     Case: 15-50762   Document: 00513743590        Page: 1   Date Filed: 11/02/2016




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                United States Court of Appeals

                                    No. 15-50762
                                                                         Fifth Circuit

                                                                       FILED
                                                                November 2, 2016

UNITED STATES OF AMERICA,                                         Lyle W. Cayce
                                                                       Clerk
             Plaintiff - Appellee

v.

ANTHONY RYAN GONZALES; STACEY LOUISE CASTILLO, also known
as Stacy Louise Castillo; RAYMOND HERNANDEZ OLGIN, JR.; RUDOLFO
ROMERO PAREDES,

             Defendants - Appellants




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


Before WIENER, CLEMENT, and COSTA, Circuit Judges.
GREGG COSTA, Circuit Judge:
      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,
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                                  No. 15-50762
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.
                                        I.
      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




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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-10 2 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


       1  San Miguel was Liz’s boyfriend’s brother. Saenz was San Miguel’s cousin. Lamb
was Saenz’s friend.
        2 The Military Armament Corporation Model 10 is a compact, blowback-operated

machine pistol.
        3 At this point, Lamb, Saenz, and San Miguel had separated. San Miguel testified

that Saenz stole the drugs from Liz’s purse but didn’t tell him and Lamb about it until after
they reached Saenz’s grandmother’s house in Levelland. San Miguel said he and Lamb tried
to drive back to Liz’s apartment in Odessa the next morning, but they ran out of gas on the
side of the road and eventually parted ways. San Miguel called Liz and told her Saenz was
the one who stole the drugs.
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                                 No. 15-50762
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.
                                      II.
      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


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                                      No. 15-50762
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




       4  In Pinkerton, the Supreme Court held that conspirators are criminally liable for
substantive crimes committed by other conspirators in furtherance of the conspiracy, unless
the crime “did not fall within the scope of the unlawful project, or was merely a part of the
ramifications of the plan which could not be reasonably foreseen as a necessary or natural
consequence of the unlawful agreement.” 328 U.S. at 647–48.
        5 There is a pattern jury charge emphasizing the unanimity requirement that the

district court used. See FIFTH CIRCUIT PATTERN JURY INSTRUCTION (CRIMINAL) § 1.25 (2015).
But the defendants argued that the special questions were also needed to ensure unanimity
given the number of defendants and theories involved. In particular, as will be seen, the
defendants contended that Pinkerton liability does not apply to first-degree murder. A
special jury question indicating whether a guilty verdict was reached on a Pinkerton theory
would have isolated that issue for appeal and prevent the need for a retrial.
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                                 No. 15-50762
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, but nonetheless found that the
jury’s answers to Jury Questions 1 and 3—which in some instances were
inconsistent with the evidence—did not control because the interrogatories
were “unnecessary and inconsequential.”          The court thus denied the
defendants’ motions on the ground that “there was evidence to support the
convictions of all [d]efendants under the Pinkerton/conspirator liability theory”
even when that was not the theory the jury indicated it agreed on in its answers
to the special questions.
      The four defendants received the same consecutive sentences: twenty
years for the drug convictions that are not challenged on appeal; seven years
for the “use and carry” firearm convictions; and life for the murder convictions.
They all appeal.
                                      III.
      We first consider challenges to the murder convictions.


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                                              A.
       Castillo, Gonzales, and Paredes argue that there is insufficient evidence
to support the jury’s verdict that they committed murder in connection with
using a firearm during a drug trafficking offense.                  To recap their roles,
Gonzales and Castillo recruited a group to help Liz and Ruben recover the
stolen drugs. Gonzales and Castillo brought (and later disposed of) the MAC-
10 and handgun that were used during the hunt for Lamb, and they also
participated in his assault. But neither of them was present when Lamb was
murdered. Paredes, on the other hand, was in the car when Lamb was killed,
but there is no evidence that he was the shooter.
       A sufficiency challenge ordinarily prompts us to recite the standard of
review requiring that we uphold the verdict so long as “after viewing the
evidence in the light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime beyond a reasonable
doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). That remains the
ultimate issue, but a predicate legal question will determine whether the
verdicts will survive that deferential review.
       The question is whether the sufficiency review must be conducted in
light of the special answers the jury provided or whether, as the district court
held, those answers can be disregarded and the review just be based on the
general verdict of guilty. If the theory upon which the jury based its verdict in
the special answers—personal or direct liability for the murder as opposed to
aiding and abetting or Pinkerton liability—must be given effect, then the
government concedes there is no evidence to support the convictions as Galan
was the shooter. 6 If, on the other hand, only the general verdict is considered,


       6The government halfheartedly argues that the finding of “personal liability” could
be read as a finding of Pinkerton liability. It correctly observes that to be held liable under
Pinkerton, a conspirator must have a requisite amount of “individual culpability” in the sense
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then we would affirm the convictions so long as there is evidence supporting at
least one theory of liability. See United States v. Garza-Robles, 627 F.3d 161,
166 (5th Cir. 2010) (citing Griffin v. United States, 502 U.S. 46, 59–60 (1991) 7).
As discussed further below when considering Olgin’s sentence, that evidence
exists to support Pinkerton liability for all the defendants as the murder was a
foreseeable act committed in furtherance of the drug trafficking conspiracy.
       To determine whether the answers to the special interrogatories must be
given effect, we must consider their historic role in criminal law mentioned at
the outset. But first, some terminology. “Special interrogatories,” “special
verdicts,” and “special findings” are sometimes used interchangeably. See
WAYNE R. LAFAVE, ET AL., 6 CRIM. PROC. § 24.10(a) n.1 (4th ed. 2015). A true



that, among other things, there had to be an individual act to join the conspiracy. Indeed,
viewed in a vacuum, “personal liability” could simply mean that one is being held individually
responsible for her actions. The three possible answers to the special question on murder
must, however, be read in context. When the choices are “personal liability,” aiding and
abetting liability, or Pinkerton liability, personal liability cannot be the same as the Pinkerton
liability the jury did not select. Cf. United States v. Harris, 420 F.3d 467, 477 (5th Cir. 2005)
(explaining that a jury’s answer of “manslaughter” in response to a special interrogatory
“[n]ecessarily . . . reject[ed] the alternate choice of murder in either the first or second
degree”). The jury’s finding that a defendant personally committed the murder necessarily
excluded a finding of Pinkerton liability, which applies only when “another [other]
conspirator[s] committed the” substantive offense.               FIFTH CIRCUIT PATTERN JURY
INSTRUCTIONS (CRIMINAL) § 2.17 (2015) (emphasis added).
        The instruction the district court gave removes any doubt about the significance of the
jury’s selection of “personal liability.” It described the three theories the jury could select as
follows: “The first is that the defendant is personally liable for personally and knowingly
using or carrying a firearm during and in relation to the defendant’s alleged commission of
the crime charged in Count One that resulted in the death of Sean Lamb. The second is that
the defendant was a member of the conspiracy in Count One while some other co-conspirator
knowingly used or carried a firearm during and in relation to that conspiracy that resulted
in the death of Sean Lamb, which was committed in furtherance of or as a foreseeable
consequence of the conspiracy. The third is that the defendant aided and abetted a
conspirator who used or carried a firearm during and in relation to the drug trafficking crime
in Count One that resulted in the death of Sean Lamb, whether or not the defendant was a
member of the conspiracy in Count One.”
        7 Griffin explains that “in the absence of anything in the record to show the contrary,

