Case 7:14-cr RAJ Document 80 Filed 02/25/15 Page 1 of 9

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1 Case 7:14-cr RAJ Document 80 Filed 02/25/15 Page 1 of 9 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS MIDLAND-ODESSA DIVISION UNITED STATES OF AMERICA, Plaintiff, v. NO. MO-14-CR-227 LIZ SANCHEZ HERNANDEZ RAYMOND HERNANDEZ OLGUIN, JR. RUDOLFO ROMERO PAREDES STACEY LOUIS CASTILLO ANTHONY RYAN GONZALES BRIAN ADAN HERNANDEZ, Defendants. GOVERNMENT'S MOTION FOR PRELIMINARY RULING CONCERNING PINKERTON INSTRUCTION Count Three of the Superseding Indictment charges all defendants before this Court, save and except for Brian Adan Hernandez, with the intentional homicide of Sean Lamb. The Government expects that all five defendants in Count Three will contend at trial that they didn t kill anyone; they didn t want anyone to be killed; and they didn t know anyone would be killed. These assertions may well be true in some measure. That doesn t get them off the hook. Under the longstanding doctrine of Pinkerton v. United States, 66 S.Ct (1946, a conspirator can be held responsible for a substantive crime committed by another conspirator, provided the substantive crime furthered the conspiracy in some way and was foreseeable. These five defendants are all charged with a methamphetamine conspiracy in Count One. At trial, the Government will readily prove that the brutal murder of Sean Lamb furthered the conspiracy s goals and was eminently foreseeable to all five of these 1

2 Case 7:14-cr RAJ Document 80 Filed 02/25/15 Page 2 of 9 defendants. One might even say that Lamb s murder was a tragically predictable consequence of the sordid methamphetamine trade in which all were involved. The Government asks the Court for a preliminary ruling that in relation to Count Three, if the Government proves up the required predicates at trial, it intends to instruct the Court in accordance with the Pinkerton doctrine, which is set forth in Fifth Circuit Pattern Jury Instruction (Criminal 2.22 (2012. The Government would show the Court was follows: FACTUAL BACKGROUND CONCERNING HOMICIDE This prosecution concerns the murder of Sean Lamb, who was killed because a group of methamphetamine traffickers blamed him and a couple of his friends for stealing a large cache of drugs. The Government will endeavor to prove at trial this basic narrative: On May 7, 2014, Lamb, 22, was released from the Ector County Law Enforcement Center following his convictions for a couple of misdemeanor offenses. When he got out, Lamb went to stay at 1101 Fitch Apartment #404, in Odessa, Texas, the residence of Liz Hernandez ( Liz and her seventeen year old son, Brian Hernandez. ( Brian. Lamb had a loose acquaintance with Liz and Brian arising out of mutual participation in narcotics trafficking. By May 10, 2014, Lamb and two other young men who were also staying with Liz left the premises in her vehicle, a Chevrolet Tahoe. In the wake of their departure, Liz and others came to believe and accuse Lamb and the other two young men of taking a large amount of methamphetamine, likely several pounds worth, with them from her residence when they left. Liz regularly stored methamphetamine for her brother, Ruben James Hernandez ( Ruben. Liz notified Ruben concerning the stolen narcotics and the identities of those she believed responsible. Liz also thought that Lamb had stolen her car. 2

3 Case 7:14-cr RAJ Document 80 Filed 02/25/15 Page 3 of 9 Ruben requested the aid of his nephew, Brian, to locate Lamb and regain possession of his methamphetamine. Brian was able to communicate with Lamb through text messages and finally a telephone call on May 13, During the call, Brian, following Ruben s instructions, arranged a meeting with Lamb using a ruse that Brian needed to return some clothes Lamb had left at Liz s apartment. In actuality, Ruben and some cohorts planned to confront Lamb about the stolen methamphetamine. Brian asked to meet Lamb in an alley near the 1600 Block of N. Dixie in Odessa. Lamb agreed. Brian passed on all relevant information about the planned meeting to Ruben. Things rapidly escalated. Ruben planned far more than a mere confrontation with Lamb. He intended to abduct him, and very likely kill him in retaliation for the perceived stolen methamphetamine. On May 13, Odessa police officers were dispatched to the 1600 block of N. Dixie Street in Odessa in reference to a subject with a gun. According to a 911 caller, a person had been seen in that vicinity holding an AK-47 style rifle. Police responded. Two witnesses were located near the scene. The witnesses told OPD officers that they had just been in a blue Ford Expedition driven by Lamb, who had been giving them a ride. During the ride, Lamb received a phone call. After he hung up, Lamb said he needed to meet someone to pick up some clothes. The two witnesses said they saw Lamb forcibly abducted in his own vehicle in the alley of the 1600 block of N. Dixie by multiple armed actors, and then saw Lamb driven away in that same vehicle. The two witnesses said they were ordered from the Expedition at gunpoint and told to walk away. Lamb was ordered to move over to the passenger seat. The witnesses, and Lamb, complied with these instructions. A man then entered the Expedition to drive it. Other men got in the back seat. At least one other vehicle followed the 3

