Monthly archive

November 2021 - Page 2

Federal Corner: When Does “No” Mean No?


On August 10, 2021, a panel of the United States Court of Appeals for the Fifth Circuit held that a defendant who a jury determined did not know the quantity of drugs involved in a conspiracy could be found guilty of the conspiracy, but could not be sentenced for the quantity of drugs involved in the conspiracy. United States v. Aguirre-Rivera, 8 F.4th 405 (5th Cir., 2021). The case distinguishes between jury questions related to the primary offense versus those relating to punishment.

Background of the Case

Baltazar Aguirre-Rivera was charged with one count of conspiracy to possess with intent to distribute at least one kilogram of heroin in violation of 21 U.S.C. §§841(a)(1), (b)(1)(A)(I), and 846. At the end of Aguirre-Rivera’s trial, the district Court instructed the jury that it could find Aguirre-Rivera guilty only if the government had proven beyond a reasonable doubt: (1) “that two or more persons directly, or indirectly, reached an agreement to possess heroin with intent to distribute the same”; (2) “that the Defendant knew of the unlawful purpose of the agreement”; (3) “that the Defendant joined in the agreement willfully, and that is with the intent to further its unlawful purpose”; (4) “that the overall scope of the conspiracy involved at least one kilogram or more of a mixture or substance containing a detectable amount of heroin”; and(5) “that the Defendant knew, or reasonably should have known, that the scope of the conspiracy involved at least one kilogram or more of a mixture or substance containing a detectable amount of heroin.” See id. at 408.

Jury Questions and Answers

The district court provided the jury with a verdict form containing three questions. The first question asked for a general verdict of “Guilty” or “Not Guilty.” The jury answered this question “Guilty.” The second question asked, “Do you find beyond a reasonable doubt that the overall scope of the conspiracy involved at least one kilogram or more of a mixture or substance containing a detectable amount of heroin?” The jury responded “Yes” to this query. The final question asked, “Do you find beyond a reasonable doubt that the defendant knew or reasonably should have known that the scope of the conspiracy involved at least one kilogram or more of a mixture or substance containing a detectable amount of heroin?” The jury answered, “No.” See id.

Is there a Problem here?

The jury’s answer to the third question seems to fly in the face of the Court’s instructions. The jury found the defendant guilty in spite of the fact that they did not find that the government proved beyond a reasonable doubt that the Defendant knew or should have known the scope of the conspiracy; this was one of the questions the Court instructed the jury must be answered affirmatively in support of a “Guilty” verdict. Based on this discrepancy, Aguirre-Rivera moved for judgment of acquittal on the basis that the jury’s answer to the second special interrogatory contradicted, and therefore undermined, its general verdict of guilty. See id.

“No” Does Not Mean No

Despite the Court’s instructions, the judge did not issue a judgment of acquittal. The district court denied Aguirre-Rivera’s motion because, although the jury’s answer to the second special interrogatory “undermine[d] the fifth element of the jury charge, [it did] not negate an essential element of the jury’s finding of guilt.” See id.

The 5th Circuit addresses the First Issue

Aguirre-Rivera first challenged the district court’s denial of his motion for judgment of acquittal. He contended that the jury’s answer to the second special interrogatory, which found that he neither knew nor should have known that the conspiracy involved one kilogram or more of heroin, directly contradicted the fifth element of the jury charge. According to him, this contradiction undermined one of the elements that was necessary to support his conviction under the statute; and therefore it also undermined the guilty verdict altogether. See id. at 409

The Standard of Review

The panel for the Fifth Circuit started by stating “We review the denial of a motion for judgment of acquittal de novo. United States v. Buluc, 930 f.3d 383, 387 (5th Cir.), cert. denied, 140 S.Ct. 544(2019). ‘Courts consistently vacate convictions when the answers to special interrogatories undermine a finding of guilt the jury made on the general questions.’ United States v. Gonzales, 841 F.3d. 339, 348 (5th Cir. 2016)). If the jury’s answer to the second special interrogatory did undermine an essential element of the charged offense, then the district court should have granted Aguirre-Rivera’s motion for the judgment of acquittal. See id. Our task, then, is to determine whether the jury’s answer to the special interrogatory undermined an essential element of Aguirre-Rivera’s conviction.” See Aguirre-Rivera 8 F.4th at 409.

