IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN ...

Case 7:14-cr-00227-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. 1180 (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

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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.

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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, 2014. 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

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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

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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 (11th Cir. 1985). 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 848-49. 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

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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, 996-98 (9th Cir. 2011) (Aryan Brotherhood
RICO-related murders within prison); United States v. Walker, 142 F.3d 103, 114 (2d Cir. 1998)
(killing of rival drug dealer in relation to “crack” conspiracy); United States v. Mothersill, 87
F.3d 1214, 1217-1218 (11th Cir. 1996) (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 (10th Cir. 2000)
(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.
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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 79701
(432) 686-4110

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CERTIFICATE OF SERVICE/CONFERENCE

I hereby certify that on the 25th 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

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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. )

ORDER

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 _______________ 2015.

________________________________
HONORABLE ROBERT JUNELL
Senior United States District Judge

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