the presumption of law is that the court awarded sentence on the good count only.” 502 U.S.
at 50 (quoting Claassen v. United States, 142 U.S. 140, 146 (1891)).
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“special verdict” asks the jury to make specific factual findings in the absence
of a general verdict, and leaves the judge to determine the defendant’s guilt or
innocence in light of those findings. Id. An example is a recent case in which
the Fourth Circuit vacated the defendant’s conviction for possession of a
prohibited object by a federal inmate because the jury was only asked factual
questions—was an exhibit a weapon and did the defendant possess the object—
and never asked to give an up/down verdict on guilt. United States v. Ramirez-
Castillo, 748 F.3d 205, 214 (4th Cir. 2014). Jury interrogatories, on the other
hand, supplement the general verdict.         LAFAVE, supra n.1.     That is the
appropriate term for what the district court did in this case. As will be seen
below, however, much of the case law uses the “special verdict” term even when
talking about interrogatories like these.
      Even with respect to “[s]pecial interrogatories,” we have repeated the
refrain that they “should not be used in criminal trials.” United States v.
Bosch, 505 F.2d 78, 82 (5th Cir. 1974); United States v. James, 432 F.2d 303,
307 (5th Cir. 1970) (“We do not minimize the seriousness of the error when a
trial court submits special interrogatories to the jury in a criminal case.”).
Much of that hostility stems from a desire not to undermine jury nullification,
described by Justice Holmes as the ability of a jury “to bring in a verdict in the
teeth of both law and facts.” Horning v. District of Columbia, 254 U.S. 135,
138 (1920), abrogated on other grounds by United States v. Gaudin, 515 U.S.
506, 520 (1995). Although a controversial power that courts purportedly do not
encourage, “the jury’s power of lenity explains why the use of special
interrogatories, which might ‘catechize a jury as to its reasons,’ has been met
with a lack of judicial enthusiasm.”        Desmond, 670 F.2d at 417 (quoting
Edmund M. Morgan, A Brief History of Special Verdicts and Special
Interrogatories, 32 YALE L.J. 575, 592 (1923)). A general verdict requiring only
an answer of “guilty” or “not guilty” permits a jury to reach its decision “based
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more on external circumstances than the strict letter of the law.” Id. at 418.
A classic special verdict that asks the jury to decide facts, and then either
directs the jury to a corresponding finding on the general verdict or results in
the judge entering that finding, impairs that jury prerogative. Special verdicts
have thus long been viewed as inconsistent with the principle that “not only
must the jury be free from direct control in its verdict, but it must be free from
judicial pressure.” Spock, 416 F.2d at 181. 8
       We found that such improper judicial pressure resulted from a special
question in Bosch.          The trial in that drug prosecution focused on the
defendant’s claim that a federal agent had promised her immunity. Bosch, 505
F.2d at 79. The judge thus instructed the jury to answer “[d]id an agent of the
United States Government promise the defendant [ ] that she would not be
prosecuted for the offense charged . . . ?” Id. at 80. He further instructed that
if the jury answered no to that special question, “then you should find the
defendant guilty.” Id. at 81. We vacated the resulting conviction, noting that
“any encroachment upon the broad right to a jury’s general verdict of guilty or
not guilty is fraught with danger.” Id. at 78–79.
       This historic aversion to special questions has lessened in recent years,
at least for interrogatories that are not accompanied by an instruction
directing a finding of guilt based on the answer as was the one in Bosch. The
same circuit that decided the Spock case, which is recognized as a “leading



       8Another court explained:
      To ask the jury special questions might be said to infringe on its power to deliberate
      free from legal fetters; on its power to arrive at a general verdict without having to
      support it by reasons or by a report of its deliberations; and on its power to follow or
      not to follow the instructions of the court. Moreover, any abridgement or modification
      of this institution would partly restrict its historic function, that of tempering rules of
      law by common sense brought to bear upon the facts of a specific case.
United States v. Ogull, 149 F. Supp. 272, 276 (S.D.N.Y. 1957), quoted in Spock, 416 F.2d at
181.
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                                       No. 15-50762
authority against the use of special verdicts based on their potential for leading
the jury to the prosecution’s desired conclusion,” has since held that the statute
at issue in this case—18 U.S.C. § 924—is one in which special interrogatories
may be particularly appropriate because it “proscribes more than one type of
conduct, with penalties that vary depending upon the acts committed.” United
States v. Melvin, 27 F.3d 710, 716 (1st Cir. 1994).             The increased complexity
of federal criminal law that section 924 reflects is one reason for the greater
acceptance of special interrogatories. See United States v. Reed, 147 F.3d 1178,
1180–82 (9th Cir. 1998) (citing numerous cases in which special questions have
been upheld); United States v. Ogando, 968 F.2d 146, 149 (2d Cir. 1992)
(expressing a “preference for special interrogatories in particularly complex
criminal cases”). They have been used (1) when the government has charged
a defendant with a crime in the conjunctive but may satisfy its burden of proof
in the disjunctive; (2) a defendant raises the defense of insanity; (3) the jury’s
determination of facts will affect sentencing; and (4) the government seeks the
criminal forfeiture of property from a defendant. 9                   ROBERT E. LARSEN,
NAVIGATING THE FEDERAL TRIAL § 2:48 (2016 ed.).                          And one of the
“justifications most frequently offered for their use” is the one that motivated
the questions in this case: ensuring unanimity when there are multiple