Element versus Enhancement

The opinion then lays out the elements of the offense charged. “The essential elements of a drug conspiracy are (1) an agreement by two or more persons to violate the narcotics laws; (2) a defendant’s knowledge of the agreement; and (3) his voluntary participation in the agreement.” See id. (quoting United States v. Bargas-Ocampo, 747 f.3d 299, 303 (5th Cir. 2014) (en banc)). The Court then stated, “That is all the government needs to prove to sustain a drug conspiracy conviction under 21 USC §§ 841(a)(1) and 846.” See id. at 410. The Court reasoned that an enhancement is different from an element of the primary offense because it only affects punishment, not guilt. Although it must be submitted to the jury as an element, because it increases the mandatory punishment under Alleyne v. United States, 570 U.S. 99, 103 (2013), a finding of fact that affects only the legally prescribed punishment does not become an element of the conspiracy offense. See id. at 410-11. In so holding, the Court cited United States v. Daniels, 723 F.3d 562 , 573 (5th Cir.) 2013, as supporting its position. On that basis, the Court sustained the district court’s denial of the judgment for acquittal. See id. at 411.

Sentencing Implications

The Court then addressed the impact of the jury’s finding that Aguirre-Rivera did not have knowledge of the scope of the conspiracy. The Court held that even though the conviction was not affected by the jury’s finding, “the sentence most certainly was.” The defendant was sentenced under the guideline range for Conspiracy to Possess with Intent to Distribute 100 Gams or More of Heroin in violation of 21 U.S.C. §§ 841(b)(1)(B). This was improper since the jury’s negative answer to the question regarding the amount of heroin involved in the conspiracy negated any enhancements under § 841(b).” See id.

Legal Basis for Sentencing Implications

The Supreme Court has held “that factual determinations that increase maximum or minimum sentences, other than a prior conviction, must be found by a jury beyond a reasonable doubt.” Apprendi v. New Jersey, 530 U.S. 466, 490 (2000); see also Alleyne v. United States, 133 S.Ct. 2151, 2158, (2013); United States v. Haines, 803 F.3d 713, 738 (5th Cir. 2015).

The Aguirre-Rivera Court held: “Because the quantity of heroin involved” in a drug conspiracy case can affect a defendant’s “minimum sentence[] under §841, it must be found by a jury.” Id. In this case the jury’s answer to the second special interrogatory negated any enhancements under §841(b). Therefore, Aguirre-Rivera could not be subject to any mandatory minimum. He should have been sentenced under  §841(b)(1)(C), which gives the sentencing range for drug conspiracy violations not subject to additional enhancements under §841(b)(1)(A), (B), or (D). Aguirre-Rivera, 8 F.4th at 411.

One More Time, in English

Aguirre-Rivera was charged with participating in a conspiracy involving a kilo or more of heroin under 21 U.S.C §§ 841(a)(1), (b)(1)(A)(I), and 846. The jury found that he did not know the conspiracy involved over a kilo of heroin. So, the district court sentenced Aguirre-Rivera under §841(b)(1)(B) for a conspiracy involving 100 grams or more of heroin, which carries a minimum of 5 years. However, the jury did not make a finding that Aguirre-Rivera knew any amount of heroin involved in the conspiracy, so he could not be charged with even that reduced amount of heroin. Aguirre-Rivera should have been sentenced under §841(b)(1)(C), which is the range of punishment for an offense without an enhancement for the amount of drugs involved in the conspiracy.

The district court sentenced Aguirre-Rivera under a statute which had a range of punishment of 5 years to 40 years. He should have been sentenced within a range of punishment of no more than 20 years. The proper statute for sentencing was §841(b)(1)(C), which has no mandatory minimum sentence.

Was there Harm?

Aguirre-Rivera was sentenced to 60 months in prison. This was the minimum sentence under §841(b)(1)(B). The length of the sentence held significance with the Court. “The court then proceeded to sentence Aguirre-Rivera to 60 months in prison and three years of supervised release- a sentence coinciding almost exactly with the mandatory minimum under §841(b)(1)(B).” Aguirre-Rivera, 8 F.4th at 412. Since the Court held that Aguirre-Rivera should have been sentenced without any mandatory minimum under §841(b)(1)(C), the Court found that there was harm. The Court noted that the district court, despite saying that the sentence would have been the same even if any error was made in the calculation of the guidelines, also stated, “[i]f it turns out that [Aguirre-Rivera’s] lawyers are correct, and if we have lower guidelines, I would be the first to be happy to revisit the case in order to make a correction to any mistake that this may have resulted in.” Id. The Court found that this statement confirmed that Aguirre-Rivera may have been harmed by the error. The Court stated, “Given that the district court expressed willingness to revisit the case and correct any errors inherent in Aguirre-Rivera’s sentence, we cannot say that the government has carried its burden of demonstrating beyond a reasonable doubt that the district court would have imposed the same sentence regardless of any error.” Id. at 412-13.

