Extent of Conspiracy, Aiding & Abetting Liability Among Issues Addressed in Prison Murder Case

U.S. v. Rosalez, 2013 WL 1277004 (3/29/13) (Col.) (Published) - The 10th stretches conspiracy and aiding and abetting liability very far and substantially restricts Simmons v. U.S., 390 U.S. 377 (1968) [re: use at trial of a defendant's suppression hearing testimony]. Two of the defendants asked [ordered?] other inmates, as part of a gang matter, to beat an inmate so severely that he would need a medical transfer from FCI-Florence. Another defendant acted as the lookout. 4 inmates beat up the victim with padlocks. 2 of them left after a while saying, that was enough. But two others kept up the attack. The victim died. The 3 defendants in this case were jointly tried and convicted of conspiracy to assault an inmate and second degree murder. It was okay for the jury to convict for murder based on either an aiding and abetting or conspiracy theory. The jury instructions were fine. There was no need for the jury to find the defendants intended the result committed by the principals. For aiding and abetting it was enough that the defendants reasonably expected the victim's death and it was enough for conspiracy liability that the consequence could be reasonably foreseen, even if the defendant was unaware certain offenses were going to be committed. Death did not have to be within the scope of the conspiracy. The conspiracy continued until all the inmates stopped beating the victim. Death was reasonably foreseeable, given the number of attackers, their weapons and the severe beating that was anticipated. It was not a constructive amendment of, or a variance from, the indictment that the defendants could be convicted based on a conspiracy theory where the indictment murder count only charged aiding and abetting, not conspiracy. An indictment need not plead the government's theory of liability. The defendants weren't surprised, particularly in light of the assault conspiracy count.

The admission of the suppression hearing testimony of one of the defendants did not violate Simmons. On the bright side, the 10th found the issue preserved by the defendant's objection and the government's response, which distinguished Simmons . But the 10th held Simmons was inapplicable because: in Simmons, the defendant had to testify at the suppression hearing to establish standing, whereas here the defendant didn't have to testify to assert his challenge that his statements to an agent were involuntary; and, unlike in Simmons, the defendant here gave "patently false, evasive and ever-shifting answers to basic questions." [The district court got so mad at the defendant it held the defendant in contempt and ordered him to be held in solitary confinement]. So the defendant was never faced with the Simmons dilemma of surrendering Fifth Amendment rights to pursue Fourth Amendment rights. So something else to worry about when deciding whether your client should testify at the suppression hearing.

The district court violated a defendant's cross-examination rights when it refused to allow the defendant to conduct a redirect examination of a witness presented by a co-defendant. The defendant did not question the witness initially, but the witness said some incriminating things when the government crossed him. But the error was harmless beyond a reasonable doubt. The only unique testimony of the witness was that the victim wanted to be the Surenos leader for the housing unit and asked the witness to side with him rather than the defendant. There was enough other evidence of the animosity between the victim and the defendant so that the witness's testimony wasn't that important to the government.