4 Case 7:14-cr RAJ Document 80 Filed 02/25/15 Page 4 of 9 Expedition as it departed the alley. Additional bystanders in the area also reported to police that they had seen multiple people with guns surrounding a large SUV. Less than an hour later, OPD officers were dispatched to the area of 30 Neta Place in Odessa in reference to a shots fired call. Upon arrival, they discovered a deceased male victim, later identified as Lamb, inside a blue Ford Expedition in the right front passenger seat. Lamb had suffered multiple gunshots to his torso and head. The shots appeared to have been fired from behind Lamb, through the seat. Subsequent investigation determined that a man named Noe Galan actually shot Lamb. Galan and Ruben have each fled from Odessa, and are believed to be in Mexico. They remain fugitives. Ruben and Galan have substantial links to Mexican cartel activity. This Court has issued arrest warrants for each. At trial, the Government intends to prove that the other individuals named in the Indictment played various roles in the events surrounding Lamb s abduction and murder. Some aspects of Liz and Brian s roles are outlined above. In addition to those aspects, the Government will establish that Castillo and her husband Gonzales brought to the group the weapons that were brandished in Lamb s abduction, one of which Galan used to kill Lamb. Liz, Gonzales and Paredes all helped Ruben and Galan abduct Lamb. In the Ford Expedition, after Lamb had been captured, Paredes handed Galan the firearm that was used to kill him. Olgin was the driver who entered the Ford Expedition in which Lamb was a captive, and Olgin drove it to the Neta Place location where the murder was carried out. After the murder, Castillo and Gonzales drove Ruben to the Mexican border to facilitate his escape. Amongst Liz, Olgin, Paredes, Castillo and Gonzales, most have admitted some degree of involvement in Lamb s abduction. All have abjured any knowledge or intent that Lamb was to be 4

5 Case 7:14-cr RAJ Document 80 Filed 02/25/15 Page 5 of 9 killed, however. The consistent version of events amongst this group is that all understood that Lamb and his two friends had ostensibly stolen Ruben s methamphetamine, and they acknowledge they agreed to help Ruben do something about it. They maintain, however, that they believed the intent of the joint endeavor on May 13 was to scare, or perhaps whoop Lamb into revealing the location of the stolen drugs but not to kill him. LEGAL ARGUMENT Even if it is true that Liz, Olgin, Paredes, Castillo and Gonzales did not know about or intend Lamb s murder, the longstanding Pinkerton doctrine makes them nonetheless liable for it. The pioneering decision applying Pinkerton to a drug murder is United States v. Alvarez, 755 F.2d. 830 (11 th Cir In that case, three cocaine co-conspirators were charged with the murder of an ATF agent that occurred during a chaotic shoot-out in the midst of an abortive undercover operation. None of the three, however, fired any weapon. The trial court charged the jury on the murder with Pinkerton language, and the defendants were convicted. All three claimed on appeal that the murder of an agent by one of their cohorts was not a foreseeable consequence of their cocaine trafficking, and indeed that the trial court s instructions on the murder were an unwarranted, even grossly unfair extension of the Pinkerton doctrine. The Alvarez panel disagreed. Noting in particular the nexus between weapons and drugs, and the fact that the conspiracy involved reasonably large amounts of cocaine and cash, the court held a reasonable jury could conclude that the killing of the agent was a foreseeable consequence of the conspiracy. Id. at So long as a defendant s involvement in such a conspiracy was neither minor nor was the defendant lacking actual knowledge of at least some of the circumstances and events leading up to the murder[,] the court explained it is not unfair to impose a murder conviction despite the fact the murder was not within the originally 5