       9 A case we considered in which they were used is Harris. 420 F.3d 467. A jury
convicted the defendant of (1) carjacking, in violation of 18 U.S.C. § 2119, and (2) use of a
firearm during a crime of violence, in violation of 18 U.S.C. § 924(c) and (j). Id. Finding that
the government failed to carry its burden of showing a nexus between the intent to kill or
harm and the taking of the car, we reversed the convictions, noting that the jury’s special
verdict supported our conclusion. Id. at 475. The special verdict form asked the jury to
indicate whether it found the defendant guilty of first-degree murder, second-degree murder,
voluntary manslaughter, or involuntary manslaughter. Id. at 476. The jury instructions
explained that murder required malice aforethought and included killings accompanied by
“an intent to kill.” Id. Voluntary manslaughter did not. Id. This court stated that, by
selecting voluntary manslaughter, “the jury rejected a finding of murder” and instead
determined “that the killing did not occur during the course of a robbery or have the element
of malice.” Id. at 476–77.
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theories of guilt. Kate H. Nepveu, Beyond “Guilty” or “Not Guilty”: Giving
Special Verdicts in Criminal Jury Trials, 21 YALE L. & POL’Y REV. 263, 283
(2003) (noting that special interrogatories in this context “can ensure that the
[unanimity] issue did not get lost in the shuffle during deliberations . . . [and]
may contribute to judicial economy by confirming the jury’s unanimity and
thus avoiding a retrial”). Although defendants have generally opposed special
verdicts given the Sixth Amendment concerns stated above, a special
interrogatory requiring unanimity as to the theory of conviction is usually
sought by the defense as it was here.
      The propriety of those interrogatories, to which the government agreed,
is not at issue here. The effect of the jury’s answers to them is. Although the
law may be murky concerning when it is proper to give the jury special
interrogatories, it is not when it comes to the effect of those interrogatories
once answered. Courts consistently vacate convictions when the answers to
special interrogatories undermine a finding of guilt the jury made on the
general question. LAFAVE, supra § 24:10(a) (“A jury’s special verdict finding
may also negate an essential element of an offense of which the jury returned
a general verdict.    Unlike the situation where a verdict on one count is
inconsistent with a verdict on another count, a special finding negating an
element of a single count will be treated as an acquittal of that count, not as
an inconsistent verdict.”). At the federal level, this issue has arisen in drug
cases when the jury has found the defendant guilty but then answered “none”
in response to a special interrogatory about the quantity of drugs involved in
the offense (a question that is asked because drug quantity can determine the
minimum or maximum sentence). Despite a finding of guilt on the general
drug trafficking question, courts have required a judgment of acquittal in light
of the “none” answer to the drug quantity question. United States v. Randolph,
794 F.3d 602, 612–13 (6th Cir. 2015); cf. United States v. Shippley, 690 F.3d
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                                       No. 15-50762
1192, 1193 (10th Cir. 2012) (describing trial in which jury found defendant
guilty of drug conspiracy but answered “none” for drug quantity, prompting
trial judge to ask for further deliberations). In the fraud arena, courts have
not convicted defendants despite general verdicts of guilty when the jury
answered “no” to special questions asking whether the jury had unanimously
agreed that the false statement was material, United States v. Mitchell, 476
F.3d 539, 542–43 (8th Cir. 2007) 10, or whether the defendant had the specific
intent to defraud, United States v. Lucarelli, 476 F. Supp. 2d 163, 169 (D. Conn.
2007).
       The issue in this case is slightly different. The special interrogatory was
not asking about an element of the offense, but the theory of liability. Yet the
holding of these cases—that the special interrogatory must be given effect and
can negate a general verdict of guilty—decides the fundamental question in
this case. We cannot ignore the special interrogatory answer of “personal
liability” and pretend that the jury based its finding of guilt on the Pinkerton
theory for which the jury did not check the box. The Second Circuit reached
this conclusion when considering the role of special interrogatories in the same
situation we are facing. See United States v. Frampton, 382 F.3d 213 (2d Cir.
2004). The indictment charged the defendant on alternative theories: he either
was a principal who used a firearm in connection with a crime of violence or he
aided and abetted another defendant’s commission of that crime. Id. at 224.



       10In Mitchell, the district court granted a Rule 33 motion for new trial in light of the
answer to the special interrogatory showing the jury had not unanimously found the
materiality element. 476 F.3d at 543. The question on appeal was whether jeopardy had
attached. The Eighth Circuit held it had not in light of the wording of the special
interrogatory which may have meant the “no” response just indicated that “some jurors found
the statements material and some jurors found the statements immaterial.” Id. at 545. That
would be akin to a mistrial in which retrial is permitted. The court recognized that if the
answer meant “the jury unanimously found the statements immaterial,” then jeopardy would
have attached. Id.
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                                      No. 15-50762
A jury found the defendant guilty in response to the general verdict, but the
district court acquitted him because of the jury’s answer to a special question
that he was a principal, a theory of guilt on which the court found the evidence
insufficient.    The Second Circuit affirmed, recognizing that, ordinarily,
precedent would dictate that it consider whether the government’s evidence
was sufficient to support a general verdict under either of the charged theories;
the answer to the special question, however, limited the sufficiency review to
the jury’s chosen theory. 11 Id.
       The only case we came across supporting the district court’s view that a
special interrogatory can be ignored is United States v. Bran, 776 F.3d 276 (4th
Cir. 2015).     Bran’s discussion of the issue is dicta, however, because the
evidence was sufficient to support the verdict based on the theory the jury
selected in response to the interrogatory. See id. at 280.
       The government argues that the Supreme Court’s recent decision in
Musacchio v. United States, 136 S. Ct. 709 (2016), supports disregarding the
special interrogatory and reviewing the sufficiency of the evidence in light of a
Pinkerton theory. Musacchio held that when a district court instructs the jury
by including an additional element that the statute does not actually require,
the erroneous instruction does not govern the sufficiency review on appeal. Id.
at 715. In explaining that holding, the Supreme Court stated that a “reviewing



       11 The district court in United States v. Werme, 1990 WL 74267 (E.D. Penn. May 31,
1990), reached a similar result. Jurors there were given two interrogatories. Id. at *3. The
first asked whether the defendant traveled in interstate commerce with the intent to commit
commercial bribery; the second asked if the defendant aided or abetted another in traveling
in interstate commerce with the intent to commit commercial bribery. Id. The jury found
the defendant “not guilty” of traveling in interstate commerce, but “guilty” of aiding and
abetting. Id. Although the evidence established that the defendant traveled in interstate
commerce on the date in question, there was no evidence that any other person traveled in
interstate commerce whom the defendant could have aided. Id. Recognizing that the
evidence did not support the theory of liability on which the defendant was convicted, the
district court acquitted the defendant. Id.
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                                  No. 15-50762
court’s limited determination on sufficiency review thus does not rest on how
the jury was instructed. When a jury finds guilt after being instructed on all
elements of the charged crime plus one more element, the jury has made all
the findings that due process requires.” Id. This, the government says, means
that the general verdict finding the defendants guilty of the murder should be
affirmed because the jury was instructed on all the elements and found the
defendants guilty in its general verdict. But Musacchio says only that jury
instructions that erroneously require a jury to make additional, extraneous
findings can be ignored when conducting a sufficiency review; it quite sensibly
does not say that the jury’s actual findings can be ignored. See id. at n.2.
Musacchio did not involve the question of the effect to be given special verdicts
and should not be read to undo the case law giving those jury findings legal
force.
         Applying it to special interrogatories, Musacchio actually supports a
finding of insufficiency here.      It explains that the sufficiency review
“essentially addresses whether ‘the government’s case was so lacking that it
should not have even been submitted to the jury.’” Id. (quoting Burks v. United
States, 437 U.S. 1, 16 (1978)).    The personal liability theory for which the
government concedes there was no evidence as to Castillo, Gonzales, and
Paredes should never have been submitted as an option for the jury and thus
the verdict based on the unsupported theory must be set aside. Castillo and
Gonzales were not even present when Lamb was shot. And although the jury
could have concluded that Paredes was in Lamb’s vehicle at the time of the
shooting, testimony and forensic evidence indicate that the shots were fired
from where Galan was sitting in the vehicle. Conspirators Liz and Brian also
testified that it was their understanding, based on conversations the night of
the murder, that Galan was the shooter.


