United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
May 10, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 05-20430
UNITED STATES OF AMERICA
Plaintiff - Appellant,
versus
TYRONE MAPLETOFT WILLIAMS
Defendant - Appellee.
Appeal from the United States District Court
For the Southern District of Texas
(USDC No. 4:03-CR-221-11)
Before HIGGINBOTHAM, DeMOSS, and OWEN, Circuit Judges.
HIGGINBOTHAM, Circuit Judge:
Returning to this Court for the third time, this case arises
out of an illegal alien smuggling conspiracy that caused the deaths
of nineteen undocumented aliens secreted in the trailer of a
tractor-trailer driven by defendant Tyrone Mapletoft Williams from
Harlingen, Texas, to Victoria, Texas. Five days after receiving
the case at the close of Williams’s trial for various alien
smuggling offenses in violation of 8 U.S.C. § 1324,1 the jury
returned the verdict form with both an entry of “guilty” and an
express statement of “hopeless[] deadlock[]” on Counts 21 through
1
The full text of 8 U.S.C. § 1324 is provided in Appendix A.
58. The government appeals, and we now confront questions relating
to the scope of Williams’s second trial, if any.
I
In the evening of May 13, 2003, Williams and Fatima Holloway,
one of the fourteen individuals charged in the conspiracy, loaded
approximately seventy-four illegal aliens into Williams’s tractor-
trailer. With Williams driving, they departed Harlingen, Texas,
for the 120-mile trip to Robstown, Texas. During the trip the
aliens began banging on the sealed trailer, screaming to be
released due to heat exhaustion and suffocation. Holloway
suggested that Williams turn on the refrigeration unit in the
trailer, but he refused. Shortly after passing a Border Patrol
checkpoint, Williams noticed that the aliens had clawed a hole in
the back door of the trailer and that his tail light was dangling
from the door. Angered, Williams contacted the other individuals
allegedly part of the conspiracy and demanded more money. They
directed Williams to proceed to Houston, Texas, extending the trip
by approximately 210 miles.
Upon reaching Refugio, Texas, Williams backed his trailer into
a dark area and entered a nearby convenience store, where he
purchased four or five small bottles of water. Williams continued
north, stopping next in Victoria, Texas, where he parked the
trailer in a dark field near another convenience store. Williams
made three trips into the store, each time purchasing water. Then,
2
Williams asked Holloway to enter the store to purchase water, which
she did. When Holloway returned to the store a second time, again
to purchase more water, one of the undocumented aliens from
Williams’s trailer ran into the store, shirtless, shouting that
someone was trying to kill him. As Holloway returned to the
trailer, she noticed that the doors were open and that some of the
aliens were walking into a nearby field. Williams grabbed the
water from Holloway, forced her into the cab, and sped away,
abandoning the trailer. Nineteen undocumented aliens died from
dehydration and suffocation.
Williams and the other individuals were charged together in a
sixty-count indictment with various alien smuggling offenses in
violation of 8 U.S.C. § 1324. Count 1 charged Williams and the
others with conspiracy to conceal, harbor, shield from detection,
and transport illegal aliens. Counts 2 through 20 charged
Williams, both as a principal and as an aider and abettor, with
unlawful concealment of illegal aliens.
Counts 21 through 58 are the focal point of this appeal.
Counts 21 through 39 involved aliens that were allegedly injured
during the unlawful transportation. Specifically, Counts 21
through 39 charged that Williams
did knowingly and in reckless disregard of the fact that
the aliens identified in Counts Twenty-One (21) through
Thirty-Nine (39) herein, were aliens who had come to,
entered, and remained in the United States in violation
of law, did transport, move, attempt to transport, and
attempt to move said aliens in furtherance of such
violation of law within the United States, namely, from
3
a location at or near Harlingen, Texas to another
location at or near Victoria, Texas and other places, by
means of a semi-tractor-trailer rig, for the purpose of
commercial advantage and private financial gain. During
and in relation to said violation, the defendants caused
serious bodily injury to a person and placed in jeopardy
the life of a person.
Counts 40 through 58 mirrored Counts 21 through 39, except that
Counts 40 through 58 involved aliens that died as a result of the
transportation.