6 Case 7:14-cr RAJ Document 80 Filed 02/25/15 Page 6 of 9 intended scope of the conspiracy, and even when the murder results wholly from an unintended turn of events. Id. at 850. Subsequent decisions have followed Alvarez in upholding Pinkerton liability for homicides where conspirators did not intend a particular killing. See, e.g,, United States v. Bingham, 653 F.3d 983, (9 th Cir (Aryan Brotherhood RICO-related murders within prison; United States v. Walker, 142 F.3d 103, 114 (2d Cir (killing of rival drug dealer in relation to crack conspiracy; United States v. Mothersill, 87 F.3d 1214, (11 th Cir (pipe-bomb killing of a trooper in relation to a drug and racketeering conspiracy; but see, United States v. Cherry, 217 F. 3d 811, 817 (10 th Cir (signaling, but not explicitly deciding, that Pinkerton liability for first-degree murder, at least in a manner as expansive as that permitted by Alvarez, would not be recognized in that circuit. 1 In this case, there is nothing remotely unfair about instructing on Pinkerton liability for Liz, Olgin, Paredes, Castillo and Gonzales. At minimum, all were personal participants in an effort to intimidate Lamb to recover a large amount of methamphetamine. They helped carry out a violent and forcible abduction of Lamb. They knew guns were going to be involved, at least in the intimidation and abduction. They surely therefore could have foreseen that things would proceed such that Lamb, if he did not cough up the methamphetamine as Ruben demanded, would die at the hands of one of their co-conspirators. They could even have easily foreseen that Ruben might have intended to have Lamb killed all along. PRAYER AND REQUEST FOR HEARING WHEREFORE, the United States respectfully requests that this Court preliminarily hold it intends to use Pattern Jury Instruction (Criminal 2.22 (2012 in relation to Count Three, so long as the Government proves up each of the defendant s involvement in a significant drug conspiracy and the connection between that conspiracy and Lamb s death. 1 The Government can locate no Fifth Circuit case addressing Pinkerton s application to a homicide. 6

7 Case 7:14-cr RAJ Document 80 Filed 02/25/15 Page 7 of 9 The Government requests a hearing on its Motion, for two reasons. First, because the Government believes the defendants would benefit from personally hearing the Government s position on this matter to help them understand their potential sentencing exposure if they do not negotiate a plea. Second, because if the Court decides it is not inclined to follow Alvarez and utilize PJI 2.22 as to Count Three, this count cannot get to a jury and the Government will need to consider its appellate options. Respectfully submitted, RICHARD L. DURBIN, JR. Acting United States Attorney /s/ John Klassen WILLIAM F. LEWIS JOHN S. KLASSEN Assistant United States Attorneys 400 W. Illinois, Suite 1200 Midland, Texas (

8 Case 7:14-cr RAJ Document 80 Filed 02/25/15 Page 8 of 9 CERTIFICATE OF SERVICE/CONFERENCE I hereby certify that on the 25 th day of February, 2015, the foregoing instrument was filed with the Clerk of the Court using the CM/ECF filing system, which will transmit notification of such filing to all counsel for Defendants. All defendants oppose this Motion. /s/ John Klassen JOHN S. KLASSEN Assistant United States Attorney 8

9 Case 7:14-cr RAJ Document 80 Filed 02/25/15 Page 9 of 9 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS MIDLAND-ODESSA DIVISION UNITED STATES OF AMERICA, Plaintiff, v. NO. MO-14-CR-227 LIZ SANCHEZ HERNANDEZ RAYMOND HERNANDEZ OLGUIN, JR. RUDOLFO ROMERO PAREDES STACEY LOUIS CASTILLO ANTHONY RYAN GONZALES BRIAN ADAN HERNANDEZ, Defendants. O R D E R The Government s Motion for Preliminary Ruling Concerning Pinkerton Instruction is set for hearing on March, 2015 at a.m./p.m. IT IS SO ORDERED. SIGNED and ENTERED this day of HONORABLE ROBERT JUNELL Senior United States District Judge 1