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                                 No. 15-50762
      The murder convictions based on the jury’s findings of personal liability
thus cannot stand. Nor can we uphold the murder convictions because there
might be sufficient evidence to support a Pinkerton theory that the jury
rejected. See Harris, 420 F.3d at 477 (explaining that jury’s selection of one of
multiple theories in response to a special question is a rejection of the other
options). Indeed, our longstanding rule that a guilty verdict can be upheld
under Pinkerton only when the jury is instructed on that theory of liability
recognizes that, for such a jury verdict to be upheld, it must be possible that
the jury actually relied on Pinkerton in finding guilt.        United States v.
Morrison, 833 F.3d 491, 503 n.2 (5th Cir. 2016) (rejecting Pinkerton as basis
for affirming convictions because instruction was not given (citing United
States v. Polk, 56 F.3d 613, 620 n.4 (5th Cir. 1995)). This makes sense. To find
Pinkerton liability, a jury must make findings not necessary to a finding of
personal liability, for example, that the substantive offense was committed by
another conspirator in furtherance of and as a foreseeable consequence of the
conspiracy. See FIFTH CIRCUIT PATTERN JURY INSTRUCTION (CRIMINAL) § 2.17
(2015). A judge cannot make those findings to convict a defendant when a jury
has not.
      The Sixth Amendment concern with courts’ invading the jury’s purview
that has traditionally counseled against the asking of special questions in
criminal cases would face an even greater affront if a court were to replace a
jury’s answer to special interrogatories with its view of how the case should
have been decided. The right to trial by jury “includes, of course, as its most
important element, the right to have the jury, rather than the judge, reach the
requisite finding of ‘guilty.’” Sullivan v. Louisiana, 508 U.S. 275, 277 (1993)
(citing Sparf v. United States, 156 U.S. 51, 105–06 (1895)).




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                                      No. 15-50762
                                             B.
       The jury did rely on a Pinkerton theory in finding Olgin guilty of first-
degree murder. Recall that once Lamb was trapped in the alley, his assailants
shoved him into the front passenger seat of his Expedition before beating him.
Olgin got into the driver’s seat and drove the group around as they searched
for Saenz and the stolen drugs. He was driving the Expedition when Lamb
was shot by Galan.
       Olgin thus raises a different challenge to his first-degree murder
conviction, arguing that Pinkerton liability cannot reach a substantive crime
that requires the heightened mens rea of malice aforethought and
premeditation.      Pinkerton was a prosecution of bootlegging brothers for
conspiring to violate the revenue laws. 328 U.S. 640. In upholding convictions
on substantive tax counts for the less involved brother, the Supreme Court held
that conspirators are criminally liable for substantive crimes committed by
their fellow conspirators in furtherance of a conspiracy, unless the crime “did
not fall within the scope of the unlawful project, or was merely a part of the
ramifications of the plan which could not be reasonably foreseen as a necessary
or natural consequence of the unlawful agreement.” Id. at 647–48. Although
still a controversial holding in the broader world of criminal law, 12 in the
federal system Pinkerton has long been a powerful tool for prosecutors. It
continues to be applied in the fraud context that gave rise to it, but its most
common application is likely in drug trafficking conspiracies like the one in
this case.




