United States v. Brown, David

In the

United States Court of Appeals

For the Seventh Circuit

Nos. 00-2565 & 00-3026

United States of America,

Plaintiff-Appellee,

v.

David Brown and Bruce Troxel,

Defendants-Appellants.

Appeals from the United States District Court

for the Northern District of Indiana, Hammond Division.

No. 99 CR 61--James T. Moody, Judge.

Argued January 18, 2001--Decided May 16, 2001

Before Bauer, Manion, and Diane P. Wood,

Circuit Judges.

Bauer, Circuit Judge. David Brown and

Bruce Troxel, Gary, Indiana police

officers, were convicted of depriving an

individual of his constitutional rights

under color of law in violation of 18

U.S.C. sec. 242 and of using a firearm in

a crime of violence in violation of 18

U.S.C. sec. 924 (c). Defendants ask us to

reverse their convictions because: (1)

the district court improperly admitted

other occurrence evidence stemming from

an altercation between Brown and a nude

dancer, Jill Carda ("the Carda

incident"); and (2) the district court

improperly instructed the jury. We

decline this invitation.

I. Background

On July 14, 1998 around 9:00 PM, Tab

Wilhoit delivered a load of steel to D&W

Transfer. He parked in D&W’s lot and

decided to take a nap. Wilhoit lowered

the landing gear on the trailer and

locked his cab to the trailer. In that

position, Wilhoit could not move his cab.

Unbeknownst to Wilhoit, drug deals were

common in the parking lot. Wilhoit fell

asleep with his window partially down. He

awoke at 2:00 AM to find a man sticking

his head through the window and asking

for money. Wilhoit gave the man a few

dollars and told him to leave. Wilhoit

got out his pocket knife to defend

himself in case the man returned and pre

pared to move his cab.

Next door, off-duty police officers

Brown and Troxel whiled away the night of

July 14 socializing and drinking at the

Caddy Shack Lounge ("Lounge"), a strip

club and bar. Although Brown moonlighted

at the Lounge as a bouncer, he was not

working that night or early the next

morning. Around 2:00 AM, Brown and Troxel

heard that a man was dealing drugs in the

D&W lot and went to investigate. They

encountered a man on a bicycle who

admitted that he was selling drugs,

pointed out Wilhoit’s cab, and told the

officers that he got a few dollars from

the man in it.

As Brown and Troxel approached Wilhoit’s

cab, Wilhoit turned his lights on. Troxel

approached the passenger’s side of

Wilhoit’s cab, demanded that Wilhoit open

the "mother- fucking door right now" and

held his police badge up to the window.

Troxel was not wearing a police uniform.

Wilhoit refused to open the door because,

he said, he thought Troxel was going to

rob him. Wilhoit did not believe Troxel

was a police officer because Troxel was

dressed in plain clothes and there was no

police cruiser in the immediate vicinity.

Troxel went to the driver’s side window,

which was rolled down 6 to 8 inches.

Troxel put his badge through the driver’s

window, demanding that Wilhoit exit his

cab. When Wilhoit refused, Troxel reached

inside the cab; with one hand he choked

Wilhoit by twisting his thick gold

necklace tightly around his neck. With

the other hand, Troxel grabbed Wilhoit’s

hair and attempted to pull him out the

window. Terrified, Wilhoit stabbed Troxel

in the arm 5 to 6 times with his pocket

knife.

Seeing Troxel’s injuries, Brown, dressed

in a police jumpsuit, approached both the

passenger and driver’s side of the cab

demanding that Wilhoit exit the truck.

Wilhoit continued to refuse. Brown leapt

onto the hood of the cab and identified

himself as a police officer, showing

Wilhoit the word "POLICE" on his back.

Despite Brown’s demands, Wilhoit

steadfastly remained in the cab. Brown

pulled his gun and pointed it at Wilhoit.

Convinced he was being robbed, Wilhoit

yelled into his CB radio for someone to

call the police. Brown responded, "I am

the fucking police! Unlock the door!" and

kicked the windshield repeatedly. Wilhoit

finally opened his cab door.