Because nineteen aliens died, Williams and most of the co-
defendants were subject to the death penalty under §
1324(a)(1)(B)(iv). After complying with Department of Justice
protocol, the government filed a Notice of Intent to Seek the Death
Penalty against Williams, and the district court severed Williams’s
case from the other defendants. Williams sought discovery of the
government’s capital-charging practices, alleging that the United
States selectively prosecuted him on account of his race; the
government objected, asserting that Williams had not carried his
burden under United States v. Armstrong and United States v. Bass.2
The district court ordered discovery into the government’s capital-
charging practices and issued a “sanctions” order, creating an
affirmative defense based on selective prosecution. We granted the
government’s petition for mandamus, vacating the discovery order
and the sanctions.3
2
517 U.S. 456 (1996); 536 U.S. 862 (2002).
3
In re United States, 397 F.3d 274 (5th Cir. 2005).
4
Williams then renewed a previously denied motion to have the
guilt/innocence phase determined by a non-death qualified jury and
to have a new, death-qualified jury decide punishment, if
necessary. The district court granted Williams’s request, finding
“good cause” due to “[t]he case management problems that have
arisen in this case because of the Government’s interlocutory
appeal of this Court’s discovery rulings.” At the conclusion of a
status conference on Friday, February 4, 2005, the district court
announced that the trial would begin at 9:00 A.M. on Monday,
February 7, 2005, with a non-death qualified jury. The next day,
a Saturday, this Court ordered a stay of the trial until it could
rule on the government’s second petition for writ of mandamus. On
February 14, 2005, this Court rendered its second published opinion
in this case, holding that the district court “improvised a
procedure at odds with the Federal Death Penalty Act.” We vacated
the order and directed that the case proceed promptly to trial with
a single, death-qualified jury for both phases of the case.4
Jury selection began on February 22, 2005, with a jury panel
of 250 citizens. Trial began on March 8, 2005, and the United
States presented testimony and evidence from approximately eighty
witnesses, including many foreign nationals requiring translation.
The jury received the case on March 18, 2005.
4
United States v. Williams, 400 F.3d 277 (5th Cir. 2005).
5
Both the jury instructions and the verdict form are critical
to the questions presented in this case. With respect to Counts 21
through 39, the jury instructions provided:
Title 8, United States Code, Sections
1324(a)(1)(A)(ii) and 1324(a)(1)(B)(i), make it a crime
for anyone to transport an alien within the United States
for the purpose of commercial financial advantage and
private financial gain, knowing or in reckless disregard
of the fact that the alien is here illegally, and in
furtherance of the alien’s violation of law.
For you to find the Defendant guilty of this crime,
you must be convinced that the government has proved each
of the following beyond a reasonable doubt:
First: That certain undocumented aliens had entered
or remained in the United States in violation
of law.
Second: That the Defendant knew or recklessly
disregarded the fact that the aliens were in
the United States in violation of the law;
Third: That the Defendant transported or attempted to
transport the aliens within the United States
with intent to further the alien’s unlawful
presence;
Fourth: That an offense was done for the purpose of
commercial advantage or private financial
gain.
You will also be asked to determine if the
Government has proved the following beyond a reasonable
doubt: If, during and in relation to said violation
Defendant caused serious bodily injury to a person and
placed the life of a person in jeopardy.
These instructions tracked the Fifth Circuit’s Pattern Jury
Instructions, except that the district court included one of the
facts necessary for punishment––that the offense was done for the
purpose of commercial advantage or private financial gain––as an
element of the basic transportation offense.
6
Also following the Fifth Circuit’s Pattern Jury Instructions,
the instructions explained how Williams could be found guilty as an
aider and abettor, and the instructions required the jury to make
an independent determination of Williams’s role in the offense:
You will also be asked to determine whether the Defendant
acted as a principal, as an aider and abettor, or both.
A “principal” is the immediate perpetrator of a crime;
that is, the one who directly commits the offense. The
principal is the actual offender rather than one who
merely assists another in committing an offense. An
“aider and abettor” is one who helps the principal during
the commission of the crime, but may not have committed
the crime with his or her own hands.
The instructions did not define what it meant or how it could be
that a single defendant could be “both” a principal and an aider
and abettor in the commission of a single crime.5
The verdict form tracked the jury instructions. The
government concedes that it was “drafted differently” in this case.
