91 F.3d 699 (5th Cir. 1996), 94-50437, United States v. Branch

Docket Nº:94-50437.
Citation:91 F.3d 699
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Brad Eugene BRANCH, Kevin Whitecliff, Jaime Castillo, Renos Lenny Avraam, Paul Fatta and Graeme Leonard Craddock, Defendants-Appellants.
Case Date:August 02, 1996
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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91 F.3d 699 (5th Cir. 1996)

UNITED STATES of America, Plaintiff-Appellee,


Brad Eugene BRANCH, Kevin Whitecliff, Jaime Castillo, Renos

Lenny Avraam, Paul Fatta and Graeme Leonard

Craddock, Defendants-Appellants.

No. 94-50437.

United States Court of Appeals, Fifth Circuit

August 2, 1996

Order Denying Rehearing and Suggestion for Rehearing En Banc Sept. 25, 1996.

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Joseph Charles Wyderko, United States Department of Justice, Criminal Division, Washington, DC, LeRoy Morgan Jahn, W. Ray Jahn, Office of the United States Attorney, San Antonio, TX, for plaintiff-appellee.

Richard Gale Ferguson, Waco, TX, for defendant-appellant Branch.

Steven Rocket Rosen, Houston, TX, for defendant-appellant, Whitecliff.

Stephen P. Halbrook, Fairfax, VA, for defendant-appellant, Castillo.

John F. Carroll, Leon, Amberson and Carroll, San Antonio, TX, for defendant-appellant, Avraam.

Mike J. DeGeurin, Foreman, DeGeurin and Nugent, Houston, TX, for defendant-appellant, Fatta.

George Stanley Rentz, Waco, TX, for defendant-appellant, Craddock.

Appeals from the United States District Court for the Western District of Texas.

Before HIGGINBOTHAM and DUHE, Circuit Judges, and SCHWARZER [*], District Judge.


This is an appeal of six defendants convicted of federal crimes for their role in the dramatic and tragic events at Mount Carmel outside Waco, Texas during the early months of 1993. A firefight erupted when federal agents from the Bureau of Alcohol, Tobacco, and Firearms attempted to execute a search and arrest warrant on February 28, 1993. Four agents and three residents of the compound lost their lives. Each defendant now challenges his conviction and sentence.


The Branch Davidians are a 65-year-old sect originally affiliated with the Seventh Day Adventist Church. Their faith urges a life of Bible study with emphasis on an imminent, apocalyptic confrontation between the Davidians and the "beast". The group's leader, Vernon Howell, instructed members to arm themselves in preparation for the final battle. Howell changed his name to David Koresh in 1990 and preached that "if you can't kill for God, you can't die for God." He told his followers that the "beast" included the U.S. Government and, specifically, the ATF.

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Koresh and other Davidians stockpiled weapons and ammunition. They fortified the compound called Mount Carmel, building a two-foot high concrete barrier and an underground bunker. Koresh used "Bible studies" to instruct the residents in the use of firearms. In short, the Davidians turned Mount Carmel into a small fortress.

The ATF discovered that the Davidians had amassed weapons, including fully automatic machineguns and hand grenades. On February 25, 1993, ATF agents obtained an arrest warrant for Koresh and a search warrant for the Mount Carmel compound.

The ATF decided to execute the search and arrest warrant on February 28, 1993, but, as it was to learn, the element of surprise had been lost. Around 8:00 A.M., an undercover ATF agent, Roberto Rodriguez, visited the Davidian compound and spoke with Koresh. During the conversation, Koresh took a phone call. When he returned, a visibly shaken Koresh told Rodriguez, "Robert, neither the AFT or National Guard will ever get me. They got me once, they'll never get me again." Koresh then walked over to the windows and looked toward the farmhouse used by the undercover ATF agents. He turned to Rodriguez and said, "They're coming, Robert. The time has come." Rodriguez left the compound around 9:00 A.M. and advised the ATF that Koresh had learned of the raid at least forty-five minutes earlier. The ATF decided to proceed with the arrest and search warrants.

When the ATF's decision to continue was made, approximately 115 men, women, and children, ranging in age from 6 months to 70 years, resided at Mount Carmel. The ATF plan called for ATF agents, who were transported to the compound in two cattle trailers, to quickly unload and encircle the compound, while National Guard helicopters conducted a diversionary raid on the rear of the Mount Carmel compound.

The plan quickly went awry. The helicopters did not arrive until after the ATF agents had begun unloading from the cattle trailers. As the agents unloaded, gunfire erupted from the compound. The agents returned fire. In the ensuing gunbattle, four agents and three Davidians were killed. Twenty-two ATF agents and four Davidians were wounded.