My Thoughts

In my opinion, the Aguirre-Rivera case is more important to the trial lawyer than it is to the appellate practitioner. The case is a reminder to the trial lawyer, facing the prospects of trying an unwinnable case or pleading to an outlandish guideline range, that there may be an issue to try if the client held a minor role in the conspiracy. This issue is often present in cases involving “mules” or persons  enlisted to perform tasks by the primary conspirators. The results of a jury finding that the defendant lacked knowledge of the scope of the conspiracy at trial could greatly reduce a client’s guidelines just as it did in this case. Winning this issue could go a long way toward earning your client    a deduction for his role in the offense. It would be hard for the judge to find your client was a major player in the conspiracy when a jury found that your client did not know the scope of the conspiracy. See USSG §§2D1.1(a)(5) and 3B1.2. A finding that your client played a minor role in the conspiracy could also eliminate the two-level increase for importation in cases involving methamphetamine under USSG § 2D1.1(b)(5). Remand for sentencing under the correct guidelines was made possible in this case because the district court judge was more interested in the correct application of the law than in protecting against a remand.

From the Front Porch: The Need for Rural Practice Trial Tips Post Covid


As we have emerged from our hibernation over the last year-and-a-half and have gotten back to regular court appearances and jury trials, it is not hard to tell in many respects the landscape has changed.  This may be especially true for those of us who practice in rural areas and do not have the option of continuing to appear via Zoom.

I know from my personal experience that jury selection in rural towns can be challenging depending upon the nature of the charges. I have had several serious cases where we have held jury selection in the local civic hall, the DAV, or other various county structures that can hold more than 150 people at once based on the nature of the charge.  The older historic courthouses, while picturesque and beautiful, were not designed to accommodate 150 or 200 people or more.  Often times when you have a sexual assault or murder case in a small town where everyone knows everybody else’s business, you might have to have panels that big to get an impartial and fair jury. So, when we started to come out of that great pandemic hibernation and we are being sent to the local ag barn or exposition center to pick our juries, many of us had been to the local ag barn or exposition center before. 

However, we were not prepared for not being able to clearly see a juror’s face because of the face-shield or mask.  The jury selection process has developed the sterile feeling of some type of laboratory experiment. How you navigate that particular type of problem depends to a significant extent on how your judge has been addressing and handling these types of issues since March of 2020. If the Court just does not care, it may be that you need to object that the Court is not taking the appropriate safety precautions to protect the prospective jury panel and court personnel. Remember, those folks must be there because they are appearing based upon the Court’s summons for jury duty but the rest of us are there because we are being paid to appear and do our respective jobs. 

Personally, I do not like the idea of wearing a face-shield or mask during jury selection. It detracts from the personal connection we are trying to establish with the jury. I do, however, believe it is the correct decision for everyone involved. This is in no way a political statement or position, but I do not want to be known as the person that potentially infects a prospective jury panel.  I believe for the time being as we get back to work in courthouses across the State, that we need to accommodate others and be aware of our surroundings and the fact those jurors are serving the community. Now, I know some judges who have told me they do not believe they can require anyone to wear a mask in the courtroom because of the Governor’s pending executive orders. While I do not agree with that position, I do respect how they have arrived at that decision, and ultimately it is the Judge’s decision to make. This is just one of the problems I have seen come up over the last six months as we have gotten back to work in court. I, for one, am thankful we have moved back into the courtroom. I do not believe we can be as effective via Zoom as we are in-person when protecting and advocating on our client’s behalf. 

I can see other issues which have begun to spring to life as we proceed to trial in a post-COVID environment. If I choose to wear a mask during trial for my protection and my client’s protection, should I be allowed to ask the prospective jurors what their feelings are regarding the wearing of a mask or face-shield? It appears the choice to wear a mask or to get vaccinated has somehow turned into a political debate. Is it appropriate for someone to object to proceeding to trial if the Court does not require all the prospective jurors, court staff, and personnel to wear a mask and take appropriate safety measures?  These questions and issues are fascinating to me because we all hold different beliefs of how they should be addressed and handled by those in charge.  Some believe its none of that person’s business and the government needs to stay out of my decision-making process.  Others feel we have people in charge to protect the community as a whole and especially the more vulnerable people in our communities. So, how we manage these types of issues becomes more delicate in a post- COVID environment because we certainly do not want a prospective juror’s perception of our beliefs to affect our client during trial. This is why, we look to the Court to call balls and strikes on these and many other issues which are fast approaching, as we get back to normal.

