a bad thing after all? Of course not. If a party wants a
>certain type of relief, the party must ask for it in a timely
>fashion, and cannot complain in hindsight, whether its original
>failure was due
page 3
>to ignorance or trial strategy. The Government clearly waived its
>right to the relief it now seeks, and to even consider the
>Government's motion is an affront not only to Rule 51 but to Due
>Process. Moreover, its action smacks of vindictiveness.
>
> B.
>
> Defendant also contends that reinstatement of the verdict is
>barred by the Double Jeopardy Clause. It is settled that a
>"judgment of acquittal, however erroneous, bars further
>prosecution" on an offense. _Sanabria v. United States_, 437 U.S.
>54,69 (1978)(Emphasis added). It is true, as the Government
>maintains, that in the case of a _post-verdict_ judgment or
>acquittal, Double Jeopardy is no bar to appellate review.
>
> In this case, however, the record 1 reflects that the Court had
>decided to set aside the verdicts on Count three _before_ they
>were final and before jeopardy had terminated. _See_ _United
>States v. White_, 972 F.2d 590, 595 (5th Cir. 1992) (Verdict not
>final until result announced in open court and opportunity for
>jury to be polled). The Court's decision at the bench conference
>is clear from its later remarks to counsel for Defendant Castillo
>that "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." TR.-10 (Emphasis added).
>
>---------------------
>1 Defendant does not believe that the transcript completely
>reflects what the Court said at the bench conference. Counsel for
>Defendant Riddle, as well as counsel for other defendants,
>recollect that the Court said it was setting aside the verdicts.
>Pursuant to Rule 10(e) of the Federal Rules of Appellate
>Procedure, Defendant requests a hearing in order for her counsel
>to testify under oath as to what occurred at the bench
>conference, so that the record may speak the truth.
page 4
> In short, the Court's decision at the bench effectively amounted
>to a judgment of acquittal _before_ there was any verdict. The
>fact that the Court couched its decision in terms of "setting
>aside the verdict" is not important. As the Supreme Court has
>said, "we have emphasized that what constitutes an `acquittal' is
>not to be controlled by the form of the judge's action. . .
>Rather, we must determine whether the ruling of the judge,
>_whatever its label_, actually represents a resolution, _correct
>or not_, of some or all of the factual elements of the offense
>charged." _United States v. Martin Linen Supply Co., 430
>U.S. 564, 571 (Emphasis added; footnote omitted). In agreeing
>with defense counsel that the jury's verdict on Count one
>necessarily meant that the "first element" of Count three has
>not been satisfied, TR.-4, the Court resolved the question of
>legal guilt before the verdict was final and before jeopardy
>terminated; there is no verdict of guilty to reinstate,
>and the Court's decision is not reviewable.
>
> C.
>
> Finally, principles of fairness implicit in the Due Process
>Clause bar granting the Government's motion. To allow the
>reinstatement sought by the Government would unfairly prejudice
>Ruth Riddle and deny her her right to a fair trial because when
>the Court set aside the "guilty" findings, the defendants no
>longer had any reason to seek further deliberations of the jury
>to obtain "not guilty" findings from the jury on Count three.
>When the Court set aside the "guilty" findings, the defendants
>were ipso facto precluded from asking the Court to order the
>jury to renew deliberations, and thereby avoiding the result the
>Government seeks by its motion to reinstate. It should be
>remembered that at the time of the bench conference, the verdict
>had not yet been published, and so the jury
page 5
>could have been ordered to renew its deliberations. Had the Court
>refused to set aside the "guilty" findings, Ruth Riddle would
>have requested further deliberations by the jury. It is a denial
>of her constitutional right to a fair trial to be placed in a
>position whereby in relying on the Court's ruling, she is
>precluded from taking the necessary remedial action (asking that
>the jury resume deliberations) to avoid the result of a
>subsequent objection to the Court's ruling by the Government.
>
> Submitted with due deference,
>
> [signed]
> ---------------------------
> JOSEPH A. TURNER
> 1504 West Avenue
> Austin, Texas 78701
> (512)474-4892
> (FAX)474-8252
> State Bar No. 20322500
> ATTORNEY FOR DEFENDANT
>
>
> [signed]
> ---------------------------
>
> TERRENCE W. KIRK
> 1504 West Avenue
> Austin, Texas 78701
> (512)474-4892
> (FAX)474-8252
> State Bar No. 11513500
> ATTORNEY FOR DEFENDANT
page 6
> _CERTIFICATE OF SERVICE_
>
> I hereby certify that a true and correct copy of the foregoing
>Defendant's Response to Government's Motion to Reinstate Guilty
>Verdicts (With Authorities) has been furnished by facsimile
>and U.S. first class mail to Mr. W. Ray Jahn, Assistant United
>States Attorney, 700 S. University Parks, Suite 770, P.O. Box
>828, Waco, Texas, 76706, and by U.S. first class mail to all
>defense counsel of record, on this the __4th_ day of March,
>1994.
>
> [signed]
> ---------------------------
>
> JOSEPH A. TURNER