As the Court of Appeals for the District of Columbia explained,
When a greater and lesser offense are charged to the
jury, the proper course is to tell the jury to consider
first the greater offense, and to move on to
consideration of the lesser offense only if they have
some reasonable doubt as to guilt of the greater
offense.6
Here, in contrast, the order was reversed. The jury was first
asked to enter a finding of guilt on the basic transportation
5
Counts 40 through 58 pertained to illegal aliens who died as a result of
being transported in Williams’s tractor-trailer. The jury was to determine the
additional fact: “If, during and in relation to said violation, Defendant caused
serious bodily injury to a person, placed the life of a person in jeopardy, and
the death of a person resulted from the conduct.” In all other respects, the
jury instructions on Counts 40 through 58 mirrored those of Counts 21 through 39.
6
Fuller v. United States, 407 F.2d 1199, 1227 (D.C. Cir. 1968) (en banc).
7
offense, which included the “financial gain” element. Then, the
jury was asked two additional questions: whether the defendant
acted as a principal, an aider and abettor, or both; and whether
the defendant’s actions caused any of the statutory injury factors.
With respect to Counts 21 through 39, the verdict form stated:
We, the jury, unanimously find the Defendant,
Tyrone Mapletoft Williams
_____________________
“Guilty” or “Not Guilty”
The jury is instructed that, should you find the
Defendant not guilty, you do not need to answer the
questions immediately following and may proceed to the
next Count.
We, the jury, further unanimously find beyond a
reasonable doubt that during and in relation to said
violation the defendant, Tyrone Mapletoft Williams was:
___ A principal
___ An aider and abettor
___ Both, a principal and an aider and abettor
We, the jury, further unanimously find beyond a
reasonable doubt that during and in relation to said
violation [NAME OF VICTIM]:
1) Was caused serious injury [yes], [no]
2) Was placed in jeopardy of death [yes], [no]
With respect to Counts 40 through 58, the verdict form was
identical, except that it instructed the jury to also determine if
the death of a person resulted from the offense conduct. The
verdict form contained the additional line:
3) Died as a result of the conduct [yes], [no]
8
Five days after receiving the case, the jury returned two
notes, both indicating that, with respect to Counts 1 through 20
and certain aspects of Counts 21 through 58, the jury was
“hopelessly deadlocked.” Specifically, the first note provided:
Judge Gilmore,
It appears that this jury is hopelessly deadlocked
on Counts 1 and 2-20. We have agreed on guilt/non-guilt
on Counts 21-39 and 40-58 but are hopelessly deadlocked
on the sub-questions on those counts.
Following an Allen charge, the jury returned the second note:
Judge Gilmore,
Arguments have been made, evidence has been
reviewed, and we have discussed all at length. There is
and has been no movement. We are deadlocked as before.
Judge Gilmore polled the jury, and only three of the jurors
believed that it would be useful to continue deliberating. The
other nine reiterated that they were hopelessly deadlocked.
The jury’s verdict form contained only an entry of “guilty” on
the first line provided in Counts 21 through 58. Besides the two
notes, the jury gave no other indication of how it resolved any
issue in this case. Williams moved for a mistrial on “whatever
they haven’t reached a verdict on.” The court determined that the
jury returned a verdict of guilty on aiding and abetting the
commission of the transportation offense in Counts 21 through 58,
and it entered a judgment on that verdict. The court declared a
mistrial on Counts 1 through 20.
9
The government disputed the district court’s interpretation of
the jury’s work. At a status conference on April 11, 2005, the
government announced its intention to retry Williams on Counts 1
through 58. The district court denied the government’s request,
stating that the government could retry Williams only on Counts 1
through 20. The government filed a motion for reconsideration,
which the district court denied, holding that the Double Jeopardy
Clause barred retrial on Counts 21 through 58 “because the evidence
presented by the Government at trial was found to be insufficient
by the unanimous jury to establish that the injury factors should
enhance the sentence.” The court relied upon Bullard v. Estelle,
in which we held that “the double jeopardy clause bars a second
enhancement proceeding when the evidence at the first enhancement
proceeding was insufficient to establish that the defendant
committed one or more of the prior offenses necessary for
enhancement.”7 The district court held that the government
presented insufficient evidence to establish the injury factors, a
conclusion the court reached from the circumstance that, in her
words, the jury “remained silent” on the “sub-questions” in Counts
21 through 58. The government timely appealed.