According to Wilhoit, Troxel struck him

in the face with a hard object, and both

defendants repeatedly punched and kicked

Wilhoit. Wilhoit attempted to defend

himself, but Brown threw him to the

ground. The defendants put a gun to

Wilhoit’s head and threatened that if he

told anyone of the incident, they would

kill him and his family. They told

Wilhoit that they should "kill him now"

and throw his body out back in the

transfer lot. Defendants took Wilhoit’s

wallet and asked him where he lived.

Wilhoit answered truthfully, but his

driver’s license reflected a previous

address. Defendants accused Wilhoit of

lying, smashed the side of his truck with

a hammer, and reiterated that they would

kill him if he told anyone of the

altercation.

After defendants left, Wilhoit found

Troxel’s wallet lying on the ground. He

took it, rolled up the truck’s landing

gear, and drove to the first truck stop

in Michigan where he called the Michigan

state police. The Michigan police found

an upset Wilhoit bleeding from his face

and wearing a ripped shirt. Wilhoit

turned over Troxel’s wallet, and the

Michigan police investigated. The

investigation disclosed that Brown and

Troxel failed to report the incident to

the Gary police department, which the

department required officers to do when

they used force against civilians or were

themselves injured.

Defendants were charged with violating

18 U.S.C. sec. 924(c)(1) & (2) for

knowingly using and carrying a firearm in

the commission of a violent crime, and 18

U.S.C. sec. 242 for depriving Wilhoit of

his constitutional right to be free from

intentional use of unreasonable and

excessive force by one acting under color

of law. The latter claim is grounded in

the Fourth Amendment right to be free of

unreasonable searches and seizures.

The Carda incident occurred roughly one

year prior to the altercation with

Wilhoit. While Brown was working as a

bouncer at the Lounge, he pulled a chair

out from under an exotic dancer, Jill

Carda, as she tried to sit down. Carda

confronted Brown. Brown threw Carda into

a wall and then face down onto the

ground. He choked her by stepping on the

back of her neck and pulling her arm

backward until it cut off her breath.

Brown asked the Lounge owner whether he

should "take Carda out back and finish

her off."

The government planned to use the Carda

incident to prove the intent element of

sec. 242. Before trial, defendants

submitted a motion in limine to exclude

this incident, theorizing that under Fed.

R. Evid. 404(b), it would constitute an

inadmissible prior bad act. After

initially granting the motion in limine,

the court reversed course and ruled the

Carda incident admissible.

The jury convicted defendants on both

counts. Brown and Troxel now contest

their convictions, arguing that the Carda

incident should have been excluded from

evidence as a prior bad act under Fed. R.

Evid. 404(b) and that flaws in jury

instruction No. 21, given over the

defendants’ objection, denied them a fair

trial.

II. Discussion

A. The Carda Incident

Defendants argued both before the

district court and on appeal that the

Carda incident is an inadmissible prior

bad act under 404(b). We review the

court’s decision to admit evidence under

sec. 404(b) for abuse of discretion. See

United States v. Williams, 216 F.3d 611,

614 (7th Cir. 2000). The district court

admitted the Carda incident based in part

on its judgment that the incident was

probative of the intent element of 18

U.S.C. sec. 242, which makes it a crime

to (1) wilfully (2) under color of law

(3) deprive a person of rights protected

by the Constitution of the laws of the

United States, see United States v.

Bradley, 196 F.3d 762, 767 (7th Cir.

1999) (citations omitted). Evidence of

prior bad acts is properly admitted under

404(b) if the evidence: (1) tends to

establish a matter at issue other than

the defendant’s propensity to commit the

crime charged; (2) is sufficiently

similar and close in time to the matter

at issue to be relevant; (3) supports a

jury finding that the defendant committed

the similar act; and (4) has probative

value that substantially outweighs the

danger of unfair prejudice. See Williams,

216 F.3d at 614.

Defendants dispute the first element of

the 404(b) test, that the Carda incident

sheds light on a matter at issue, because

they argue that defendants’ intent was

not at issue. Intent is automatically at

issue in specific intent crimes. See

United States v. Gellene, 182 F.3d 578,

595 (7th Cir. 1999). Contrary to

defendants’ argument, sec. 242 is a

specific intent crime. See Screws v.