       12Many state courts have required a greater showing for conspirators to be held liable
for substantive offenses committed during the conspiracy, the Model Penal Code rejects
Pinkerton liability, and the academy’s view of the decision is “overwhelmingly negative.” See
Matthew A. Pauley, The Pinkerton Doctrine and Murder, 4 PIERCE L. REV. 1, 4 (2005).
                                             17
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                                  No. 15-50762
      But the substantive offense that occurred during the course of this
conspiracy—murder—is not often seen in the federal system. Does Pinkerton
liability attach to murder? In arguing no, Olgin relies on United States v.
Cherry, 217 F.3d 811, 817–18 (10th Cir. 2000). Cherry reasoned that because
“first-degree murder liability incorporates a specific intent requirement far
more stringent than mere foreseeability,” the Pinkerton doctrine should not
“hold co-conspirators liable for first-degree murder that was not the original
object of the conspiracy.” Id. at 818. To do so, the court said, “would apparently
render every minor drug distribution co-conspirator, regardless of knowledge,
the extent of the conspiracy, its history of violence, and like factors, liable for
first-degree murder,” a result that “appears incompatible with the due process
limitations inherent in Pinkerton.” Id.
      Yet as even the Tenth Circuit has more recently recognized, holding a
defendant responsible for a co-conspirator’s acts—even murder—does not
violate due process when those acts “were within the scope of the conspiracy
and thus necessarily foreseeable to the other members of the conspiracy.”
United States v. Rosalez, 711 F.3d 1194, 1207 (10th Cir. 2013). The defendant
in Rosalez helped plan the assault of fellow inmate, Pablo Zuniga-Garcia. Id.
at 1199. Zuniga died as a result of the assault, and the men involved were
charged with a number of crimes, including second-degree murder. Id. at
1200–01. Rosalez, who planned but did not participate in the beating, argued
that subjecting him to Pinkerton liability violated due process because the
murder was not the original object of the conspiracy—they were only supposed
to beat Zuniga.      Id. at 1206–07. Despite its earlier holding in Cherry, the
Tenth Circuit concluded that holding Rosalez responsible for his co-
conspirators’ acts did not violate due process. Id. at 1207. The court reasoned
that, given the number of attackers and weapons involved, it was reasonably
foreseeable that Zuniga might die from the assault; therefore, the murder “was
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                                 No. 15-50762
not an act that occurred separately from the assault, but rather was a direct,
and entirely foreseeable, result of the vicious assault carried out on him.” Id.
The Eleventh Circuit has ruled similarly. See United States v. Alvarez, 755
F.2d 830, 848–51 (11th Cir. 1985) (finding that, because the defendants had
actual knowledge of at least some of the circumstances and events leading up
to the murder and were aware that Alvarez might use deadly force to avoid
going back to prison, “the relationship between the [defendants] and the
murder was not so attenuated as to run afoul of the potential due process
limitations on the Pinkerton doctrine”); see also United States v. Britt, 112 F.
App’x 352, 355 (5th Cir. 2004) (affirming a Pinkerton instruction for the offense
of murder committed in furtherance of a continuing criminal enterprise though
defendants did not challenge Pinkerton’s general applicability to murder);
United States v. Thompson, 286 F.3d 950, 965 (7th Cir. 2002) (explaining that
Pinkerton’s reasonable foreseeability requirement captures the specific intent
requirement for first-degree murder).
      Lamb’s murder was at least as foreseeable (probably more so) to the
conspirators in this case than were the murders to the conspirators in Rosalez
and Alvarez. Members of the drug trafficking organization were armed with
weapons, determined to retrieve the drugs, and fearful of the consequences
they might suffer if they failed. They lured Lamb into an alley, cornered, beat,
and kidnapped him. And when his information on Saenz’s whereabouts proved
unfruitful, members of the group became increasingly upset. It was reasonably
foreseeable that someone might use one of the weapons to make Lamb or Saenz
turn over the stolen drugs. As the Second Circuit observed, “[t]he death of a
victim is a natural consequence of a robbery which is premised on the use of
overmastering force and violent armed confrontation.” United States v. Parkes,
497 F.3d 220, 232 (2d Cir. 2007); see also Alvarez, 755 F.2d. at 848–49 (finding
that, based on the amount of drugs and money involved, the jury could infer
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                                   No. 15-50762
that the conspirators would know that at least some conspirators would be
carrying weapons and deadly force would be used if necessary to protect the
conspirators’ interests).     If any doubt remains that everyone who went
searching for the drugs that night knew that a murder was possible, there is
Castillo’s comment earlier that evening that Lamb and Saenz were informants
whom they had to “get rid of.” We affirm Olgin’s murder conviction that the
jury based on Pinkerton liability.
                                        IV.
      We turn now to the convictions for using or carrying a firearm while
committing a drug trafficking crime. 18 U.S.C. § 924(c). We address two
challenges.    One again involves a question about the effect of the special
interrogatories. The other is a double jeopardy argument.
                                        A.
      The district court used special interrogatories for the section 924(c) count
because of the graduated penalties that offense provides depending on how the
weapon is used. Doing so made sense in light of Alleyne v. United States, 133
S. Ct. 2151 (2013), which held that the facts enhancing a minimum sentence
under that statute are elements of the offense for a jury to decide rather than
sentencing factors a judge can decide. Id. at 2162. Using or carrying the
firearm results in a five year minimum sentence. 18 U.S.C. § 924(c)(1)(A)(i).
Brandishing the firearm elevates that minimum to seven years. 18 U.S.C.
§ 924(c)(1)(A)(ii).    Discharging results in a ten year minimum.       18 U.S.C.
§ 924(c)(1)(A)(iii).    After the verdict form asked the jury whether the
defendants were guilty of using or carrying the firearm in connection with drug
trafficking, it thus asked an additional question in which the jury could check
a box for “brandished,” “discharged,” or “neither.” The form also asked another
special question akin to the one asked for murder: was liability for any section


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                                       No. 15-50762
924(c) conviction based on “personal liability,” “conspirator’s liability,” or
“aiding and abetting”?
       For Castillo and Paredes, the two defendants who challenge the
sufficiency of the evidence for this count, the jury found them guilty of “use and
carry” in response to the general verdict. Then, in response to the special
interrogatories, it stated that their guilt was based on personal liability and
that each brandished a firearm. 13 Following the same reasoning it used in
upholding the murder convictions, the district court upheld the brandishing
convictions based on its belief that it could do so under a Pinkerton theory even
though the jury did not base its verdict on such. For the reasons we have
already discussed, once a special interrogatory is asked, the jury’s answers
have legal force. We can thus consider the sufficiency of the evidence to
support a brandishing theory only in light of the personal liability theory on
which the jury based its verdict.
       The evidence supports the verdict that Paredes personally brandished a
firearm. To “brandish” a firearm means “to display all or part of the firearm,
or otherwise make the presence of the firearm known to another person, in
order to intimidate that person, regardless of whether the firearm is directly
visible to that person.” 18 U.S.C. § 924(c)(4). Two witnesses who lived in a
house facing the alley where Lamb was initially assaulted testified. Larry
Hodge stated that on the night of the murder he heard “screaming and
hollering” from the alley and went to investigate. He saw the assault and
considered trying to “break them up,” but changed his mind when he saw a
man coming from his left in a red shirt holding what looked like a camouflaged