II
The government’s right to appeal in criminal matters is
controlled by 18 U.S.C. § 3731. That section provides, in part:
7
656 F.2d 1347, 1349 (5th Cir. 1982).
10
In a criminal case an appeal by the United States shall
lie to a court of appeals from a decision, judgment, or
order of a district court dismissing an indictment or
information or granting a new trial after verdict or
judgment, as to any one or more counts, or any part
thereof, except that no appeal shall lie where the double
jeopardy clause of the United States Constitution
prohibits further prosecution.8
By its own terms, § 3731 is to be “liberally construed to
effectuate its purposes,”9 as it is “intended to remove all
statutory barriers to government appeals and to allow appeals
whenever the Constitution would permit.”10 We examine the
consequences of the ruling by the district court, unbounded by the
label given it. A district court judge cannot circumvent the
government’s right to appeal under § 3731 by taking action that has
the effect of a dismissal yet never actually entering a “decision,
judgment, or order.”11
Here, the district court never entered an order dismissing
Counts 21 through 58 of the indictment; rather, the court entered
8
18 U.S.C. § 3731 (2005).
9
Id.; see also United States v. Aslam, 936 F.2d 751, 754 (2d Cir. 1991);
United States v. Edmondson, 792 F.2d 1492, 1496 (9th Cir. 1986).
10
United States v. Wilson, 420 U.S. 332, 337 (1975).
11
United States v. Woolard, 981 F.2d 756, 757 (5th Cir. 1993) (holding that
appeal under § 3731 was appropriate when the district court’s action “effectively
removed a discrete basis of criminal liability,” which had the practical effect
of a dismissal); United States v. Davis, 380 F.3d 821, 828 (5th Cir. 2004)
(finding jurisdiction to review a district court’s ruling that the government
could not seek the death penalty on an indictment that failed to allege the
required intent elements and statutory aggravating factors under the Federal
Death Penalty Act); see also United States v. Marubeni Am. Corp., 611 F.2d 763,
764-65 (9th Cir. 1980) (finding jurisdiction to review an order striking
forfeiture allegations from a RICO indictment); United States v. Levasseur, 846
F.2d 786, 788 (1st Cir. 1988) (reviewing a pretrial order striking a predicate
act from a RICO count).
11
a “judgment” on the jury’s “verdict” of guilty on the aiding and
abetting offense alleged in Counts 21 through 58, refused the
government’s request to retry Williams on the “greater aggravated
offenses” in those counts, and denied the government’s motion to
reconsider that refusal. If the government cannot proceed on the
greater aggravated offenses in Counts 21 through 58, then the
district court’s entry of judgment and denial of the government’s
motion for reconsideration “effectively remove[s] a discrete basis
of liability,” which has the practical effect of a dismissal.12 If
the government cannot proceed on the greater aggravated offenses,
then Williams is not subject to the higher penalties, including
death, provided for in 8 U.S.C. § 1324(a)(1)(B)(i), (iii), and
(iv). We have jurisdiction under § 3731.13
III
Our task is to determine whether the government can retry
Williams for various alien smuggling offenses and, if so, what the
scope of that second trial will be.14 Both parties agree that the
12
Woolard, 981 F.2d at 757; Davis, 380 F.3d at 828.
13
Williams also contends that the government may only appeal to the extent
authorized by the Constitution and that since retrial is barred by the Double
Jeopardy Clause, the government cannot appeal. This argument is meritless. The
primary question on appeal, discussed infra, concerns the impact of the Double
Jeopardy Clause on a second trial. This Court plainly has jurisdiction to
consider the merits of the double jeopardy question in order to resolve the
jurisdictional inquiry under § 3731. See, e.g., United States v. Martin Linen
Supply Co., 534 F.2d 585, 588-89 (5th Cir. 1976) (dismissing appeal for lack of
jurisdiction under § 3731 after determining that, on the merits, the Double
Jeopardy Clause barred further prosecution).