United States, 325 U.S. 91, 103 (1944)

("But as we have seen, the word

’wilfully’ was added to make [sec. 242]

’less severe.’ We think the inference is

permissible that its severity was to be

lessened by making it applicable only

where the requisite bad purpose was

present, thus requiring specific intent

not only where discrimination is claimed,

but in other situations as well.");

Bradley, 196 F.3d at 769-70 (upholding

jury instructions which required specific

intent as correctly summarizing the

"wilfulness" element of 18 U.S.C. sec.

242); United States v. Johnstone, 107

F.3d 200, 207-09 (3d Cir. 1997)

(exploring the role of specific intent in

18 U.S.C. sec. 242); United States v.

Reese, 2 F.3d 870, 880-82 (9th Cir. 1993)

(discussing the specific intent

requirement in 18 U.S.C. sec. 242).

Defendants further argue that the Carda

incident is unnecessary to prove intent

because they did not contest the element.

However, intent is a material issue in

this case, and, subject to some

restrictions not relevant here, the

prosecution is entitled to establish it

by using admissible evidence of their

choosing. See United States v. Williams,

238 F.3d 871, 875 (7th Cir. 2001).

Defendants’ most serious challenge to

the Carda incident contends that it is

not similar enough to the Wilhoit

altercation to be probative of

defendants’ intent to deprive Wilhoit of

his rights. Rather, they argue that it

impermissibly speaks to Brown’s

propensity for violent behavior. See Fed.

R. Evid. 404(b). The admissibility of the

Carda incident presents a close case.

Whether a prior bad act is similar enough

to speak to an issue that 404(b) deems

legitimate is case specific and depends

on the theory employed by the party

lobbying for admission. See United States

v. Torres, 977 F.2d 321, 326 (7th Cir.

1992).

The government urges that the Carda

incident is probative of Brown’s intent

to use his police affiliation to effectu

ate disproportionate and violent

punishment against people who failed to

respect his authority. Defendants argue

that the Carda incident is not probative

because Brown was not acting under color

of law when the incident occurred;

specifically, Brown was not wearing any

police gear. When he worked at the

Lounge, however, Brown drew attention to

his police authority. He insured the

Lounge patrons’ awareness of his

affiliation by regularly wearing his

police uniform and jumpsuit to his job as

a bouncer. Brown’s general emphasis of

his police affiliation diminishes the

importance of the fact that Brown was not

wearing any police uniform on the day of

the Carda incident. When Brown was

working as a bouncer, Carda disrespected

his authority by swearing at him and

challenging him for pulling her chair

away. Brown responded by violently

punishing Carda for her insolence. He

slammed Carda to the ground, choked her,

and threatened to "finish her off."

Similarly, Wilhoit defied Brown by

ignoring his command to exit the truck.

Brown retaliated by damaging Wilhoit’s

truck, beating Wilhoit to the ground, and

threatening to kill him. Given the

government’s theory that Brown intended

to punish people who defied his

authority, we believe that the Carda

incident is probative of Brown’s

retaliatory intent to use excessive force

whenever his orders are ignored or his

authority questioned. The Carda incident

demonstrates more than Brown’s general

propensity for violence. See, e.g.,

Torres, 977 F.2d at 326-28.

Defendants last contend that the

incident was unfairly prejudicial and

encouraged the jury to decide the issue

of guilt based on Brown’s past actions.

The Carda incident, however, added

valuable information about Brown’s intent

to punish defiant individuals. Further,

the judge admonished the jury three

times, once immediately before their

deliberations, that they should consider

the Carda incident only so far as it

spoke to Brown’s intent. Given these fac

tors, the district court did not abuse

its discretion by admitting the Carda

incident.

At any rate, even if the admission into

evidence was error, it was harmless

beyond a reasonable doubt. Error is

rendered harmless when it is clear beyond

a reasonable doubt that a rational jury

would have convicted defendants absent

the erroneously admitted evidence. See

United States v. Swan, 224 F.3d 632, 635

(7th Cir. 2000), amended by 230 F.3d 1040

(7th Cir. 2000). Given the other evidence

in this case, a rational jury would have

found that the defendants intended to

deprive Wilhoit of his right to be free

from excessive use of force even without

evidence of the Carda incident. Wilhoit’s

injuries and the damage to his truck

reflect the disproportionate force the

defendants used to compel his compliance.