       13Gonzales and Olgin likely do not raise sufficiency challenges to the 924(c) conviction
because the jury checked “conspirator’s liability” for them, so they would be guilty so long as
any conspirator committed the foreseeable act of brandishing a firearm in furtherance of the
conspiracy. See United States v. Dean, 59 F.3d 1479, 1490 n.20 (5th Cir. 1995).
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                                  No. 15-50762
“machine gun.” Larry’s wife, Trudy, testified that this same man was not one
of the people assaulting Lamb. Videos from the Parkway Inn, the first place
the group took Lamb after abducting him from the alley, show Paredes wearing
a red shirt. Paredes points out that Ruben was also wearing a red shirt. But
testimony suggests that after Ruben arrived in the alley, he joined Liz,
Gonzales, and Galan to interrogate and beat Lamb in his vehicle. So the jury
could have reasonably concluded that the man Larry Hodge saw wearing the
red shirt and carrying the camouflaged gun in the alley—the one Trudy Hodge
said was not hitting Lamb—was Paredes, rather than Ruben.
      Paredes argues that, even if all this allowed the jury to conclude that
Paredes was carrying the gun in the alley, it still does not amount to
brandishing as there is no evidence that Lamb ever saw the gun. But if the
jury believed that Paredes was the man carrying the machine gun in the alley,
it could have reasonably found that this amounted to displaying it in a
threatening manner. Larry Hodge testified that he considered trying to break
up the assault but changed his mind because, after seeing the man with the
gun, he feared for his and his wife’s safety.
      As for Castillo, the government concedes that “[t]here was no testimony
that she brandished either the handgun or the MAC-10.” We agree with the
government, however, that there was sufficient evidence of her guilt on the
basic section 924(c) carrying offense, which is a lesser included offense. The
evidence shows that Castillo used a firearm to “protect or facilitate” the group’s
drug trafficking efforts. See United States v. Baptiste, 264 F.3d 578, 588 (5th
Cir. 2001), modified in other respects, 309 F.3d 274 (5th Cir. 2002). Castillo
carried in her purse a pink and gray .38 caliber revolver to the meeting where
they arranged for Lamb’s abduction. There was also testimony that the day
after Lamb’s murder, Castillo and Gonzales tried to sell both her revolver and
the MAC-10 that was used to kill Lamb. The jury could have reasonably
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                                       No. 15-50762
inferred that Castillo wanted to get rid of her handgun because it had been
used in Lamb’s abduction and was thus associated with his murder. The
appropriate remedy in this situation when the evidence supports a conviction
for a lesser included offense is to vacate the sentence and remand for
resentencing under the lesser carrying offense. See Theriault v.United States,
434 F.2d 212, 214–15 (5th Cir. 1970). Castillo will be resentenced under the
five year minimum that applies to a “use and carry” conviction.
                                              B.
       All four defendants argue that sentencing them for both (1) the use and
carry of a firearm during a drug trafficking offense (in violation of section
924(c)) and (2) firearm murder in relation to a drug trafficking offense (in
violation of section 924(j)) violates double jeopardy. Because we are vacating
the murder convictions for all but Olgin, only he can still press this argument. 14
See Brown v. Ohio, 432 U.S. 161, 165 (1977) (stating that “[w]here consecutive
sentences are imposed at a single criminal trial, the role of the constitutional
guarantee is limited to assuring that the court does not exceed its legislative
authorization by imposing multiple punishments for the same offense”).
       The Double Jeopardy Clause provides, as relevant here, that no “person
[shall] be subject for the same offence to be twice put in jeopardy of life or limb.”
U.S. CONST. Amend. V. This court has not addressed whether this prohibits
cumulative punishment under sections 924(c) and 924(j). The First, Second,
and Sixth Circuits have held or indicated that sentencing for the same conduct
under both sections 924(c) and 924(j) does violate double jeopardy. See United
States v. Sanchez, 623 F. App’x 35, 38 n.1 (2d Cir. 2015) (noting that a section


       14 Given that we are affirming his murder conviction with its life sentence, Olgin’s
additional punishment for the 924(c) offense has no practical effect at present. Nonetheless,
we still must address the legal validity of the brandishing conviction. It has legal effect and
could still have practical effect in the event something happens to the murder conviction or
life sentence in the future.
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                                   No. 15-50762
924(c) conviction was vacated without opposition by the government because
it was a lesser included offense of the section 924(j) charge); United States v.
Wilson, 579 F. App’x 338, 348 (6th Cir. 2014) (holding the district court erred
by imposing sentences under both section 924(c) and section 924(j) because the
former is a lesser included offense of the latter); United States v. Garcia-Ortiz,
657 F.3d 25, 27–31 (1st Cir. 2011) (holding that the conviction and sentence
under section 924(c) must be annulled because section 924(c) is a lesser
included offense of 924(j)). Although not confronted with a double jeopardy
challenge to convictions under both section 924(c) and section 924(j), the
reasoning of an Eleventh Circuit case indicates that court would allow
punishment under both provisions. See United States v. Julian, 633 F.3d 1250,
1252–57 (11th Cir. 2011) (concluding that Congress intended section 924(j) to
define a distinct offense from 924(c) and that it is “irrelevant for Double
Jeopardy purposes” that proof of a violation of section 924(j) “always proves a
violation of [section] 924(c)” (citations omitted)).
      Although the government takes the position that the First Circuit’s
decision in Garcia-Ortiz is “better reasoned” and that there is a double jeopardy
problem, the district court rejected this concession that the sentences imposed
for Counts Two and Three should be merged. Siding instead with the Eleventh
Circuit, the district court imposed sentences for both counts, finding that
section 924(c) and section 924(j) are “distinct offenses, which Congress
intended to punish in separate and consecutive fashions.” We review this issue
de novo. See United States v. Deshaw, 974 F.2d 667, 669 (5th Cir. 1992).
      Section 924(c) provides in pertinent part:
      [A]ny person who, during and in relation to any crime of violence
      or drug trafficking crime . . . for which the person may be
      prosecuted in a court of the United States, uses or carries a
      firearm, or who, in furtherance of any such crime, possesses a


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                                 No. 15-50762
      firearm, shall, in addition to the punishment provided for such
      crime of violence or drug trafficking crime—

      (i) be sentenced to a term of imprisonment of not less than 5 years;

      (ii) if the firearm is brandished, be sentenced to a term of
      imprisonment of not less than 7 years; and

      (iii) if the firearm is discharged, be sentenced to a term of
      imprisonment of not less than 10 years.

18 U.S.C. § 924(c)(1)(A). It is well accepted that these are aggravated offenses
for which a single act involving a firearm can result in only a single conviction
and sentence.
      A separate subsection of the statute provides:
      A person who, in the course of a violation of subsection (c), causes
      the death of a person through the use of a firearm, shall . . . be
      punished by death or by imprisonment for any term of years or for
      life . . . .”

18 U.S.C. § 924(j). Every element of section 924(c) is also an element of section
924(j); therefore, a person who violates section 924(j) necessarily violates
section 924(c). As such, section 924(j) amounts to the “same offense” as section
924(c) for purposes of the Double Jeopardy Clause. See Blockburger v. United
States, 284 U.S. 299, 304 (1932) (establishing a test for determining whether
two different statutes punish the same offense and explaining that “where the
same act or transaction constitutes a violation of two distinct statutory
provisions, the test to be applied . . . is whether each provision requires proof
of a fact which the other does not”).
      We recognize, though, that “[w]ith respect to cumulative sentences
imposed in a single trial, the Double Jeopardy Clause does no more than
prevent the sentencing court from prescribing greater punishment than the
legislature intended.” Missouri v. Hunter, 459 U.S. 359, 366 (1983). This
means that “[w]here . . . a legislature specifically authorizes cumulative
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                                 No. 15-50762
punishment under two statutes, regardless of whether those two statutes
proscribe the ‘same’ conduct under Blockburger,” a defendant may receive
cumulative punishment. Id. at 368–69.
      We saw that very result in Missouri v. Hunter, when the Supreme Court
vacated a judgment setting aside a defendant’s sentence for armed criminal
action on double jeopardy grounds. Id. at 369. The Missouri court had ruled
that double jeopardy prohibited the defendant from being sentenced on both
first-degree robbery and “armed criminal action” arising from the same
conduct. Id. at 362–63. Under the state’s robbery statute, “[e]very person
convicted of robbery in the first degree by means of a dangerous and deadly
weapon and every person convicted of robbery in the first degree by any other
means shall be punished by imprisonment by the division of corrections for not
less than five years. . . .” Id. at 362 (quoting Mo. Rev. Stat. § 560.135 (Supp.
1975)). The statute proscribing armed criminal action provides:
      [A]ny person who commits any felony under the laws of this state
      by, with, or through the use, assistance, or aid of a dangerous or
      deadly weapon is also guilty of the crime of armed criminal action
      and, upon conviction, shall be punished by imprisonment by the
      division of corrections for a term of not less than three years. The
      punishment imposed pursuant to this subsection shall be in
      addition to any punishment provided by law for the crime
      committed by, with, or through the use, assistance, or aid of a
      dangerous or deadly weapon.