14
There is no dispute that the government can retry Williams on Counts 1
through 20. The jury’s first note plainly stated, “It appears that this jury is
hopelessly deadlocked on Counts 1 and 2-20.” And the district court declared a
12
jury convicted Williams on Counts 21 through 58 of aiding and
abetting the commission of the transportation offense, although for
widely divergent reasons. To Williams, the conviction for aiding
and abetting triggers the Double Jeopardy Clause,15 which precludes
a second trial on the greater aggravated offenses in Counts 21
through 58. To the government, the aiding and abetting conviction
does not preclude retrial on the “greater aggravated offenses” in
those counts. The government seeks to keep the aiding and abetting
conviction in its hip pocket, should a second trial, if any, result
in a complete acquittal.
A
Regardless of whether we agree with Williams that there was a
conviction for aiding and abetting, that conviction would not
preclude a second trial on the “greater aggravated offenses” in
Counts 21 through 58. It is plain that, following Apprendi, the
“injury factors” in 8 U.S.C. §§ 1324(a)(1)(B)(iii) and (iv) are
“elements” of “greater aggravated offenses,” as the government
mistrial on those counts. The Double Jeopardy Clause does not bar a second trial
when the first trial ended with a hung jury. United States v. Perez, 9 Wheat.
579, 580 (1824) (Story, J.) (holding that a failure of the jury to agree on a
verdict was an instance of “manifest necessity” which permitted a judge to
terminate the first trial and retry the defendant because “the ends of justice
would otherwise be defeated”); Richardson v. United States, 468 U.S. 317, 323–24
(1984) (same).
15
UNITED STATES CONSTITUTION amend. V.
13
contends, rather than mere “sentencing factors,” as determined by
the district court.16
The transportation offense carries a base-level punishment of
five years imprisonment.17 Proof of the injury factors in both §§
1324(a)(1)(B)(iii) and (iv) increases the statutory maximum beyond
that provided in § 1324(a)(1)(B)(ii). With § 1324(a)(1)(B)(iii),
the maximum penalty increases to 20 years if the government proves
that during the commission of the offense, the defendant caused
serious bodily injury to, or placed in jeopardy the life of, any
person. Likewise, with § 1324(a)(1)(B)(iv), the maximum penalty
increase to life in prison or death if the government proves that
during the commission of the offense, the defendant caused the
death of any person. Following Apprendi, each additional fact––the
specific injury that resulted––must be alleged in the indictment,
submitted to the jury, and found beyond a reasonable doubt. In
short, each additional fact is an “element” of a greater aggravated
offense.18
16
Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (holding that any fact,
other than a prior conviction, that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury and proved beyond a
reasonable doubt); Ring v. Arizona, 536 U.S. 584, 609 (2002) (applying Apprendi
to conclude that any fact that increases a defendant’s punishment to a possible
sentence of death must be found by a jury beyond a reasonable doubt).
17
8 U.S.C. § 1324(a)(1)(B)(ii).
18
Apprendi, 530 U.S. at 490; Ring, 536 U.S. at 609; see also Castillo v.
United States, 530 U.S. 120 (2000); Jones v. United States, 526 U.S. 227 (2000);
Almendarez-Torres v. United States, 523 U.S. 224 (1999). This construction of
§ 1324 is bolstered by the Fifth Circuit’s Pattern Jury Instructions, which set
forth the elements for conviction of § 1324(a)(1)(A)(ii). The instructions do
not list any of the injury factors as elements of the basic offense. Citing
14
Given that the “injury factors” are elements of greater
aggravated offenses, the presence or absence of a conviction on the
lesser offense––basic transporting––is immaterial in light of the
jury’s express statement of deadlock on the injury factors. If
there were no conviction for aiding and abetting, then Williams’s
first trial ended with a hung jury, which does not preclude a
second trial. If we assume that there was a conviction, then we
would have a conviction on a lesser offense and a “hopelessly
deadlocked” jury on the greater offense. In such a case, we agree
with the Eighth Circuit that “where the jury expressly indicates
that it is unable to reach an agreement on the greater charge, a
conviction on a lesser included offense does not constitute an
implied acquittal of the greater offense and presents no bar to
retrial on the greater offense.”19
Williams, relying on Green v. United States, argues that the
conviction on the basic transportation offense, even as an aider
and abettor, implies that the jury acquitted him of everything
else. We disagree. In Green, the Supreme Court recognized that a
jury’s silence can be considered an implied acquittal. There, the
Supreme Court held that a jury’s verdict on second-degree murder,
coupled with silence on the greater offense (first-degree murder),
Apprendi, the instructions note that § 1324 “describes aggravating factors” which
raise the statutory maximum penalty and must be “submitted as additional elements
if charged in the indictment.” Fifth Circuit Pattern Jury Instructions § 2.03.