This physical evidence and the fact that

Wilhoit was in possession of Troxel’s

wallet bolsters Wilhoit’s version of the

events. Most tellingly, Brown and Troxel

failed to file a police report about the

Wilhoit incident, which the Gary police

department requires when an officer

injures a civilian in the course of his

duties or is injured himself.

B. Jury Instructions

We review the district court’s choice of

jury instructions "as a whole to

determine whether they provide a fair and

accurate summary of the law." Bradley,

196 F.3d at 769. If and when we find the

jury instructions inadequate, we will

reverse defendants’ convictions only if

we believe the jury’s understanding of

the issues to be so misguided that it

prejudiced one of the parties. See Soller

v. Moore, 84 F.3d 964, 969 (7th Cir.

1996) (citations omitted).

Defendants charge that the jury

instruction failed adequately to instruct

jurors to use the "objectively

reasonable" standard when determining

whether defendants used excessive force.

Defendants were convicted under 18 U.S.C.

sec. 242, which protects against the

deprivation by someone acting under color

of the law of "any rights, privileges, or

immunities secured or protected by the

Constitution or laws of the United States

. . . ." In this case, the violation of

sec. 242 stems from unreasonable use of

force during an investigatory stop, which

is prohibited by the Fourth Amendment.

The point of view from which the jury

must evaluate the unreasonable or

excessive use of force claim is therefore

dictated by the Fourth Amendment, and has

been most recently and clearly

articulated by the Supreme Court in the

context of a 42 U.S.C. sec. 1983

violation. In unreasonable or excessive

use of force cases, jurors must determine

whether the use of force was reasonable

by using the "objective reasonableness"

standard; that is, by evaluating the

situation from the viewpoint of "a

reasonable officer on the scene." Graham

v. Connor, 490 U.S. 386, 388, 395-96

(1988). Defendants argue that instruction

No. 21 does not convey that the jurors

should evaluate the events from "the

perspective of the officers at the time

of the unfolding events." However, this

argument is rebutted by the very language

of the instruction:

If you find that a defendant used force

in this incident, you may then consider

whether the force used by a defendant was

necessary in the first place or was

greater than the force that would appear

necessary to a reasonable law enforcement

officer on the scene (emphasis added).

Instruction No. 21 correctly and

adequately summarizes the "objective

reasonableness" standard.

Defendants propose alternate jury

instructions No. 9 and No. 12, which

articulate the "objective reasonableness"

standard in different language than

instruction No. 21. In particular,

instruction No. 12 elaborates on the

definition of "reasonableness" using

language taken from Graham, 490 U.S. at

396. While these alternate instructions

are legally correct, parties are not

entitled to their preferred instructions.

Instruction No. 21 was adequate and we

will not rule that the district court

selected it in error.

The defendants further ask us to reverse

because the jury instructions failed to

address (1) circumstances which justify

police use of deadly force and (2)

defendants’ failure to follow police

procedures. The defense is entitled to

instructions on its case theory only if

(1) the proffered instruction is a

correct statement of the law; (2) the

defense theory is supported by evidence;

(3) the defense theory is not part of the

charge; and (4) failure to give the

instruction would deny defendants a fair

trial. See United States v. Wilson, 134

F.3d 855, 864 (7th Cir. 1998). Defendants

fail to establish that the court’s

refusal denied them a fair trial.

Instruction No. 21 addressed use of

force:

A law enforcement officer is justified in

the use of any force which he reasonably

believes to be necessary to effect an

investigatory stop, arrest, or to hold

someone in custody and of any force which

he reasonably believes to be necessary to

defend himself or another from bodily

harm.

The district court did not abuse its

discretion when it chose not to address

the use of deadly force in particular.

Further, any failure to instruct on

police procedures did not deny defendants

a fair trial. Defendants lobbied to

inform the jury that failure to file a

police report did not itself constitute a

violation of Wilhoit’s constitutional

rights, however, the government never

argued such a theory. Rather, the

government contended that the beating

violated Wilhoit’s rights and pointed to

defendants’ failure to file a police

report as evidence of defendants’ intent.

Therefore, the district court did not

abuse its discretion by refusing to

instruct the jury on deadly force and

report filing.

We Affirm defendants’ convictions.