Id. (quoting Mo. Rev. Stat. § 559.225 (Supp. 1976) (emphasis added)). The
emphasized language made “crystal clear” the legislature’s intent to impose
cumulative punishment. Id. at 362, 368.
      We made a similar finding based on the language of section 924(c)—one
of the statues involved here—in United States v. Singleton, 16 F.3d 1419 (5th
Cir. 1994). The defendants argued that double jeopardy barred punishing
them for both carjacking (under section 2119) and a firearms charge (under

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                                 No. 15-50762
section 924(c)). Id. at 1421. We held that section 924(c)—which provides that
the punishment shall be “in addition to the punishment provided for [the
predicate] crime of violence or drug trafficking crime”—demonstrates on its
face “that Congress intended for § 924(c)’s five-year sentence to be imposed
cumulatively . . . .” Id. at 1425. We concluded, therefore, that a defendant may
receive cumulative punishment for violating section 924(c) and the carjacking
statute that serves as the underlying crime of violence, even though the two
statutes failed the Blockburger test.        Id. at 1429. We reached the same
conclusion in a case in which the defendant was convicted of both a section
924(c) violation and a section 844(i) offense of damaging property by means of
an explosive. See United States v. Nguyen, 117 F.3d 796, 797 (5th Cir. 1997).
      Important features of the statutes at issue in those section 924(c) cases
and Hunter are lacking in subsections (c) and (j) of the firearm statute we are
considering.   Most importantly, the express language demonstrating the
legislature’s intent for cumulative punishment is absent in section 924(j). It
provides a sentence including death or life without noting that the sentence
should run consecutively to a section 924(c) offense. As for section 924(c), it
provides that its sentence should run consecutive to any sentence for the
underlying drug offense or crime of violence, which it will for the drug
conspiracy conviction here as it did for the predicate offenses in Singleton and
Nguyen. It says nothing, however, about a section 924(c) sentence running
consecutively to a sentence for a section 924(j) conviction. There is a separate
provision in section 924(c) stating that “no term of imprisonment imposed on a
person under this subsection shall run concurrently with any other term of
imprisonment imposed on the person.” 18 U.S.C. § 924(c)(1)(D)(ii). But that
prohibition on concurrent sentences is a much weaker basis from which to
discern legislative intent to impose multiple punishments for what is treated
as the same offense under Blockburger than can be found in the affirmative
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                                  No. 15-50762
statutory commands Hunter and Singleton relied on that call for consecutive
sentences with respect to particular types of other offenses. Mo. Rev. Stat.
§ 559.225 (providing for punishment in addition to that for another offense
involving use of dangerous or deadly weapon); 18 U.S.C. § 924(c)(1)(A)
(providing for sentence “in addition to the punishment provided for such crime
of violence or drug trafficking crime”); see also Albernaz v. United States, 450
U.S. 333, 342 (1981) (recognizing that Congress is “aware of the Blockburger
rule and legislate[s] with it in mind” so the test should control a double
jeopardy question absent an indication to the contrary in a statute).
       Also noteworthy, and different from Hunter and Singleton, which both
dealt with separate statutes, is that we are faced with subsections of the same
law.   That also makes it less likely that Congress intended sentences for
subsections 924(c) and (j) to be imposed for the same conduct, especially absent
any express textual evidence of such a desire. See Nguyen, 117 F.3d at 797 n.1.
What is more, section 924(j) expressly incorporates section 924(c) and requires
a violation of section 924(c) before the penalties set forth in section 924(j) can
be imposed. Most courts of appeals have thus “fairly interpreted [§ 924(j)] as
an additional aggravating punishment for the scheme already set out in
§ 924(c).” United States v. Allen, 247 F.3d 741, 769 (8th Cir. 2001), cert.
granted, judgment vacated on other grounds, 536 U.S. 953 (2002); see United
States v. Battle, 289 F.3d 661, 667 (10th Cir. 2002) (holding that section 924(j)
was not a discrete crime from section 924(c)).
       We read the statue the same way and thus do not see an intent by
Congress to impose cumulative punishment under both subsections for the
same conduct. The one case pointing in the other direction, Julian, did not
involve a double jeopardy question. Instead, the defendant was convicted on
two section 924(j) counts because he used two firearms in committing a murder
in connection with what was both a crime of violence and drug offense (robbery
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                                      No. 15-50762
of a drug dealer). 633 F.3d at 1251–52. The way the case was charged actually
supports the view that punishment should not be imposed for both a section
924(c) and a section 924(j) violation. The defendant was not charged with
separate section 924(c) offenses; the murder counts listed a violation of both
section 924(c) and section 924(j) as giving rise to a single offense. Id. at 1252.
The district court sentenced the defendant to consecutive life sentences for the
two convictions. Id. On appeal, the defendant argued that the consecutive
sentences were not required because section 924(j) is a separate offense to
which section 924(c)’s prohibition on concurrent sentences does not apply. Id.
The Eleventh Circuit agreed, following the plain language of section
924(c)(1)(D)(ii), which applies the prohibition on consecutive sentences only to
that subsection of the statute.         In doing so, it rejected the government’s
argument that treating section 924(c) and section 924(j) as separate offenses
would create a double jeopardy problem. It did so on the ground that section
924(c) provides for a sentence “‘in addition to’ any other sentence.” Id. 1256–
57 (quoting 18 U.S.C. § 924(c)(1)(A)). But that misread the statute, which
provides only that a sentence under section 924(c) shall be “in addition to the
punishment provided for such crime of violence or drug trafficking crime, 18
U.S.C. § 924(c)(1)(A),” not in addition to “any other sentence.” 15
       We thus follow the majority view in the courts of appeal (and the
government’s view) that there is insufficient indication that Congress intended