19
United States v. Bordeaux, 121 F.3d 1187, 1193 (8th Cir. 1997).
15
was no different “than if the jury had returned a verdict which
expressly read: ‘We find the defendant not guilty of murder in the
first degree but guilty of murder in the second degree.’”20 On such
facts, the Double Jeopardy Clause precludes retrial of the greater
offense.21 Williams’s reliance on Green falls short where, as here,
the jury was not “silent” on the greater aggravated offenses. Both
jury notes, as well as the subsequent poll, plainly indicate that
the jury was “hopelessly deadlocked” on the injury factors in
Counts 21 through 58. A statement of hopeless deadlock is neither
a statement of silence, nor a statement of acquittal.
B
As things stand, the government, if it chooses, can retry
Williams on Counts 1 through 20 and on the “greater aggravated
offenses”––the transportation offense (§ 1324(a)(1)(A)(ii)) with
the additional injury factors (§§ 1324(a)(1)(B)(iii) and (iv))––in
Counts 21 through 58. We now turn to the remainder of Counts 21
through 58, which concern Williams’s role in the transportation
offense. Specifically, we examine whether the jury convicted him
of aiding and abetting the commission of the transportation offense
when it returned both an entry of “guilty,” as to the elements of
the offense, but a statement of “hopeless[] deadlock[],” as to his
20
Green v. United States, 355 U.S. 184, 190-91 (1957); see also Price v.
Georgia, 398 U.S. 323, 328-29 (1970) (holding that a guilty verdict on a
voluntary manslaughter charge and silence on a murder charge precluded retrial
of the greater offense).
21
Green, 355 U.S. at 190; see also Price, 398 U.S. at 329.
16
role in the offense. We conclude that the jury failed to convict
Williams of any offense. Thus, the government may retry Williams
on the basic transportation offense in Counts 21 through 58––as
either a principal or as an aider and abettor.
1
First, the district court erred in this case when it engrafted
onto the elements of the transportation offense (§
1324(a)(1)(A)(ii)) an element of a greater aggravated
offense––namely, that the offense was committed “for the purpose of
commercial advantage or private financial gain.”22 The “financial
gain” fact is an “element” of a separate, greater offense.23 In
short, there are two offenses––(1) transporting and (2)
transporting for financial gain––and the former is a lesser
included offense of the latter.24
Although the district court gave the jury a correct
explanation of the four elements of transporting for financial
gain, that was error because the government proceeded on two
theories regarding Williams’s role in the offense: that of a
principal and that of an aider and abettor. As we have previously
held, when the government proceeds on an aider and abettor theory,
“the question of financial gain––whether by the defendant or
22
8 U.S.C. § 1324(a)(1)(B)(i).
23
See Apprendi, 530 U.S. at 490; Jones, 526 U.S. at 232-35.
24
See Blockburger v. United States, 284 U.S. 299, 303-04 (1932).
17
others––is immaterial and should not be introduced into the picture
lest it cause confusion.”25
That confusion stems from the interplay between the
defendant’s role in the offense and the possible maximum sentences.
If the defendant’s role in the transportation offense is only that
of an aider and abettor, then the maximum punishment is 5 years
imprisonment under § 1324(a)(1)(B)(ii). Yet if the defendant
commits the offense as a principal and for financial gain, then the
maximum punishment is 10 years imprisonment under §
1324(a)(1)(B)(i). An aider and abettor, even one who commits the
offense for the purpose of financial gain, is only subject to a
maximum of 5 years imprisonment.26 Because the district court only
presented the jury with the “transporting for financial gain”
offense, the government was forced to seek a separate question on
Williams’s role in that offense. On that question the jury was
“hopelessly deadlocked,” which precludes the district court from
sentencing Williams. Without a determination of Williams’s role in
the offense, we cannot say whether the maximum term of imprisonment
is 5 years (under § 1324(a)(1)(B)(ii)) or 10 years (under §
1324(a)(1)(B)(i)).
2
25
United States v. Nolasco-Rosas, 286 F.3d 762, 767 (5th Cir. 2002).