To that end, our Rural Practice Committee is in the process of organizing and putting together a cheat-sheet or tips for trial checklist for use in court as it concerns some of those issues which may be affecting our brothers and sisters in rural areas. There are no bad ideas or arguments as we start to formulate this tip sheet/checklist, so I would ask for everyone’s input and assistance in getting this project off the ground. 

If you have been in trial and faced a problematic issue, caused or exacerbated by the circumstances we currently find ourselves in courthouses throughout the State, please send us your thoughts but more importantly your solutions.  This is going to be an undertaking which takes our entire village, collective voice, and knowledge to deal with in the year ahead.  If you are able and willing, please help us in this endeavor which will benefit our entire membership.  You can contact us with your ideas, tips and thoughts by sending them to me at or to Melissa Schank at . As always, we and you are TCDLA Strong.

Shout Outs


Clint Broden had a client charged in federal court for failure to register as a sex offender in the Northern District of Texas based upon an Illinois Child Pornography conviction. The case was dismissed on the eve of trial through a motion in limine based on the argument that the Illinois child pornography law had a broader mens rea element (should have known child was under 18) than the federal law (knew child was under 18). Because the Illinois statute “swept more broadly” than the federal SORNA statute, Broden argued that the Illinois could not form the basis of a federal failure to register charge and therefore was inadmissible at trial and need to be excluded in limine. Without the admissibility of that conviction, the government had to dismiss the case because it was the only basis for the federal failure to register charge. Congratulations, Clint!

Congratulations to Heather Barbieri, who got a NOT GUILTY on false allegations of continuous sexual assault of a child, last week in Collin county. Amazing work, Heather!

Mark Griffith received a verdict of NOT GUILTY on a DWI case. His client’s blood test was suppressed prior to trial. After a full investigation and a two day jury trial, “Sweet Justice” was served. Congratulations, Mark!

The Court of Criminal Appeals unanimously decided Ex Parte Clinton Lee Young, No. WR-65,137-05 (unpublished) granting a new trial on September 22, 2021. Young had been on death row since 2003, and had three previous writs failed. The Los Angeles Federal Defenders, Capital Habeas Unit, took on the case and found records that the district judges had paid Assistant District Attorney Ralph Petty $16,000 for working for the judges on Young’s case, while drawing a salary from the District Attorney’s office. The DA self-recused and a neighboring County’s DA was appointed to represent the State. Allison Clayton was enlisted to assist with FOIA requests and other investigation of Midland County records. Ultimately, Petty double-dipped repeatedly, getting paid by several judges as their “law clerk”, from around 2000-2016, on top of a base annual salary of about $151,950. At least $262,650, in addition to his salary, was paid by the judges. Petty retired in lieu of State Bar discipline. In response to discovery efforts, Petty asserted his Fifth Amendment rights. This throws into doubt the validity of about 450 convictions in Midland County. TCDLA has filed Complaints with the State Commission on Judicial Conduct, reporting record facts on all the offending judges. Outstanding job to Allison Clayton, and all who contributed!

Kudos to T.W. Davidson, who represented a client on trial for murder in Cherokee county. After a nine day trial and six hour jury deliberation, they received a NOT GUILTY verdict. Great work, T.W.!

Shout-Out to Mark Thiessen, Amanda Culbertson, and Kacie Penman, who were able to achieve a NOT GUILTY on a .146 suppressed breath test DWI case. They were able to prove that the 15 minute required observation period for the breath testing was violated by the arresting officer by checking the DPS computer logs. Kudos to all!

Staff Highlights: TCDLA’s Seminar Associate

Desirae Esquivel

Title: Seminar Associate
Native State: Texas
Zodiac Sign: Libra
Favorite Color: Lime Green
Loves: to be creative
Interesting Fact: She cannot wink, snap or whistle.

Desirae Esquivel has six years of service industry experience and has been a bookkeeper for over two years. At TCDLA, she prepares registration forms, agendas and evaluations. She also applies for the CLE credit and maintains the online CLE. In her spare time, she likes to draw, paint, craft and sew. In addition, she volunteers at dog adoption events and enjoys the great outdoors.