United States v. Gonzales, 110216 FED5, 15-50762

Docket Nº:15-50762
Judge Panel:Before WIENER, CLEMENT, and COSTA, Circuit Judges. EDITH BROWN CLEMENT, Circuit Judge, dissenting as to Part III.A:
Case Date:November 02, 2016
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

UNITED STATES OF AMERICA, Plaintiff - Appellee



No. 15-50762

United States Court of Appeals, Fifth Circuit

November 2, 2016

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

Before WIENER, CLEMENT, and COSTA, Circuit Judges.


Special jury questions, common in civil trials, have long been disfavored in criminal law. That aversion dates back to the pre-Founding common law, which considered special questions to be an intrusion on the jury's prerogative to give an up/down vote on guilt with no explanation. United States v. Desmond, 670 F.2d 414, 416-18 (3d Cir. 1982). So strong was this view that an early twentieth century commentator described it as "one of the most essential features of the right of trial by jury that no jury should be compelled to find any but a general verdict in criminal cases, and the removal of this safeguard would violate its design and destroy its spirit." G. Clemenston, Special Verdicts and Special Findings by Juries 49 (1905), quoted in United States v. Spock, 416 F.2d 165, 181 (1st Cir. 1969).

As criminal law has grown more complex, however, the use of special jury questions has increased. The district court asked them in this case for an understandable reason: to determine whether any findings of guilt on firearm and murder offenses committed in the course of a drug conspiracy were based on a theory of direct liability, aiding and abetting liability, or conspirator liability under Pinkerton v. United States, 328 U.S. 640 (1946). The propriety of asking those questions, to which neither side objected, is not at issue in this appeal. The effect of the jury's answers to those special questions is. We conclude that once asked, the answers to special questions must be considered when evaluating the sufficiency of the evidence. This requires vacating some of the convictions in this case involving a brutal murder committed by a drug trafficking operation because the trial judge denied motions for acquittal by finding the defendants guilty under theories of liability the jury did not adopt.


On May 13, 2014, Sean Lamb was found dead in the front passenger seat of his Ford Expedition in Odessa, Texas. Lamb had been shot ten times from behind his seat at close range with a gun firing nine-millimeter ammunition.

An investigation linked Lamb's death to the drug operation of Ruben Hernandez. Ruben sold cocaine, methamphetamine, and marijuana. Ruben's sister, Liz Hernandez, often stored his drugs at her apartment. In May of 2014, Liz was also helping Ruben distribute them.

On or about May 11, Ruben went to Liz's apartment with a gallon-sized bag of what he said was nine ounces of methamphetamine-more than he typically brought to her home. Johnny San Miguel, Steven Saenz, and Sean Lamb had recently begun living with Liz, 1 and Ruben asked the three men and Liz to help him sell the meth. Ruben divided the drugs, gave each of them a small portion to sell, and, unbeknownst to Liz, left about six ounces of the meth in her purse.

When Ruben returned to Liz's apartment the next morning looking for the drugs he had left in her purse, he and Liz realized that San Miguel, Saenz, and Lamb had stolen the drugs from Liz's purse, taken her truck, and disappeared. Ruben told Liz they needed to find the drugs or his drug bosses might find their mother in Mexico and harm her. After their efforts to recover the drugs failed, Liz enlisted the help of Stacey Louise Castillo. Castillo, who considered herself a "regulator" of sorts and was often hired to find people, agreed to locate the three men and recover the stolen drugs.

On May 13, Liz, Ruben, Castillo, Anthony Gonzales, Ray Olgin, Rudy Paredes, and Noe Galan met at Liz's apartment to discuss how to find the stolen meth. Liz's son, Brian Hernandez, was there as well. Gonzales brought a camouflaged MAC-102 to the meeting; Castillo brought a pink and gray .38 caliber revolver. Castillo told the group she believed Lamb and Saenz were informants and they needed to "hurry up and find them and get rid of them."3

While the group was meeting, Brian received several text messages from Lamb, apologizing for what he, San Miguel, and Saenz had done and asking if he could get his clothes from Liz's apartment. Ruben and Castillo instructed Brian to respond to Lamb's text and arrange a meeting. Lamb agreed to meet and went with two friends to the alley Brian identified as the meeting spot.

As Lamb waited for Brian in the alley, Ruben, Liz, and the others entered suddenly and positioned their vehicles so that Lamb could not escape. After allowing Lamb's two passengers to exit, Liz, Ruben, Galan, and Gonzales jumped into Lamb's Expedition, pushed him into the passenger seat, and began beating him and demanding to know where Saenz and the drugs were.

Screaming for mercy, Lamb told his assailants that Saenz was at the Parkway Inn and he would help them find him. The group left the alley and took Lamb (in his Expedition) to the Parkway Inn, but Saenz was not there. When they began beating Lamb again, he told them Saenz could be at a friend's house. On their way to this next location, Gonzales, Castillo, and Liz took a wrong turn and were separated from the rest of the group. Liz testified that Castillo later received a phone call telling her that Galan had killed Lamb. Ballistics indicated that the shots were fired from directly behind the front passenger seat, which, according to Liz, is where Galan was seated.


The government has never strayed from the position that Galan was the shooter. But it sought to hold all eight of those involved in hunting down Lamb-Liz, Brian, Ruben, Galan, Olgin, Paredes, Castillo, and Gonzales- responsible for the murder, using aiding and abetting and conspirator theories of liability. A grand jury charged them all with: (1) conspiracy to possess with intent to distribute a controlled substance in violation of 21 U.S.C. §§ 846 and 841(a)(1); (2) the "use and carry" of a firearm during and in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1)(A); and (3) murder resulting from the use of a firearm during and in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(j). The two firearm counts asserted aiding and abetting liability under 18 U.S.C. § 2 and conspirator liability under Pinkerton v. United States, 328 U.S. 640 (1946).4

Ruben escaped to Mexico the day after Lamb's murder; he and Galan remain at large. Liz and Brian entered guilty pleas and testified for the government. That left Olgin, Paredes, Castillo, and Gonzales as defendants at the trial. The jury found them guilty on all counts.

The verdict form had more questions than is typical in criminal trials. The defendants requested that the court ask not just the general verdict question of "guilty" or "not guilty" for each count, but also special interrogatories related to Counts Two (the "use and carry" of a firearm charge) and Three (the murder charge). The government did not object to this request. The court asked the special questions to ensure that the jury was unanimous on the theory of liability in light of the multiple theories alleged.[5]

The first two interrogatories related to the "use and carry" firearm charge. Jury Question 1 asked whether each defendant was guilty of the "use and carry" firearm charge based on a theory of personal liability, conspirator's liability, or aiding and abetting. The jury found Olgin and Gonzales guilty under a theory of conspirator's liability, but found Paredes and Castillo guilty under a theory of personal liability. Jury Question 2 asked whether the firearm was brandished, discharged, or neither; for each of the four defendants, the jury marked "brandished."

The second two interrogatories concerned the murder charge. Similar to the first interrogatory, Jury Question 3 asked the jury to determine which of the three theories of liability supported a guilty verdict on the murder charge. The jury answered that Paredes, Castillo, and Gonzales were guilty based on personal liability, whereas Olgin was guilty based on conspirator's liability. Finally, the jury was asked whether the defendants were guilty of first or second degree murder, and the jury found all four guilty of first degree murder.

Paredes, Castillo, and Gonzales moved for judgment of acquittal on all counts, but focused on Counts Two and Three. They argued that there was no evidence to support the jury's finding of "personal liability" on these counts. The district court acknowledged that the evidence showed that Galan, rather than any of the four defendants, shot Lamb...

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