26
8 U.S.C. § 1324(a)(1)(B)(ii); Nolasco-Rosas, 286 F.3d at 767.
18
Second, we cannot sustain a conviction for aiding and abetting
because the jury did not unanimously agree that Williams’s role in
the offense was that of an aider and abettor. The jury was asked
to make this finding,27 but both jury notes confirm that they could
not reach unanimous agreement on one or the other.28 Conviction in
the federal system, however, requires a unanimous verdict.29 This
rule of unanimity extends to every element of the offense.30 A lack
of unanimity on Williams’s role in the offense may not be fatal,
however, as the unanimity requirement is not absolute. For
instance, unanimity is not required as to the particular means used
by the defendant to commit a particular element of the offense.31
27
The charged asked the jury “to determine whether [Williams] acted as a
principal, as an aider and abettor, or both.”
28
The first noted stated that the jury was “hopelessly deadlocked on the
sub-questions” in Counts 21 through 58. The second reiterated this deadlock:
“There is and has been no movement. We are deadlocked as before.”
29
FED. R. CRIM. PROC. 31(a).
30
Richardson v. United States, 526 U.S. 813, 817 (1999) (“[A] jury in a
federal criminal case cannot convict unless it unanimously finds that the
Government has proved each element.”); In re Winship, 397 U.S. 358, 364 (1970)
(“[W]e explicitly hold that the Due Process Clause protects the accused against
conviction except upon proof beyond a reasonable doubt of every fact necessary
to constitute the crime with which he is charged.”); Andres v. United States, 333
U.S. 740, 748 (1948).
31
Justice Breyer explained,
Where, for example, an element of robbery is force or the threat of
force, some jurors might conclude that the defendant used a knife to
create the threat; others might conclude that he used a gun. But
that disagreement––a disagreement about means––would not matter as
long as 12 jurors unanimously concluded that the Government had
proved the necessary related element, namely, that the defendant had
threatened force.
Richardson, 526 U.S. at 817; see also Schad v. Arizona, 501 U.S. 624, 631-32
(1991) (plurality op.); Anderson v. United States, 170 U.S. 481, 499-501 (1898).
19
Here, in light of the jury’s express and unequivocal statement of
“guilty,” we could extend that means exception to the rule of
unanimity to the defendant’s role in the offense.
We do not think the rule of unanimity ought to be extended so
far. Mere agreement on some form of culpable conduct is not
sufficient to convict Williams under § 1324. Unlike the general
aiding and abetting statute,32 the alien smuggling statute
distinguishes for purposes of punishment between a principal and an
aider and abettor. Under the general aiding and abetting statute,
a person who aids and abets the commission of an offense is treated
the same as a principal actor: “Whoever commits an offense against
the United States or aids, abets, counsels, commands, induces or
procures its commission, is punishable as a principal.”33 Cabining
the defendant’s role into a particular box is unnecessary. In
fact, the jury will seldom be asked to make an independent
determination of whether the defendant committed the offense as a
principal or as an aider and abettor. Both are sufficient for
conviction; both are treated the same for punishment.
We need not decide today whether, under the general aiding and
abetting statute, the jury’s lack of unanimity on the defendant’s
role in the offense is sufficient for conviction. The alien
32
18 U.S.C. § 2.
33
18 U.S.C. § 2; see also U.S. SENTENCING GUIDELINES § 2X2.1 (2005 ed.)
(providing that “[t]he offense level [for aiding and abetting] is the same level
as that for the underlying offense”).
20
smuggling statute distinguishes between a principal and an aider
and abettor for purposes of punishment. As the government
proceeded on both tracks regarding Williams’s role in the
transportation offense, the jury must unanimously agree on at least
one. The evidence in this case can tell two different stories. To
some, Williams could have appeared as a principal actor in the
conspiracy: driving the tractor-trailer; refusing to activate the
trailer’s refrigeration unit, despite advice from Holloway;
refusing to release the aliens; and ignoring the aliens’ pleas for
release. To others, Williams could have appeared to be a mule, a
mere pawn in the larger smuggling conspiracy: calling the other
individuals for instructions; demanding more money; purchasing
water bottles for the aliens; and leaving the scene once the aliens
forged their own escape. All we have is “hopeless[] deadlock[]” on
the specific question, and this is insufficient for conviction.