The FBI then surrounded the compound, and, for 51 days, law enforcement and the Davidians were at a stand-off. During the stand-off, approximately 30 Davidians left the compound and were taken into custody. On April 19, FBI agents attempted to end the stand-off by flooding the compound with gas, but the Davidians did not leave. Around noon, the Davidians set the compound on fire. Seventy-five of the remaining 84 occupants perished in the blaze.

On August 3, 1993, a grand jury returned a superseding 10-count indictment against twelve of the surviving Davidians. The counts relevant to this appeal are:

Count 1: From on or before February 19, 1992, to April 19, 1993, conspiracy to murder federal officers and employees engaged in the performance of their official duties in violation of 18 U.S.C. § 1117.

Count 2: On or about February 28, 1993, aiding and abetting the murder of four agents of the Bureau of Alcohol, Tobacco & Firearms (ATF) while said agents were engaged in the performance of their official duties, in violation of 18 U.S.C. §§ 1111(a), 1114 and 18 U.S.C. § 2.

Count 3: On or about February 28, 1993, using or carrying of a firearm during and in relation to a crime of violence, to wit, Count 1, in violation of 18 U.S.C. § 924(c)(1).

Count 7: On or about April 19, 1993, knowing and unlawful possession of a firearm, namely an explosive grenade, in violation of 26 U.S.C. § 5861(d).

Count 9: From on or about February 19, 1992 to February 1993, a conspiracy to unlawfully manufacture and possess machineguns in violation of 18 U.S.C. § 371 and 18 U.S.C. § 922(o).

Count 10: In February 1992 to February 19, 1993, aiding and abetting in the unlawful possession of machineguns in violation of 18 U.S.C. §§ 2, 922(o).

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The Government dismissed the charges against one of the twelve Davidians, Kathryn Schroeder, pursuant to a plea bargain. After a jury trial lasting nearly two months, the jury acquitted four of the Davidians on all counts on which they were charged. The jury also acquitted all eleven of the Davidians on Count 1, which alleged a conspiracy to murder federal agents. However, the jury found seven of the Davidians, Renos Avraam, Brad Branch, Jaime Castillo, Graeme Craddock, Livingstone Fagan, Ruth Riddle, and Kevin Whitecliff, guilty on Count 3 for using or carrying a firearm during a crime of violence. The jury acquitted all eleven of the defendants on Count 2 for aiding and abetting the murder of federal agents but convicted Avraam, Branch, Castillo, Fagan, and Whitecliff on the lesser-included offense of aiding and abetting the voluntary manslaughter of federal agents. Finally, the jury convicted Craddock on Count 7 for unlawful possession of a hand grenade and convicted Paul Fatta on Counts 9 and 10 for conspiring to manufacture and possess machineguns and for aiding and abetting the unlawful possession of machineguns, respectively.

The district court sentenced the defendants to prison terms ranging from 15 to 40 years, along with fines and restitution. Six of the eight Davidians are now before us, appealing both their convictions and sentences. They have raised a host of contentions. We first address the constitutionality of Fatta's firearms convictions. We then turn to the arguments concerning the jury instructions and the district court's conduct of the trial. We then address the sufficiency of the evidence. Finally, we review the sentences imposed by the district court.


The jury convicted Fatta of conspiring to unlawfully manufacture and possess machineguns (Count 9) and aiding and abetting the unlawful possession of machineguns (Count 10), both in violation of 18 U.S.C. § 922(o ). On the eve of trial, Fatta moved to dismiss the indictment on both counts. He argued that § 922(o ) exceeded Congress' powers under the Commerce Clause. The district court disagreed, noting that several other circuits had upheld the constitutionality of § 922(o ). See United States v. Hale, 978 F.2d 1016 (8th Cir.1992), cert. denied, 507 U.S. 997, 113 S.Ct. 1614, 123 L.Ed.2d 174 (1993); United States v. Evans, 928 F.2d 858 (9th Cir.1991). We review de novo the district court's ruling.

18 U.S.C. § 922(o) prohibits, subject to two, narrow exceptions not relevant here, any person from transferring or possessing a machinegun. There is no requirement that the machinegun have been in interstate commerce. Subsequent to the district court's ruling, we held in United States v. Kirk, 70 F.3d 791 (5th Cir.1995), that § 922(o) did not exceed Congress' power under the Commerce Clause. That panel decision has been vacated, and the case is currently pending before the en banc court. 78 F.3d 160 (5th Cir.1996).

The en banc court's resolution of this issue will govern the ultimate validity of Fatta's convictions on Counts 9 and 10. Under pre-Kirk caselaw now binding this panel, we must...

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