       15 Julian also relied heavily on then-governing precedent providing that the means of
committing a section 924(c) offense—use, brandishing, and discharge—are just sentencing
factors, whereas section 924(j) sets forth murder as an element of the offense. 633 F.3d at
1253–55, 1257 (citing Harris v. United States, 536 U.S. 545 (2002)). The Supreme Court has
now reversed course and overruled Harris to hold that section 924(c) sets forth separate
elements that must be proven to a jury. Alleyne, 133 S. Ct. at 2162–63. Julian’s
distinguishing between the two subsections because one sets forth sentencing factors and the
other an element thus no longer holds. They all set forth elements, yet that would not cause
one to say that a defendant could be sentenced twice under section 924(c) for both carrying
and brandishing a firearm.
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                                  No. 15-50762
sentences to be imposed under both subsection 924(j) and the lesser included
offense of subsection 924(c) for the same conduct to overcome the
Blockburger presumption.     The Double Jeopardy Clause requires that we
vacate Olgin’s section 924(c) conviction for brandishing.
                                       V.
      The convictions on the drug conspiracy count are not challenged on
appeal.   Two of the defendants, Gonzales and Olgin, do challenge their
sentences for that offense, contending that a cross reference for murder should
not have been used in their Guidelines calculation.
      The cross reference elevates the offense level in a drug case to that of a
murder case “[i]f a victim was killed under circumstances that would constitute
murder . . . .” U.S.S.G. § 2D1.1(d)(1). Use of the offense level for murder
resulted in a Guidelines range of life in prison. Although the district court
could not impose that life sentence in light of the statutory maximum for the
drug charge, the elevated Guidelines range resulted in the defendants being
sentenced to that maximum, which is twenty years.
      Gonzales objected to the cross reference in the trial court; Olgin did not.
But the different standard of review does not matter as we find the cross
reference was properly applied.
      The defendants’ challenge to the cross reference is essentially the same
as the argument we have already rejected challenging the evidentiary basis for
Pinkerton liability on the murder count.         Indeed, the relevant conduct
principles of the Guidelines largely track the Pinkerton standard.            For
sentencing purposes, a defendant can be liable for conduct that is (1) “within
the scope of the jointly undertaken criminal activity,” (2) “in furtherance of
that criminal activity,” and (3) “reasonably foreseeable in connection with that
criminal activity.” U.S.S.G. § 1B1.3(a)(1)(B). For the reasons stated above,
Lamb’s murder was a foreseeable act within the scope of the drug conspiracy
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                                 No. 15-50762
each defendant entered into. And our vacating of Gonzales’s murder conviction
because the jury did not find Pinkerton liability for him is of no consequence to
finding him responsible for the murder as a sentencing matter. See United
States v. Rodriguez-Reyes, 714 F.3d 1, 13–14 (1st Cir. 2013) (finding that
application of first-degree murder cross reference following defendant’s drug
conviction was not plain error, even though defendant was acquitted of
murders in state court); United States v. Smith, 224 F.3d 766, 2000 WL 992504,
at *6–7 (5th Cir. 2000) (finding that, even though the defendant was not
convicted of murder, the district court did not err in applying the Section 2D1.1
cross reference). There is no error in the twenty year sentences on the drug
count.
                                     * **
      The result of this appeal—the murder conviction of one defendant being
upheld while the conviction for three other defendants who seem at least as
culpable being set aside—will no doubt seem arbitrary. Some arbitrariness is
inevitable in a jury system, but the Founders thought it would be more
prevalent in a system in which judges decided guilt: “Arbitrary impeachments,
arbitrary   methods   of   prosecuting    pretended   offenses,    and   arbitrary
punishments upon arbitrary convictions, have ever appeared to me to be the
great engines of judicial despotism; and these have all relation to criminal
proceedings.”   See THE FEDERALIST NO. 83, at 467 (Alexander Hamilton)
(Clinton Rossiter ed., 1961).   The justice system they designed to protect
against those concerns does not allow us to uphold convictions based on a
theory that the trial court adopted but the jury rejected.
      To summarize our ruling, for the Count One drug conspiracy charge, we
AFFIRM the sentences of Gonzales and Olgin. For the Count Two section
924(c) charge, we AFFIRM Gonzales’s and Paredes’s convictions; VACATE
Castillo’s conviction and REMAND for resentencing under the lesser included
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                               No. 15-50762
carrying offense; and VACATE Olgin’s conviction.         For the Count Three
section 924(j) charge, we VACATE Castillo’s, Gonzales’s, and Paredes’s
convictions and AFFIRM Olgin’s conviction.       The case is remanded for
Castillo’s resentencing and entry of judgment for all defendants consistent
with this opinion.




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                                  No. 15-50762
EDITH BROWN CLEMENT, Circuit Judge, dissenting as to Part III.A:
      The jury found Castillo, Gonzales, and Paredes guilty of murder in
connection with using a firearm during a drug trafficking offense, in violation
of 18 U.S.C. § 924(j). The majority’s decision to vacate the Section 924(j)
convictions ignores the jury’s general verdicts of guilty. See United States v.
Bran, 776 F.3d 276, 280 (4th Cir. 2015) (explaining that “the jury’s general
guilty verdict alone is sufficient to uphold [defendant’s] § 924(j) conviction”).
      Musacchio v. United States, although not directly controlling, is
instructive. See 136 S. Ct. 709 (2016). The Supreme Court held that “a
sufficiency challenge should be assessed against the elements of the charged
crime, not against the erroneously heightened command in the jury
instruction.” Id. at 715. A special interrogatory requiring the jury to select a
theory of liability is analogous to an additional, unnecessary element in a jury
instruction. The special interrogatories here did not concern a material
element of guilt, and the unnecessary inclusion of the special interrogatories
imposed a heightened burden on the government. “When a jury finds guilt after
being instructed on all elements of the charged crime plus one more element,
the jury has made all the findings that due process requires.” Id. I would
consider only whether there is sufficient evidence to support the general
verdicts that Castillo, Gonzales, and Paredes committed murder in connection
with using a firearm during a drug trafficking offense.
      “Sufficiency review essentially addresses whether ‘the government’s case
was so lacking that it should not have even been submitted to the jury.’” Id.
(quoting Burks v. United States, 437 U.S. 1, 16 (1978)). There was clearly
enough evidence to submit the Section 924(j) charges to the jury. The majority
concedes that “evidence exists to support Pinkerton liability for all the
defendants as the murder was a foreseeable act committed in furtherance of
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                                   No. 15-50762
the drug trafficking conspiracy.” There is sufficient evidence, under the theory
of conspirator’s liability, to support the jury’s general verdicts of guilty. I would
not vacate Castillo’s, Gonzales’s, and Paredes’s Section 924(j) convictions.
Accordingly, I dissent.




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