We recognize that, as a legal matter, any juror convinced that
Williams acted as a “principal” was also convinced that Williams
acted as an “aider and abettor.” But we decline to stretch the
rule of unanimity so far as to imply a conviction. We do not know
why the jury was unable to agree; all we know is that they could
not agree. Neither the charge nor any response to the jury notes
instructed the jury on how a single person could be “both” a
principal and an aider and abettor in the commission of a single
offense or explained that, as a legal matter, a juror convinced
Williams was a principal necessarily believed that Williams was
21
also an aider and abettor. When the jury announced that it could
not agree, their confusion was plain, but it went unaddressed. The
reality is that jurors persuaded that Williams played the
significant role of principal never agreed that his role was the
lesser one of aider and abettor, nor did jurors persuaded that
Williams’s role was that of aider and abettor ever agree that
Williams played the larger role of principal.
In light of the lack of basic guidance to the jury, we decline
to judicially convict Williams of aiding and abetting on the basis
of a legal inference. To do so would be to find meaning in a
“verdict” upon premises fundamentally different from those on which
the district court erroneously asked the jury to decide. This jury
did not unanimously agree on Williams’s role in the offense, and it
is not the case that the trial judge can simply default to the
lowest possible sentence, especially when that requires ignoring
the express statements of the jury. In short, the district court
erred when it entered a judgment of conviction on the supposed
“verdict” returned by the jury. There was no verdict.
VI
Accordingly, we VACATE the judgment of conviction entered by
the district court on the jury’s “verdict” in this case. Heeding
the plea of the district court regarding her crowded docket and in
view of the extraordinary history of this case, we REMAND this case
to the Chief District Court Judge of the Southern District of Texas
22
for random reassignment to another judge for trial, should the
government elect to proceed.
23
APPENDIX A
§ 1324. Bringing in and harboring certain aliens
(a) Criminal Penalties
(1)(A) Any person who ––
(i) knowing that a person is an alien, brings to or attempts to
bring to the United States in any manner whatsoever such
person at a place other than a designated port of entry or
place other than as designated by the Commissioner, regardless
of whether such alien has received prior official
authorization to come to, enter, or reside in the United
States and regardless of any future official action which may
be taken with respect to such alien;
(ii) knowing or in reckless disregard of the fact that an alien has
come to, entered, or remains in the United States in violation
of law, transports, or moves or attempts to transport or move
such alien within the United States by means of transportation
or otherwise, in furtherance of such violation of law;
(iii) knowing or in reckless disregard of the fact that an alien has
come to, entered, or remains in the United States in violation
of law, conceals, harbors, or shields from detection, or
attempts to conceal, harbor, or shield from detection, such
alien in any place, including any building or any means of
transportation;
(iv) encourages or induces an alien to come to, enter, or reside in
the United States, knowing or in reckless disregard of the
fact that such coming to, entry, or residence is or will be in
violation of law; or
(v) (I) engages in any conspiracy to commit any of the preceding
acts, or
(II) aids or abets the commission of any of the preceding
acts,
shall be punished as provided in subparagraph (B).
(B) A person who violates subparagraph (A) shall, for each alien in
respect to whom such a violation occurs ––
(i) in the case of a violation of subparagraph (A)(i) or (v)(I) or
in the case of a violation of subparagraph (A)(ii), (iii), or
(iv) in which the offense was done for the purpose of
commercial advantage or private financial gain, be fined under
Title 18, imprisoned not more than 10 years, or both;
(ii) in the case of a violation of subparagraph (A)(ii), (iii),
(iv), or (v)(II), be fined under Title 18, imprisoned not more
than 5 years, or both;
24
(iii) in the case of a violation of subparagraph (A)(i), (ii),
(iii), (iv), or (v) during an in relation to which the person
causes serious bodily injury (as defined in section 1365 of
Title 18) to, or places in jeopardy the life of, any person,
be fined under Title 18, imprisoned not more than 20 years, or
both; and
(iv) in the case of a violation of subparagraph (A)(i), (ii),
(iii), (iv), or (v) resulting in the death of any person, be
punished by death or imprisoned for any term of years or for
life, fined under Title 18, or both.
25
United States v. Williams
Court: Court of Appeals for the Fifth Circuit
Date filed: 2006-05-10
Citations: 449 F.3d 635
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